FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Charles Lenore, | |||
| Complainant | |||
| against | Docket #FIC 2005-441 | ||
|
Commissioner, State of Connecticut, Department of Revenue Services, |
|||
| Respondent | August 23, 2006 | ||
The above-captioned matter was heard as a contested case on November 21, 2005, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. The respondent submitted for in camera inspection 69 pages of records as described in paragraphs 6, 14 and 30, below.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter filed September 13, 2005 the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying the complainant’s July 29, 2005 request for public records.
3. It is found that the complainant by letter dated July 29, 2005 requested copies of records relating to the application of Section 338(h)(1) of the Internal Revenue Code of 1986, as amended, to certain Connecticut taxes.
4. It is found that the respondent by letter dated August 15, 2005 replied that the Department of Revenue Services (the “Department”) had identified 231 pages of documents that fell within the scope of the July 29, 2005 request, excluding records that were asserted to be subject to the attorney-client privilege, the attorney work-product privilege, and §§1-210(b)(10) and 12-15, G.S.
5. It is found that the complainant by letter dated August 18, 2005 requested that the respondent identify the number of pages of records, for each category of claimed exemption, that were excluded by the respondent.
6. It is found that the respondent by letter dated August 18, 2005 replied that the Department had identified approximately 80 pages of records that fell within the scope of the asserted exemptions.
7. It is found that the respondent on September 6, 2005, provided to the complainant the 231 pages of documents not in dispute, as described in paragraph 4, above, but not the 80 pages the Department claimed were exempt from disclosure.
8. It is found that the complainant by letter dated September 8, 2005 requested that the respondent provide an index of the 80 disputed records indicating the type of document, the author, the recipient, the date, the general subject matter, and the specific basis for which an exemption was claimed.
9. It is found that the respondent provided the complainant neither the disputed documents nor the requested index. At the hearing, however, the respondent submitted a catalog of items that were claimed to be exempt from disclosure.
10. 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.
11. 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.
12. It is concluded that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.
13. At the hearing, the complainant withdrew his request for records that the respondent identified as privileged by the attorney-client relationship, and as attorney work product.
14. The respondent maintains that the six records identified as drafts, pages 46 through 69 of the in camera records, are exempt from disclosure under §1-210(b)(1), G.S., which provides that disclosure is not required of:
Preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure ….
15. Section 1-210(e)(1), G.S., provides:
Notwithstanding the provisions of subdivisions (1) and (16) of subsection (b) of this section, disclosure shall be required of:
(1) Interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency.
16. It is found that, with the exception of pages 48 through 51 of the in camera records, those records are drafts, as evidenced by the hand-written comments and corrections on those documents.
17. It is found that the respondent determined in good faith that the need to protect the thought processes and discussions among the Department’s attorneys in the process of generating and revising draft documents clearly outweighed the public interest in disclosure.
18. The complainant contends that the respondent failed to meet his burden of proof, citing Wilson v. FOIC, 181 Conn. 324 (1980) for the proposition that the respondent’s reasons for his determination to withhold the records must not be frivolous or patently unfounded.
19. While the Commission does not find the respondent’s reasons to withhold the records objectively persuasive, it is unable to conclude that his reasons are frivolous or patently unfounded.
20. It is concluded that pages 46, 47, and 52 through 69 of the in camera records are permissibly exempt from disclosure pursuant to §1-210(b)(1), G.S.
21. Pages 48 through 51 of the in camera records comprise a memorandum to the respondent Commissioner from Corporation Business Tax Team Legal Division (the “Memorandum”).
22. The respondent argues in his brief that the Memorandum is a preliminary draft of a Department publication.
23. However, the respondent did not put into evidence the Department publication of which he claims the Memorandum is a draft, and the Memorandum on its face does not appear to be a preliminary draft of a publication, and indeed appears to be final in all respects. The only evidence that the Memorandum is a draft is the word “draft” stamped on it.
24. It is found that the respondent failed to prove that the Memorandum is a preliminary draft of a Department publication.
25. It is also found that the Memorandum is a recommendation to the respondent Commissioner concerning the treatment of I.R.C. §338(h)(10). As such, it is a recommendation comprising part of the process by which the Department’s decisions and policies are formulated, within the meaning of §1-210(e)(1), G.S.
26. It is concluded that the Memorandum must be disclosed pursuant to §1-210(e)(1), G.S.
27. It is therefore concluded that the respondent violated §§1-210(a) and 1-210(e)(1), G.S., by failing to disclose the Memorandum to the complainant.
28. The respondent contends that the remaining in camera records all contain return information as defined in §12-15, G.S., and that the Department is not required to redact 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.
29. The complainant contends in turn that redaction of information that would identify taxpayers would result in records that are not exempt “return information.”
30. Section 12-15(a), G.S., prohibits the disclosure of “return information.”
31. 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.
32. 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).
33. It is found that the remaining in camera records consist of correspondence between taxpayers and the respondent.
34. It is found that the correspondence between taxpayers and the respondent contains: taxpayers’ identities; information indicating whether taxpayers’ returns were or would be examined or subjected to other investigation or processing; the nature and source of taxpayers’ incomes; and other data furnished to the respondent with respect to tax returns.
35. It is concluded that the correspondence between taxpayers and the respondent contains “return information” within the meaning of §12-15(h)(2), G.S., and that the respondent is not permitted to disclose such correspondence, even with the redaction of identifying information.
36. It is concluded that the respondent did not violate §1-210(a), G.S., by failing to disclose the requested correspondence.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The respondent shall forthwith provide the complainant the record described in paragraph 21 of the findings, above.
2. The remaining allegations in the complaint are dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 23, 2006.
________________________________
Petrea A. Jones
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:
Commissioner, State of Connecticut,
Department of Revenue Services
c/o Paul M. Scimonelli, Esq.
Assistant Attorney General
55 Elm Street
PO Box 120
Hartford, CT 06141-0120
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2005-441FD/paj/8/28/2006