February 13, 2001

Ms. Karen Hipple
Chincoteague Island, VA

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mails of January 22, 2001, and February 5, 2001.

Dear Ms. Hipple:

You have asked whether, under the Virginia Freedom of Information Act (FOIA), a public body must provide access to lists of businesses to whom licenses have been issued or lists of individuals or businesses on a locality's tax rolls. You indicate that you frequently receive requests for a list of businesses licensed in the locality, including addresses and phone numbers of such businesses. You state that you have also received requests for the names, addresses, and phone numbers of those who pay transient occupancy, real estate, personal property, and meals taxes. This information is being requested by various businesses for solicitation purposes.

Subsection A of § 2.1-342 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Subdivision A. 2. of § 2.1-342.01 exempts certain tax information held pursuant to § 58.1-3 from public disclosure. Subsection A of § 58.1-3 prohibits a local tax officer or employee from divulging any information acquired by him in the performance of his duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation. Subsection B of § 58.1-3, however, provides that the section should not be construed to prohibit a local tax official from disclosing whether a person, firm or corporation is licensed to do business in that locality.

The Attorney General has interpreted both of these relevant provisions of § 58.1-3 and found that the prohibition against disclosure of tax information embraced financial information ... which may be reasonably necessary to permit the commissioner of the revenue to make a proper determination of the amount of tax due and owing.[fn1] Information such as names, addresses, and phone numbers from tax records would not appear to fall under this interpretation of the prohibition, because it is not descriptive financial information. In fact, the Attorney General opined that the location or type of business listed on a tax record was not protected by the prohibition because such information is not indicative of the business' finances.[fn2] Similarly, the Attorney General found that subsection B of § 58.1-3, which allows a locality to disclose whether an entity is licensed to do business, also allows dissemination of the type of business licensed, along with its address and telephone number.[fn3]

Therefore, it would appear that FOIA requires that both the business license and tax record information that you have described be open for public inspection and copying. Please note, however, that subsection D of § 2.1-342 states that no public body shall be required to create a new record if the record does not already exist. If the locality does not already have the requested lists then it may, but is not required to, compile such a list from its individual business license and tax records. Once a locality compiles such a list, however, it would be subject to disclosure under FOIA.[fn4]

As a final note, you indicate that there is some concern that certain requestors seek the information you have described for solicitation purposes. Under FOIA, the reason a requestor is asking for public documents is irrelevant. The Virginia Supreme Court held that FOIA does not distinguish between the civic or commercial motives behind FOIA requests.[fn5]

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1981-82 Op. Atty. Gen. Va. 377a.

2. Id.

3. 1982-83 Op. Atty. Gen. Va. 727.

4. 1981-82 Op. Atty. Gen. Va. 377a, 1982-82 Op. Atty. Gen. 727.

5. Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E. 2d 625 (S. Ct. 1988).