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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #69 |
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Connecticut Association of Assessing Officers, Applicant |
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On May 13, 1987, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Connecticut Association of Assessing Officers.
A
In its request, the applicant states that municipal assessors use personal property declarations to ascertain the location, ownership, and value of personal property subject to taxation within their respective municipalities. Each assessor determines the assessed value of all taxable property contained on the declarations and compiles an abstract or "grand list" each year. The abstract or grand list is attested to and kept as a public record.
Under Conn. Gen. Stat. §12-40, all persons having taxable personal property are required to file annually a list of that property. The form of the tax list is prescribed by the Office of Policy and Management (hereinafter "OPM") pursuant to Conn. Gen. Stat. §12-41(g). The applicant notes that the form presently prescribed by OPM does not require the type of detailed information it deems necessary to determine the fair market value of personal property. Some assessors, therefore, have drafted and use additional forms (hereinafter called "Confidential Reports"), without the approval of OPM, to supplement the information provided by taxpayers on the personal property declarations. See Attachments A and B as exemplars. These Confidential Reports contain the name and address or location of a business and the taxpayer's valuation, as taken from his accounting records, of machinery, furniture and fixtures. They also explain the depreciation formula used to assist the taxpayer in completing the Confidential Report.
The applicant claims the Confidential Reports are extremely helpful in valuing personal property. Assessors use these forms to substantiate the declaration made by a taxpayer and to compare reported declaration figures from year to year. Furthermore, the applicant claims corporate personnel who fill out such forms expect the information they supply will be kept confidential. Some corporate executives are reluctant to file Confidential Reports because they consider the information requested to be of a "proprietary nature" or confidential by virtue of being derived from federal income tax returns. For instance, some assessors request information relating to the original cost, disposition, and selling price of certain types of equipment. Many corporate executives consider such information to be "proprietary information" and have requested that it not be released to the public without their prior written consent.
The applicant states that some assessors use Confidential Reports particularly in assessing business industrial personal property and have categorized information they request taxpayers to supply as follows:
a. The original cost, including transportation and installation of machinery, office furniture and fixtures, computer equipment, and other assets, by year of acquisition, and their net depreciated value by year excluding their total net depreciated value. See Attachment A, section a.
b. The cost, depreciation and book value of the general ledger (machinery, office furniture and equipment', signs and other fixed assets) for the years specified and the cost of fully depreciated assets still in use. See Attachment A, section b.
c. The name and address of the owner of leased, loaned rented equipment and the value, monthly rental and description of such equipment. See Attachment A. section c.
d. The name and address of the lessee of leased, loaned or, rented equipment and the lease number, model number, serial number, length of the lease, monthly rent, year of manufacture and description of such equipment. See Attachment B. section d.
e. The new retail list price of leased, loaned or rental non-computer equipment by year of acquisition and its net depreciated value by year of acquisition excluding its total net depreciated value. See Attachment B. section e.
f. The new retail list price of leased, loaned or rental computer equipment by year of acquisition and its net depreciated value by year of acquisition excluding its total net depreciated value. See Attachment B, section f.
B
In essence, the applicant seeks the Commission's opinion as to whether the information contained in the so‑called Confidential Reports used by some assessors to determine a taxpayer's personal property declaration (Conn. Gen. Stat. §12‑42), is exempt from public disclosure under Conn. Gen. Stat. §1-19(b)(5).
C
The exemption to disclosure for trade secrets found in Conn. Gen. Stat. §1‑19(b)(5), is in two parts. The first part defines trade secrets for purposes of the Freedom of Information (FOI) Act as:
unpatented, secret, commercially valuable plans, appliances, formulas, or processes. which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person and which are recognized by law as confidential…
It is clear the Confidential Reports used by some assessors to determine a taxpayer's personal property declaration do not fall within this portion of the definition of trade secrets.
The second part of the Conn. Gen. Stat. §1-19(b)(5) definition of trade secrets refers to
Commercial or financial information given in confidence, not required by statute.
It is this provision that must be analyzed in depth in order to answer the question posed by the applicants.
The FOI Act embodies a broad and strong legislative policy in favor of the open conduct of government and free access to government records. Board of Trustees of Woodstock Academy v FOI Commission, 181 Conn. 544, 550 (1980). In effect, this is a corollary to a fundamental role of statutory construction that when a statute creates an exception to a general rule (in this instance, the general rule is public access to records received by a public agency), the exception is to be strictly construed and its language is not to be extended beyond its evident intent. Willoughby v. New Haven, 123 Conn. 446, 454 (1937). Thus, the Commission is obliged to interpret strictly and narrowly the operative provisions of Conn. Gen. Stat. §1-19(b)(5).
In order for the information contained in the Confidential Reports to be exempt from public disclosure under Conn. Gen. Stat. §1-19(b)(5), all three of the statutory requirements under that exemption must be met. First, the Commission must determine whether the subject information constitutes "commercial or financial information,” it is the Commission's opinion that the information contained in the Confidential Reports constitutes "commercial information" within the meaning of Conn. Gen. Stat. SI‑19(b)(5) and the first component of that exemption is met.
Second, the Commission must determine whether the subject information is "given in confidence." In this regard, two factors are relevant, both of which the Commission believes must be present before this element of the exemption can be met. Initially, the taxpayer submitting the information must request confidentiality. If that factor is met, then the agency still must make its own independent evaluation of the confidential nature of the information. For example, even if the taxpayer requests confidentiality, it is the Commission's opinion that the information is not given in confidence for purposes of the exemption if that same information is available to the public from other sources. Accord, Town & Country House & Homes Service, Inc. v. Evans,. 150 Conn. 314, 320 (1963). (" . . . where the identity of the customers is readily ascertainable through ordinary business channels or through classified business or trade directories, the courts refuse to accord to the list the protection of a trade secret").
The applicant states that taxpayers who fill out the Confidential Reports request confidentiality. The Commission, however, is unable to determine in the context of these proceedings whether the specific information requested is available from other sources. If the information requested, however, is not available from other sources and the responding taxpayers request confidentiality, then in those circumstances, it the Commission's opinion that the subject information would be "given in confidence" within the meaning of Conn. Gen. Stat. §1‑19(b)(5) and the second component of that exemption would be met.
Third, the Commission must determine whether the subject information is required by statute. The exemption will not apply if the information requested on the Confidential Reports is required by statute. According to Conn. Gen. Stat. §12-40, the assessors must publish notices requiring taxpayers to bring in written or printed lists of taxable property belonging to them by October lst of that year. Taxpayers, however, are not required to file a tax list for certain types of property pursuant to Conn. Gen. Stat. §12-41(e). Thus, for certain types of property, there is no requirement, by statute, that a taxpayer provide a tax list.
The secretary of OPM is mandated to provide a form f or the tax list that will be used by personal property owners in each municipality for the purpose of listing property under Conn. Gen. Stat. §12-41(g). In addition, under Conn. Gen. Stat. §12-41(g), the assessors may use forms, subject to the approval of OPM, in "carrying out the statutory provisions" regarding the personal property declaration. The statutory language of Conn. Gen. Stat. §12-41(g) does not require assessors to use additional forms. Moreover, the assessors have drafted these Confidential Reports, and use them, without the approval of OPM. Furthermore, the commission is unaware of any other law that requires taxpayers to supply assessors with the information contained in the Confidential Reports. Consequently, in the absence of any express legal authority that would enable assessors to compel disclosure of the information at issue, it is the Commission's opinion that such information, when given to assessors, is "not required by statute" within the meaning of Conn. Gen. Stat. §1‑19(b)(5). Thus, the third component of that exemption is met.
E
Based on the foregoing facts and analysis, it is commission's opinion that the information described more fully in paragraphs a-f on page 2, above, is exempt from mandatory public disclosure when "given in confidence," within the meaning of Conn. Gen. Stat. §1‑19(b)(5) as explained herein. Whether particular information on a Confidential Report is "given in confidence" obviously must be left to a case by case determination based on the specific facts presented.
By Order of the Freedom of
Information Commission
________________________
Curtis Cofield, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Catherine
H. Lynch,
Acting Clerk of the Commission