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FREEDOM OF INFORMATION COMMISSION |
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In the Matter of a Request for Declaratory Ruling |
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Declaratory Ruling #91 |
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Commissioner of Consumer Protection, Petitioner |
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On February 9, 2000, the Commission considered and
agreed to respond to a petition for a declaratory ruling filed by the
Commissioner of Consumer Protection.
In
his petition dated January 21, 2000, the petitioner presents the following
facts:
"Under
the Connecticut Solicitation of Charitable Funds Act, Conn. Gen. Stat. §21a-175
et. seq., Charitable organizations that solicit funds in Connecticut must register with the Public Charities
Unit of the Department of Consumer
Protection (hereinafter, the Department). Each registered charity must file an
annual financial report the principal component of which is a copy of the
organization's Return of Organization Exempt from Income Tax - IRS form 990.
The form 990, as filed with the IRS may include a Schedule of Contributors,
i.e., a list of all persons who contributed money, securities or other property
worth $5000 or more during the year.
"The
Schedule of Contributors is, by IRS regulations, confidential and not open to
public inspection. Because the Department's charity files are open to the public, we clearly admonish filers not to
include the Schedule of Contributors in their submissions to this office and
inform them that if they do include the Schedule it will become a public
record.... Notwithstanding our admonitions, many charities do, inadvertently
we presume, include the Schedule of Contributors in their financial reports
filed here."
The petitioner seeks the Commission's ruling as to whether, pursuant to
Conn. Gen. Stat. §1-210, the
Department must disclose to the public schedules of contributors when that information is inadvertently submitted
by the charitable organization.
Declaratory Ruling #92 Page
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The petitioner points out certain provisions of the
Internal Revenue Code (26 USC §6104(b)) and federal regulations (CFR §
301.6104(b)-1) that prohibit public inspection
of the schedules. The Department, however, believes that the prohibitions in the Internal Revenue Code and regulations on
public inspection of those documents are
directed
only to the Internal Revenue Service itself and to those other government
agencies that may require the filing of the schedule of contributors. The
Commission agrees.
Conn.
Gen. Stat. §1-210(a) provides in pertinent part:
"Except
as otherwise provided by any federal law or state statute, all records
maintained or kept on file by any public agency, whether or not such records
are required by any law or by any rule or regulation, shall be public records
and every person shall have the right to inspect such records promptly during
regular office or business hours or to receive a copy of such records in
accordance with the provisions of section 1-212."
Since
the Commission is unaware of any state statute that provides for the confidentiality
of the subject schedule of contributors, the question becomes whether federal law provides for the confidentiality of
these records when filed with the Department under the circumstances described
by the petitioner.
The Internal Revenue Code, 26
USC §6104(b), provides that "[n]othing in this subsection shall authorize
the ... [Internal Revenue Service] to disclose the name or address of
any contributor to any organization or trust...which is required to furnish
such information [to the Internal Revenue
Service]."
The
plain language of this statute indicates that the Internal Revenue Service is prohibited
from authorizing the disclosure of information relative to contributors to any other agency, entity or individual. It does not
govern situations where exempt organizations themselves provide the
Department with the names and addresses of their contributors.
Section
301.6104(b)-1(a)-(b) of the Code of Federal Regulations states that the
"name and addresses of contributors...shall not be made available for
public inspection under [26 USC] §6104(b)," and that the name and address
of contributors "shall not be part of the public record." The
Code of Federal Regulations also prohibits the disclosure of the amounts of contributions and
bequests to an organization if the "disclosure of such information can reasonably be expected to identify
any contributor." Id. at §301.601(b)-l(b)(2).
When, however, the above
cited subsections, 26 CFR §301.6104(b)-l(a)-(b), are read in context with the
succeeding subsections of the regulation, 26 CFR §301.6104(b)-l(c)-(d), it
becomes apparent that the mandatory language in the regulation is directed
solely to the Internal Revenue Service. Subsection (c) provides:
Declaratory Ruling #92 Page
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"Place
of inspection. Information furnished on the public portion of returns (as
described in paragraph (a) of this section) shall be made available for public
inspection at the Freedom of Information Reading Room, Internal Revenue Service, 111 Constitution Avenue, Washington, DC 20224...."
Further,
subsection (d) provides:
"Procedure for public inspection.... Requests
for public inspection must be in
writing to or at any of the offices mentioned in paragraph (c) of this section...."
Thus,
26 CFR §301.6104(b)-1 is clearly a procedural regulation governing the operations of the Internal Revenue Service and
cannot be read as imposing any prohibition or duty upon the Department.
In
addition, the law in Connecticut is that confidentiality provisions applicable
to one agency are not transferable to
another agency in the absence of specific legislation. See Department of Transportation v. Freedom of Information
Commission, Super Ct, JD Hartford,
CV 98-0576720 (December 15, 1998, Hartmere, J.); Conn. Alcohol and Drug Abuse Commission v. Freedom
of Information Commission, Super
Ct, JD Hartford/New Britain, CV 94 704063 (March 10, 1994, Maloney, J.). See also
Steadwell v. Warden, 186 Conn. 153, 162-63 (1982).
Therefore, in response to the
petition in these proceedings, the Commission issues the following ruling:
Pursuant to Conn. Gen. Stat. §1-210, the Department
must disclose to the public the schedules of contributors, as described above,
when that information is inadvertently
submitted to the Department by a charitable organization.
By Order of the
Freedom of Information Commission
____________________________
Frederick E. Hennick, Chairman
Dated: ___________________
Ordered:_________________
Dolores
E. Tarnowski,
Clerk