TAXATION: GENERAL (SECRECY OF INFORMATION).

ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Tax payment transaction, or its absence, not protected from public disclosure. Local tax official may reveal identity of taxpayer currently or previously delinquent in paying locality's business license tax, but not amount of taxpayer's delinquency.

June 9, 1993

The Honorable V. Thomas Forehand Jr.
Member, House of Delegates

1993 217

You ask whether §58.1-3 of the Code of Virginia prohibits a local tax official from disclosing the fact that a taxpayer currently is delinquent in the payment of the locality's business license tax. You also ask several other questions, all of which relate to whether §58.1-3 prohibits the disclosure of information revealing that a taxpayer previously was delinquent in the payment of such a tax, once the tax has been paid in full and the delinquency no longer exists.

I. Applicable Statutes

The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the FOIA), establishes a general rule that all records of public bodies are open to inspection and copying by citizens of the Commonwealth, [e]xcept as otherwise specifically provided by law. Section 2.1-342(A). The FOIA contains a strong policy statement in favor of public access to government records, providing that [a]ny exception or exemption from applicability shall be narrowly construed in order that no thing which should be public may be hidden from any person. Ch. 538, 1990 Va. Acts (Reg. Sess.) 784, 785 (enacting §2.1-340.1, not set out in Code).

Section 58.1-3 provides, in part:

A. Except in accordance with proper judicial order or as otherwise provided by law, the Tax Commissioner or agent, clerk, commissioner of the revenue, treasurer, or any other state or local tax or revenue officer or employee, or any former officer or employee or any of the aforementioned offices shall not divulge 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. Such prohibition specifically includes any copy of a federal return or federal return information required by Virginia law to be attached to or included in the Virginia return. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor. The provisions of this subsection shall not be applicable, however, to:

1. Matters required by law to be entered on any public assessment roll or book;
2. Acts performed or words spoken or published in the line of duty under the law;
3. Inquiries and investigations to obtain information as to the process of real estate assessments by a duly constituted committee of the General Assembly, or when such inquiry or investigation is relevant to its study provided that any such information obtained shall be privileged;
4. The sales price, date of construction, physical dimensions or characteristics of real property, or to any information required for building permits.
B. Nothing contained in this section shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof or the publication of delinquent lists showing the names of taxpayers who failed to timely pay their taxes, together with any relevant information which in the opinion of the Department [of Taxation] may assist in the collection of such delinquent taxes. This section shall 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.

II. Disclosure of Identity of Currently Delinquent Taxpayer Permitted

Although §2.1-342 of the FOIA generally requires disclosure of public records on request, that requirement is overridden by specific statutes restricting or limiting such disclosure because 2.1-342(A) expressly directs disclosure [e]xcept as otherwise specifically provided by law. Accordingly, information whose disclosure is prohibited by §58.1-3 is not required to be made available to citizens under the FOIA. See Att'y Gen. Ann. Rep.: 1992 at 157, 159; 1982-1983 at 727 (applying former §58-46, now recodified as §58.1-3).

The Supreme Court of Virginia, however, has recognized that the FOIA establishes a strong public policy in favor of open government, and that exceptions to that policy must be construed narrowly. See City of Danville v. Laird, 223 Va. 271 , 276, 288 S.E.2d 429, 431 (1982). A tax official may not rely on 58.1-3 to avoid compliance with a citizen request under the FOIA if the information contained in the requested records is outside the scope of the prohibition in 58.1-3. See Associated Tax Service v. Fitzpatrick, 236 Va. 181, 188-89, 372 S.E.2d 625, 629-30 (1988) (ordering city treasurer to provide master computer file of real estate tax assessment and payment information).

Several prior opinions of this Office address the disclosure of information about delinquent taxes under §58.1-3. The most recent of these opinions distinguishes between disclosure of the amount of a business license tax delinquency, which the opinion concludes is prohibited because it indirectly reveals the gross receipts of the business, and disclosure of the identity of the delinquent taxpayer, which the opinion concludes is allowed under §58.1-3(B). 1992 Att'y Gen. Ann. Rep., supra, at 159-60. That opinion acknowledges that there is no statutory requirement for preparation of a list of delinquent business license taxes comparable to that required for property taxes, but further concludes that, if a list of business license delinquents does exist, it must be disclosed in response to an FOIA request. Id.; accord 1984-1985 Att'y Gen. Ann. Rep. 313, 314 n.4.

An earlier opinion concludes that a local treasurer is not prohibited from disclosing to individual lessors of coal lands the names of their coal operator-lessees who are delinquent in payment of coal severance taxes. That opinion applies the exception permitting publication of delinquent lists in what is now §58.1-3, despite the clear indication from the facts described in the opinion that the local commissioner of the revenue intended to disclose individual names, rather than pre-existing lists. 1981-1982 Att'y Gen. Ann. Rep. 379.

Based on the above, it is my opinion that §58.1-3 does not prohibit a local tax official from revealing the identity of a taxpayer who is currently delinquent in the payment of the locality's business license tax as long as the amount of the delinquency is not disclosed.

III. Local Tax Official May Disclose Information Revealing Taxpayer's Past Delinquency

The prior opinions of the Attorney General discussed above do not address specifically whether the disclosure of the names of delinquent taxpayers allowed under §58.1-3 is limited only to those currently delinquent at the time the disclosure occurs. The statutory language does not dictate that conclusion. It expressly authorizes the publication of delinquent lists, which logically would reflect those delinquent as of a particular date, but does not restrict a tax official who retains a copy of such a list from granting a citizen access to that list pursuant to an FOIA request, despite the obvious possibility that some of the taxpayers listed will have paid their delinquencies since the list was prepared.¹

In Associated Tax Service v. Fitzpatrick, the Supreme Court of Virginia ordered a city treasurer, in response to an FOIA request, to furnish a computer disk of the city's entire master real property tax file. Significantly, the information in that file included, for each named taxpayer and parcel, dates of payments of quarterly taxes. 236 Va. at 183; 372 S.E.2d at 627. Such a file clearly would include both payments made on time and those made after the due date, so the Court apparently did not deem disclosure of the latter to be a violation of 58.1-3.

The general prohibition in §58.1-3(A) applies to disclosure of information about the transactions, property income or business of a taxpayer. Disclosure of the fact that a taxpayer previously has been delinquent in payment of a tax reveals nothing about that taxpayer's property, income or business. The only transaction about which such a disclosure reveals anything is the tax payment transaction itself. Section 58.1-3(B) makes it clear that the tax payment transaction itself (or the absence of payment) is not protected from public disclosure.

Based on the above, it is my opinion that §58.1-3 allows a local tax official to disclose not only the name of a taxpayer currently delinquent in payment of business license taxes, but also information revealing the fact that a taxpayer has been delinquent in paying such taxes on past occasions but not the amount owed.

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Footnotes:

1. Delinquent property tax lists, for example, must be prepared by August 1 annually, but shall conform to the facts as they existed on June 30. Section 58.1-3922; see §58.1- 3921. This obviously means that a taxpayer who has paid his delinquent taxes during July nevertheless may appear on the published list as having been delinquent on June 30.