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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #87 |
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Commissioner of Revenue Services, Applicant |
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On August 24, 1994, the Commission considered and agreed to respond to a request for an advisory opinion filed by the Commissioner of Revenue Services.
A
In his request, the applicant notes the enactment of P.A. 93-382, §52(a), codified as Conn. Gen. Stat. §32-349(a), which reads:
There shall be established a one‑stop business registry in the department of economic development. The secretary of the office of policy and management shall coordinate the establishment of the business registry, which shall be operational by July 1, 1995. The registry shall provide the following services to any person, firm or corporation engaged in or intending to engage in business activities in the state: (1) Access by computer network to all applicable forms relating to registration, regulatory, licensing, permitting, and approval requirements of each state agency which may have jurisdiction over the activities of such person, firm or corporation, (2) assistance in the completion of all such forms, (3) centralized collection of any fees required to be paid by the person, firm or corporation pursuant to registration, regulatory, licensing, permitting, and approval requirements of state agencies and distribution to each such agency of any such fees, (4) submission of completed forms to state agencies by computer network and (5) liaison with all agencies receiving such completed forms to ensure that the forms are processed promptly.
According to the applicant, the Department of Economic Development ("DED") proposes to meet its responsibilities under this provision by collecting information from one-stop business registrants on a "master business application." The application would contain "general information" which would be furnished to all agencies that may have jurisdiction over the registrant. The application would also contain information concerning the registrant required of specific agencies for their specific registration, regulatory, licensing, permitting or approval purposes. This "agency‑particular information" would be furnished only to the specific agency requiring it.
The applicant states that under Conn. Gen. Stat. §12‑15(a), "tax return information" is required to be kept confidential by the Department of Revenue Services ("DRS”), except in limited circumstances not here applicable. Under Conn. Gen. Stat. §12‑15(d), "tax return information" is defined as:
data received by, recorded by, prepared by, furnished to, or collected by the commissioner [of revenue services] with respect to a return or with respect to the determination of the existence, or possible existence, of liability of any person for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense.
It includes:
a taxpayer's identity, the nature, source, or amount of the taxpayer's income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax collected or withheld, tax, underreportings, tax overreportings, or tax payments, whether the taxpayer's return was, is being, or will be examined or subjected to other investigation or processing.
Because the applicant is concerned that some of the information on the proposed "master business application" with respect to a tax registrant might constitute confidential "tax return information" under §12-15(a), the applicant seeks the Commission's opinion on a series of specific questions. Before responding to these questions, however, the Commission believes that certain general governing principles ought to be clearly laid out.
The legislative purpose behind Conn. Gen. Stat. §32‑349 is clear and compelling. The purpose is to promote economic development in Connecticut by facilitating the processes by which businesses can deal with government agencies. This purpose is consistent with the policy of open and accountable government embodied in the Connecticut Freedom of Information (FOI) Act. Thus, although the one-stop computer network business registry is not explicitly addressed in the FOI Act, the Commission will try to harmonize the two purposes, while taking into account specific exempting statutes such as Conn. Gen. Stat. §12-15.
Conn. Gen. Stat. §1-18a(d) defines a public record as:
any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, whether such data or information be handwritten, typed, tape‑recorded, printed, photostated, photographed or recorded by any other method.
See also Conn. Gen. Stat. S§1‑19(a) and 1‑19a(a)
In addition, Conn. Gen. Stat. S1‑21i(a), in material part, states:
Any denial of the right to inspect or copy records provided for under section 1‑19 [of the General Statutes] shall be made to the person requesting such right by the Public agency official who has custody or control of the public record. . . .
(Emphasis added). The first important question that must be addressed then is who will be the public agency official(s) who will have custody or control of the information collected on the "master business application."
The FOI Act does not establish a mechanism for determining which public agency official has custody or control of specific public records. It is left as an issue of fact to be determined by the Commission in a proceeding in which that issue is raised. Similarly, Conn. Gen. Stat. §32‑349(a) does not explicitly denominate who is to have custody or control of the information that will be collected on the "master business application." All that section provides is that a one-stop business registry will be established in DED and that the Secretary of the Office of Policy and Management will coordinate the establishment of the registry.
In the absence of a statutory designation of the agency official(s) who will have custody or control of the information included in the "master business application," the Commission will be guided by the general principle that the public agencies involved in the registry can collectively determine for themselves which official(s) will exercise custody or control of the "general information" collected and each agency requiring "agency-particular information" can determine for itself which official(s) will exercise custody or control of that information. If the agencies concerned do not make such a determination, then the Commission will look to the actual incidences of custody and control after the registry is implemented to determine in a contested case which agencies are responsible for the "general information" and "agency-particular information" collected.
In answering the individual questions posed herein by the applicant (see Section C, below), the Commission assumes that (1) the "general information" collected for the "master business application" will be in the custody or control of all the agencies involved in the registry and (2) the "agency‑particular information" will be in the custody and control of the specific agency requiring that information for its specific registration, regulatory, licensing, permitting or approval purposes.
If this assumption proves incorrect in any respect, then of course, the Commission's answers to the applicant's individual questions may differ from those stated below. Nevertheless, by applying the general principles outlined above, the Commission believes that it can provide adequate guidance to the agencies involved in the one‑stop business registry.
C
Ouestion 1. Will "general information" in the "master business application" furnished to all agencies involved constitute "tax return information" as defined in Conn. Gen. Stat. §12-15(d)(2)?
Answer 1. No.
Ouestion la. Will the fact that DED (and not DRS) will be gathering "general information" or the fact that that information will not be gathered exclusively for DRS affect its status as "tax return information?"
Answer la. Yes.
Question lb. If "general information" will not constitute "tax return information," will it then constitute a public record subject to disclosure under the FOI Act?
Answer lb. Yes. As a public record, of course, "general information" will be subject to those statutory exemptions to public disclosure that would be available to all the agencies collectively. *See, for example, Conn. Gen. Stat. §1‑19(b).
Ouestion 1c. If the "general information" portion of the "master business application" will constitute a public record while kept by DED, will its status change to "tax return information" once it is furnished to and therefore also kept by DRS?
Answer 1c. No.
Ouestion ld. If the status of "general information" will change once it is furnished to and is kept by DRS, can DRS then prevent its further disclosure by DED?
Answer ld. Not applicable. See Answer 1c, above.
Ouestion 2. Will "agency‑particular information" in the "master business application" required by and furnished only to DRS constitute "tax return information" as defined in Conn. Gen. Stat. §12‑15(d)(2)?
Answer 2. Yes.
Ouestion 2a. Will the fact that the registry (and not DRS) will be gathering DRS‑particular information affect its status as "tax return information?"
Ouestion 2b. If DRS‑particular information will not constitute "tax return information," will it then be a public record subject to disclosure under the FOI Act?
Answer 2b. Not applicable. See Answer 2, above.
Ouestion 2c. If DRS‑particular information in the "master business application" will constitute a public record while kept by DED, will its status change to "tax return information" once it is furnished to and therefore also kept by DRS?
Answer 2c. Not applicable. See Answer 2, above.
Question 2d. If the status of DRS‑particular information will change once it is furnished to and is kept by DRS, can DRS prevent its further disclosure by DED?
Answer 2d. Not applicable. See Answer 2, above.
Question 3. If "general information" or "agency‑particular information" will constitute a public record while kept by DED, can DRS require DED to destroy either "general information" or DRS‑particular information once it is furnished by DED to DRS?
Answer 3. With respect to "general information," DRS by itself cannot require DED, or any other agency involved in the registry, to destroy such information. With respect to "agency‑particular information," DRS can require DED to destroy DRS‑particular information, as long as DRS complies with the laws relating to the retention and destruction of public records. In this regard, DRS might want to contact the State Public Records Administrator. See also Conn. Gen. Stat. §1‑21k(a).
By
Order of the Freedom of
Information Commission
____________________________
Kenneth E. Grube, Chairman
Dated: ___________________
Ordered:_________________
Debra L.
Rembowski,
Clerk of the Commission