FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Michael Jacobs,  
  Complainant  
  against   Docket #FIC 2008-750

Legal Division, State of Connecticut,

Department of Revenue Services; and

State of Connecticut, Department of

Revenue Services,

 
  Respondents October 28, 2009
       

           

The above-captioned matter was heard as a contested case on April 20, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The respondent submitted for in camera inspection the records as described in paragraphs 7 and 16, below.

 

            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 1-200(1), G.S.

 

2.  By letter filed November 28, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his October 24 and November 7, 2008 requests for public records.

 

3.  It is found that the complainant by letter dated October 24, 2008 requested copies of records relating to the application of 12-218(d)(c)-(d) and 12-218b, G.S.

 

4.  It is found that the respondents by letter dated October 30, 2008 denied the complainant’s request on the grounds that the requested information was “return information” as that term is defined under 12-15(h)(2), G.S., which information the respondents are specifically prohibited from releasing.

 

5.  It is found that the complainant by letter dated November 7, 2008 requested that the respondents provide him with an index of the documents that the Department of Revenue Services (“DRS”) possessed that were responsive to the October 24, 2008 request.  Such index was requested to include the nature of the document, a short description of the document, and the specific basis for withholding the document.

 

            6.  It is found that the respondents by letter dated November 17, 2008 denied the complainant’s November 7, 2008 request on the grounds that they were under no obligation under the FOI Act to prepare such a document.

 

            7.  On May 18, 2009, the respondents submitted to the Commission for an in camera inspection all of the records responsive to the complainant’s request.  The requested records consist of petitions filed under 12-218(d)(c)-(d) and 12-218b, G.S., responses to those petitions, and related correspondence and notes. The records submitted were accompanied by an index describing the nature of the documents, a short description of the documents, and the specific basis for withholding the document.

 

8.  Section 1-200(5), G.S., provides:

 

   “Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

9.  Section 1-210(a), G.S., provides in relevant 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

10.  It is concluded that the requested records are public records within the meaning of 1-200(5) and 1-210(a), G.S.

 

11.  It is concluded that nothing in the FOI Act required the respondents to prepare the index described in paragraph 5 for the complainant at his request.  It is therefore concluded that the respondents did not violate the FOI Act by declining to do so.

 

12.  The respondents contend that the requested records all consist of return information as defined in 12-15, G.S., and that the Department is not required to redact identifying or financial data from a document that contains return information, citing Church of Scientology of California v. IRS, 484 U.S. 9 (1987) and Peruta v. Commissioner of Revenue Services, Docket #FIC 2004-163.

 

13.  The complainant contends, with some persuasiveness, that the petitions and responses are essentially “advisory opinions” on the applicability of DRS statutes, that such petitions and responses are available under federal law, and that the information contained in the requested records is necessary for him to prepare his own petition under the relevant tax statutes.

 

14.  Section 12-15(a), G.S., prohibits the disclosure of “return information.”

 

15.  Section 12-15(h)(2), G.S., defines “return information” to mean:

 

… 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, or any other data received by, recorded by, prepared by, furnished to, or collected by the commissioner 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. "Return information" does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. Nothing in the preceding sentence, or 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.

 

16.  In Peruta v. Commissioner of Revenue Services, the Commission concluded that reports of audits containing return information may not be disclosed even if all taxpayer identification is removed, citing Church of Scientology v. IRS, 484 U.S. 9 (1987) (holding that the language “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer” was only intended to permit the continuation of the Internal Revenue Service’s practice of releasing statistical studies and compilations that do not identify particular taxpayers).

 

17.  On his own motion, the hearing officer reviewed the requested records in camera to determine whether they contained information about the application of the tax code without associated return information.

 

18.  It is found that the requested records do not contain information about the application of the tax code without associated return information.  In fact, the requested records consist almost entirely of information about taxpayers that formed the basis for DRS’s decision to grant or deny the taxpayers’ petitions.

 

19.  It is found that the requested records consist almost entirely of information from and about the petitioning taxpayers in support of their petitions for tax relief under 12-218(d)(c)-(d) and 12-218b, G.S.  Although this information, and the reasons DRS granted or denied the petitions based on the information provided by the taxpayers, would undoubtedly be helpful to the complainant in preparing his client’s petition, it is also clearly “return information” within the meaning of 12-15(h)(2), G.S.

 

20.  It is concluded that the requested records are comprised of “return information” within the meaning of 12-15(h)(2), G.S., and that the respondents did not violate 1-210(a), G.S., by failing to disclose them.

 

 

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

 

            1.  The complaint is dismissed.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 28, 2009.

 

 

____________________________

S. Wilson

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:

 

 

Michael Jacobs

Reed Smith LLP

2500 One Liberty Place

Philadelphia, PA 19103

 

Legal Division, State of Connecticut,

Department of Revenue Services; and

State of Connecticut, Department of

Revenue Services

C/o Heather J. Wilson, Esq.

Assistant Attorney General

55 Elm Street

P.O. Box 120

Hartford, CT 06141

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-750FD/sw/11/2/2009