FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

William H. Narwold,

Complainant

against Docket #FIC 88-200

P.A. Barbato, Deputy Commissioner, State of Connecticut Department of Revenue Services and State of Connecticut Department of Revenue Services,

Respondents September 28, 1988

The above-captioned matter was heard as a contested case on July 15, 1988, 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:

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

2. The complainant is counsel for D.A. Pincus & Company, Inc. and Frank Henjes & Company, Inc.

3. By letter dated May 13, 1988, the complainant requested copies of the following records:

a. Any taxpayer's protest or appeal concerning the respondent department's decision to disallow deductions for expenses and interest relating to tax exempt income.

b. Any review of or action taken by the respondent department on such appeals or protests.

c. Any internal correspondence or analysis concerning the respondent department's decision to disallow deductions for expenses and interest relating to tax exempt income.

Docket #FIC 88-200 Page 2

4. With respect to the request for the records described in paragraphs 3a and 3b, above, the complainant stated that he sought access to the appeal files of taxpayers who are similarly situated to D.A. Pincus & Company, Inc. and Frank Henjes & Company, Inc.

5. The complainant received no response to his request prior to the scheduled hearing date.

6. By letter of complaint dated June 1, 1988 and filed with the Commission on June 3, 1988, the complainant alleged that he was denied access to public records and requested the imposition of a civil penalty against the respondent department.

7. At the hearing, the respondents provided the complainant with copies of the requested records described in paragraph 3c, above. The complainant also withdrew his request for a civil penalty.

8. The complainant, at the hearing, stated that his request included the appeal files of D.A. Pincus & Company, Inc. & Frank Henjes & Company, Inc., and concerned obtaining access to the respondent department's pending appeal files.

9. The respondents claim that the requested records described in paragraphs 3a and 3b, above, are not maintained in the form requested.

10. The respondents also claim that the requested records described in paragraphs 3a and 3b, above, are exempt from disclosure under 12-15(a) and 1-19(10), G.S.

11. It is found that the respondents' failure to respond in writing to the complainant's request within four business days violated 1-21i(a), G.S.

12. It is found that the respondent department maintains its appeal files alphabetically by taxpayer and by year of final decision. It does not maintain a master file of its appeals by type of tax.

13. It is found that the records described in paragraphs 3a and 3b, above, do not exist in the form requested.

14. It is found that to retrieve the requested records described in paragraphs 3a and 3b, above, the respondents would have to undertake a search not required by the the Freedom of Information Act.

Docket #FIC 88-200 Page 3

15. The Commission notes, however, that pursuant to the decision issued by the Supreme Court in State v. Freedom of Information Commission, 184 Conn. 102 (1981), some of the requested records described in paragraphs 3a and 3b, above, may fall within the purview of public records which are subject to disclosure.

16. Consequently, it is found that pursuant to 1-15 and 1-19(a), G.S., the complainant may be entitled to inspect and copy portions of the respondent department's appeal files.

17. It also is found that to the extent the complainant has requested access to the appeal files of specific taxpayers who are his clients, the respondents can retrieve those records from their appeal files.

18. It is found, however, that the respondent department has made a final determination on the appeal of Frank Henjes & Company. Inc., and the complainant has received a copy of that appeal file. The complainant does not have a copy of the appeal file of D.A. Pincus & Company, Inc., and that appeal is pending.

19. It therefore is found that pursuant to 12-15(a)(5), G.S., the respondents may disclose to the complainant the appeal file of D.A. Pincus & Company, Inc.

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

1. The respondents forthwith shall provide the complainant with a copy of the appeal file of D.A. Pincus & Company, Inc.

2. Henceforth, the respondents shall act in strict compliance with the requirements of 1-21i(a), G.S.

3. Although the respondents are not statutorily obligated to comply with the complainant's request, as stated, they may wish to reconsider their position should it become impractical for them to allow members of the public to inspect portions of their appeal files.

Approved by order of the Freedom of Information Commission at its special meeting of September 28, 1988.

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Catherine H. Lynch

Acting Clerk of the Commission