Advisory Opinion #82

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT

In the Matter of a Request for Advisory Opinion
	Advisory Opinion #82
Under Secretary, Intergovernmental Policy Division, Office of Policy Management, Applicant

On May 22, 1991, the Commission considered and agreed to respond to a request for an advisory opinion filed by the Under Secretary, Intergovernmental Policy Division, office of Policy and Management.

In his request, the applicant notes that effective October 1, 1991, Conn. Gen. Stat. §12-81(72) will establish a tax exemption for both owners and lessees (but not lessors) of certain new manufacturing machinery and equipment. Conn. Gen. Stat. §12-94c establishes the method by which such personal property is to be valued for assessment purposes and local assessors will be required to apply a fixed depreciation schedule to the cost of acquisition of any such property.

Currently, pursuant to Conn. Gen. Stat. §12-40, owners of personal property are required to file annually a list of such property with the applicable municipal assessor. Under Conn. Gen. Stat. §12-41(g), the form of this annual list (Form M-15) is prescribed by the Secretary of the Office of Policy and Management ("OPM"). Heretofore, cost of acquisition data have not been required to be included on Form M-15.

According to the applicant, OPM will be issuing guidelines providing that the cost of acquisition of property eligible for the new §12-81(72) tax exemption will be the purchase price of the property plus any related transportation and installation costs. OPM will also be prescribing a new form (Form M-65) for manufacturers (owners and lessees) wishing to claim this tax exemption. The form will require specific cost of acquisition data for all machinery or equipment claimed to be exempt from taxation. Because, however, a lessor of machinery or equipment cannot apply for the new tax exemption, all necessary cost of acquisition data for leased property cannot be obtained from either the contemplated Form M-65 or the current Form M-15.

The applicant believes that without such cost of acquisition data, local assessors will be unable to comply with the provisions of Conn. Gen. Stat. §12‑94c when determining the assessment value of leased machinery or equipment. Consequently, OPM intends to require that purchase price data also be included on Form M‑15 for all machinery and equipment acquired on or after October 2, 1990. In addition, to enable local assessors to identify any such property leased to a manufacturer, the owners of such machinery and equipment will be required to submit an attachment to Form M‑15 which will include the lease identification number, a description of the leased property, the name and address of the lessee and the date the lease term begins

In essence, the applicant seeks the Commission's opinion as to whether the cost of acquisition data (i.e., purchase price plus transportation and installation costs) that OPM will require to be included in or with Forms M‑15 and M‑65 will be exempt from public disclosure under the Freedom of Information Act.

In its Advisory Opinion #69, the Commission addressed an issue similar to that presented here. In that opinion, the Commission analyzed the exemption to disclosure of public records in Conn. Gen. Stat. §1-19(b)(5) for "commercial or financial information given in confidence, not required by statute." The Commission's analysis was then directed to the contents of a form that certain municipal assessors used to obtain additional information from taxpayers concerning their personal property declarations required under Conn. Gen. Stat. §12-42.

The Commission believes its analysis in Advisory Opinion #69 offers the proper basis for answering the applicant's inquiry here. In particular, the Commission reiterates what it wrote in that opinion with respect to the applicability of the §1‑19(b)(5) commercial or financial information exemption: for the exemption to apply, all three of the statutory requirements must be met. That is, the Commission must determine whether the subject information (1) constitutes "commercial or financial information;" (2) is "given in confidence;" and (3) is "not required by statute." Advisory Opinion #69 at p. 4. Only information "not required by statute" falls within the ambit of this exemption to disclosure. Id.

It is the Commission's opinion that the cost of acquisition data that are the subject of the applicant's inquiry constitute "commercial or financial information" within the meaning of Conn. Gen. Stat. §1-19(b)(5) and therefore the first component of that exemption is met.

As in Advisory opinion #69, the Commission believes that two factors must be present before it can determine whether the information is "given in confidence" within the meaning of the exemption. First, the person submitting the information must request confidentiality. This factor could be determined simply by providing a check‑off box on Forms M‑15 and M‑65 indicating whether confidentiality is sought for the cost of acquisition data supplied. Second, the information must not be available to the public from other sources. Advisory Opinion #69 at p. 4.

In the context of these proceedings, the Commission is unable to determine whether any particular cost of acquisition data are available to the public from other sources. Consequently, the agency or agencies receiving the completed Forms M‑15 and M‑65 must make an independent evaluation of the confidential nature of such data. Id. It is the Commission's opinion, however, that such data would be "given in confidence" within the meaning of Conn. Gen. Stat. §1‑19(b)(5) if the person submitting the cost of acquisition data requests confidentiality and if those data are not available to the public from other sources. In those circumstances then, the second component of the exemption would be met.

The Commission notes that the operative facts in Advisory opinion #69 vary somewhat from those presented here with respect to whether the information is "not required by statute." In the earlier advisory opinion, some local assessors used so‑called "Confidential Reports" without the express approval of OPM, the agency mandated by Conn. Gen. Stat. §12-41(g) to provide the form for the list which the "Confidential Reports" were designed to supplement. Id. at p. 5. Moreover, §12‑41(g) does not require assessors to use the "Confidential Reports." Id. For these reasons, and because there was no other law requiring that taxpayers supply the subject information, the Commission concluded that the "not required by statute" component of the §1‑19(b)(5) exemption was met., Id.

Here, however, according to the applicant, OPM itself will be requiring that cost of acquisition data be supplied on, or along with, the forms it soon will be prescribing. Its authority for doing so is Conn. Gen. Stat. §§12‑41(g) and 12‑81(72). Thus, it is in this context that the Commission must determine whether the cost of acquisition data are "not required by statute."

Section 12‑41(g) states:

The secretary of the office of policy and management shall provide a form of list to be used by property owners in each municipality for the purpose of listing property which is not excepted by the provisions hereof.

Section 12‑81(72) provides in pertinent part:

The provisions of subsection (c) of section 12‑41 to the contrary notwithstanding, any person who desires to claim the exemption provided in this subdivision shall file annually with the assessor or board of assessors in the municipality in which the machinery or equipment is located . . . a list of such machinery or equipment together with written application claiming such exemption on a form prescribed by the secretary of the office of policy and management. In such substantiation of such claim, the claimant shall present to the assessor or board of assessors such supporting documentation as said secretary may require, including, but not limited to, invoices, bills of sale and bills of lading.

It is the Commission's opinion that these statutes do not require the submission of the cost of acquisition data at issue. Rather, they merely authorize the Secretary of OPM to prescribe forms, or mandate documentation, that may require such data. See Advisory Opinion #69 at p. 5. Furthermore, the Commission is unaware of any other law that requires the submission of such data to local assessors or OPM. Consequently, it is the Commission's opinion that the cost of acquisition data, when supplied to assessors or OPM, is "not required by statute" within the meaning of §1-19(b)(5). Thus, the third component of the exemption is met.

Based on the foregoing facts and analysis, it is the Commission's opinion that the subject cost of acquisition data that OPM will require to be included in or with Forms M‑15 and M‑65 will be exempt from mandatory public disclosure when "given in confidence," within the meaning of Conn. Gen. Stat. §1‑19(b)(5) as explained herein. As in Advisory Opinion #69, whether particular cost of acquisition data are "given in confidence" must be left to a case by case determination based on the specific facts presented.

By Order of the Freedom of
Information Commission

________________________
Kenneth E. Grube, Chairman

Dated: ___________________

Ordered:_________________

Karen J. Haggett, Clerk