IDG42400 - General procedural guidance when making any form of disclosure: Memoranda of understanding

Disclosures involving an on-going exchange of information between HMRC and another public sector body need to be governed by a formal document called a Memorandum of Understanding (MoU). An MoU is not a contract nor is it legally binding. It does not in itself create lawful means for the exchange of information. An MoU simply documents the processes and procedures agreed between the two public sector bodies. All MoUs should be reviewed on a regular basis to ensure they remain up to date and continue to reflect the “as is” position.

One off ad hoc disclosures can be covered by a short Data Usage template (DUA).

MoUs and DUAs are agreed by HMRC and the body with whom information is exchanged. They set out clearly the procedures that the information exchange needs to follow. Links to the External Data Exchange (EDE) Templates for MoUs and DUAs can be found at the bottom of this guidance.

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MoUs and DUAs are not in themselves legal gateways as they have no statutory force. No agreement should be completed and no information should be sent by HMRC until it has been established that the information exchange can lawfully be made. However, MoUs and DUAs perform a number of useful functions such as:

confirm the agreed legal understanding of what the lawful authority is for sharing the information (the only permitted lawful authorities are described at IDG40500;

set out administrative arrangements for the disclosure of information, including commitments to meet the relevant costs, persons involved, timescales, frequency of disclosure etc;

agree the terms under which the data may be disclosed beyond the receiving body, if at all;

provide an audit trail or record for HMRC of all external disclosures of data.

It is important to note that some current MoUs may have been created prior to enactment in 2005 of the Commissioners for Revenue and Customs Act (CRCA) 2005. The CRCA has altered some aspects of information law. If you disclose information to someone and have an existing MoU, you may wish to look again at it. This is particularly important where the basis for disclosure was expressed as ‘public interest’ because all public interest disclosures are now codified (see IDG46050). This means that if a public interest disclosure is not listed at IDG46050 then it will no longer be lawful. 

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There are two types of MoU:-

• the high level or Umbrella.MoU sets out generic requirements covering all information sharing between HMRC and the receiving department (e.g. DWP); and
• the Process MoU sits under the umbrella MoU and sets out the detailed requirements for a specific information exchange (or group of exchanges) between HMRC and the third party.

Typically, there will be a number of process level MoUs sitting below each Umbrella MOU.

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It is mandatory for all ongoing information exchanges with other public sector bodies to be covered by a process level MoU and for one-off exchanges to be covered by a DUA.

Templates for the Process MOU and the DUA are available below for you to use in preparing your own documents. Over time, all process level MoUs will need to be migrated onto the template shown below.

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