FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Ethan Book, Jr.,

 

 

Complainants

 

 

against

 

Docket #FIC 1997-166

Legal Division, State of Connecticut, Department of Revenue Services; and State of Connecticut, Department of Revenue Services,

 

 

Respondents

February 8, 1998

        The above-captioned matter was heard as a contested case on September 30, 1997, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

        After consideration of the entire record, the following facts are found and conclusions of law are reached:

        1. The respondents are public agencies within the meaning of 1-18a(1), G.S. (prior to October 1, 1997, 1-18a(a), G.S.).

        2. By letter dated May 3, 1997, the complainant requested that the respondents provide him with information which would advise him of who initiated the decision to seek a business sales tax audit of the complainant in late 1995.

        3. By letter dated May 7, 1997, the respondents denied the complainant’s request, citing 12-15, G. S.

        4. By letter dated May 9, 1997, the complainant renewed his request described in paragraph 2, above.

        5. By letter dated May 15, 1997, the respondents informed the complainant that the respondent department’s audit division has statutory authority to select, direct, and conduct audits.

        6. By letter dated May 19, 1997, the complainant renewed and expanded his request to include information as to who, how and why his business was selected for a sales tax audit.

        7. By letter dated and filed with the Commission on May 30, 1997, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by denying him access to the requested information.

        8. At the hearing on this matter, the respondents moved for a more specific statement of the records sought by the complainant.

        9. The respondents’ motion described in paragraph 8, above, is hereby denied as it is found that the complainant’s requests are sufficiently clear.

        10. It is found that, to the extent records exist which contain the requested information, such records are public records within the meaning of 1-18a(5), G.S. (prior to October 1, 1997, 1-18a(d), G.S.) and 1-19(a), G.S.

        11. Section 1-19(a), G.S., provides in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained…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…hours….

        12. The respondents contend that 12-15(e)(2), G.S., provides a basis to withhold any records responsive to the complainant’s request.

        13. Section 12-15(e)(2), G.S., in relevant part provides:

[n]othing…in any other provision of law, shall be construed to require the disclosure of standards used or to be used for the selection of returns for examination, or data used or to be used for determining such standards or the disclosure of the identity of a confidential informant, whether or not a civil or criminal tax investigation has been undertaken or completed.

        14. It is concluded that 12-15(e)(2), G.S., provides a basis to withhold records relating to the standards used for audit selection but does not provide a basis to withhold a record of the identity of the state employee who made the decision to audit the complainant’s business, if such record exists.

        15. At the hearing and in a brief, counsel for the respondents argued that it is impossible to identify the state employee responsible for making the decision to audit the complainant’s business. However, the respondents failed to prove such fact and failed to prove that no such record containing such information exists.

        16. It is therefore concluded that the respondents violated 1-19(a), G.S.

        17. On October 7, 1997, the complainant moved for a new hearing and asked the Commission to subpoena three specific employees of the respondent department who were not present at the hearing so that he could elicit answers to his questions as to how and by whom his business was selected for an audit. The respondents objected to the complainant’s motion and the complainant filed a reply to the respondent’s objection.

        18. Section 1-21j-7(b)(4) of the Regulations of Connecticut State Agencies, provides that subpoenas for witnesses may be issued at the discretion of the hearing officer in order to compel attendance or the production of evidence for examination. It is found that the complainant has not shown that attendance of the three employees referenced in paragraph 17, above, will likely result in the production of necessary evidence. Moreover, the FOI Act requires that public agencies provide access to non-exempt public records; however, it does not require that agencies answer questions or create records in response to requests. Accordingly, the complainant’s motion for a new hearing is hereby denied.

        The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

        1. The respondents shall forthwith provide the complainant with access to that portion of the requested record which identifies the state employee responsible for the decision to audit the complainant’s business.

        2. If compliance with the order in paragraph 1, above, is impossible due to the fact that no record exists which identifies such employee, the respondents shall provide the complainant with an affidavit, detailing the record search and examination conducted which resulted in the conclusion that no such record exists.

        Approved by Order of the Freedom of Information Commission at its regular meeting of February 18, 1998.

_________________________
Doris V. Luetjen
Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:
Ethan Book
P.O. Box 1385
Fairfield, CT 06430

Legal Division, State of Connecticut, Department of Revenue Services; and State of Connecticut, Department of Revenue Services
c/o Robert Klein
Assistant Attorney General
110 Sherman Street
Hartford, CT 06105

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-166/FD/tcg/02181998