VIRGINIA FREEDOM OF INFORMATION ACT. INTERNAL REVENUE SERVICE FORM 8038 OFFICIAL RECORD SUBJECT TO MANDATORY DISCLOSURE UNDER

July 24, 1984

The Honorable Scott Eubanks
Director, Division of Industrial Development

84-85 425

This is in response to your request for my opinion whether Internal Revenue Service Form 8038, required to be filed with the Division of Industrial Development by §15.1-1377 of the Code of Virginia, is subject to mandatory disclosure under the Virginia Freedom of Information Act, §§2.1-340 throuh 2.1-346.1 (the "Act"). This Opinion is limited to consideration of the applicability of the Act.

Section 15.1-1377 requires that a copy of Internal Revenue Service Form 8038 be furnished to the governing body of the municipality, and that another copy be sent to the Department for Economic Development (presently the Division of Industrial Development).¹

The language of §15.1-1377 is mandatory regarding providing a copy of the form. Form 8038 is entitled an "Information Return for Private Activity Bond Issues," as provided in §103(1) of the Internal Revenue Code.

The Act requires that, except as otherwise specifically provided by law, all official records are to be open to inspection and copying by citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealtn. See §2.1-342(a). The Act excludes only certain records from this mandate. The exclusions in the Act are enumerated in §2.1- 342(b).

Official records for purposes of the Act are "all wrItten or printed books, papers, letters, documents...reports or other material, regardless of physical form or characteristics...in the possession of a public body...in the transaction of publIc business." See §2.1-341(b). Clearly, the form contemplated in §15.1-1377 falls within the definition of an official record. It is material in the possession of a publIc body in the transaction of public business, subject to mandatory disclosure pursuant to the Act, unless otherwise provided by law or unless it falls within one of the exceptions provided by §2.1-342(b).

Section 2.1-342(b)(17) states that financial statements which are not publicly available, filed with applications for industrial development financing are excluded from mandatory disclosure. The Act does not define "financial statements," andtherefore, the term must be given its meaning consistent with common usaga. A financial statement would include a corporation's or individual's assets and liabilities. See In re Dye, 330 F.Supp. 895 (W.D. La. 1971). Such a statement would be any type of report summarizing financial condition or financial results over a period of time or on a certain date. See Black's Law Dictionary 568 (5th ed. 1979). See also State of Oregon v. Wiemals, 62 Or.App. 266, 660 P.2d 702 (1983).

A review of Internal Revenue Service Form 8038 shows that it will not contain the detailed information which would cause it to be classified as a financial statement as described above. Rather, it is an "information return" relating to bond matters. In fact, most of the information is available through other documents which would be contained in the bond transcripts, and those documents would be available to the public. Consequently, the form does not qualify for exemption in §2.1-342(b)(l7).

It is my opinion that none of the exceptions to the Act is applicable to the form about which you inquire. Further, I am not aware of any other law which would protect the form from required disclosure pursuant to the Act. I am, therefore, of the opinion that Internal Revenue Service Form 8038, when filed as part of the industrial approval process, is an official record required to be disclosed in accordance with the terms of the Act.

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Footnotes:

1. The Department of Economic Development, referred to in §15.1-1377, is established effective September 1, 1984, by Ch. 950, Acts of Assembly of 1984. Prior to September 1, 1984, the Division of Industrial Development will perform the functions of the Department of Economic Development, pursuant to §15.1-1377.