ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF
INFORMATION ACT-- PRIVACY PROTECTION ACT OF 1976.
TAXATION: GENERAL PROVISIONS OF TITLE 58.1 (SECRECY OF
INFORMATION) -- LOCAL OFFICERS - COMMISSIONERS OF THE REVENUE.
Freedom of Information Act does not require office of commissioner
of revenue to copy personal property book. Records custodian may
place burden for copying records on requester if custodian has no
system or computer database available that is capable of producing
copies. Act expressly grants citizens right to copy official records
required by law to be open for inspection. Because electronic system
for producing copies of book does not exist does not prevent persons
within commissioner's office or requester from making copies of book.
Privacy Protection Act does not prohibit disclosure of personal
information required to be disclosed under Freedom of Information
Act. Only that information required by law to be entered in personal
property book is subject to disclosure; other information relating to
taxpayer's personal property is protected by secrecy requirements,
unless some other authority permits its release.
The Honorable Joyce A. Fuller
Commissioner of the Revenue for Franklin County
June 1, 1999
You ask whether The Virginia Freedom of Information Act,
§§ 2.1-340 through 2.1-346.1 of the Code of Virginia,
requires that you, in addition to making the personal property book
available for inspection, furnish a requester copies of the book if a
data processing program capable of producing such copies is not
presently in operation.
Section 2.1-342(A) requires that, "[e]xcept as otherwise
specifically provided by law," official records must be open for
inspection and copying by any citizen of the Commonwealth during the
regular office hours of the custodian of the records. Prior opinions
of the Attorney General conclude that the personal property book is a
"public assessment book" not encompassed within the secrecy
provisions of § 58.1-3 and is thus subject to disclosure under
If records are subject to disclosure, the custodian is to provide
the requested records to the citizen within five work days from
receipt of the request unless additional time is necessary. 2
Section 2.1-342(A) also permits "reasonable charges for the copying,
search time and computer time expended in the supplying of such
records." 3 Public bodies are
not required, however, to "create or prepare a particular requested
record if it does not already exist" or to "convert an official
record available in one form into another form at the request of the
It is my opinion that, while § 2.1-342 allows your office to
copy the personal property book and charge for the copying and, if
necessary, to extend the five-day time limit for responding to the
request, the section does not require that your office actually make
the copies. Rather, in stating that official records are to be "open
to inspection and copying by any citizens of the Commonwealth,"
5 the statute suggests that the
custodian of the records may place the burden for copying the records
on the citizen making the request if the custodian has no system or
computer database available that is capable of producing the copies.
The Virginia Freedom of Information Act does not, however, permit
you to refuse a request for "copies" of the personal property book on
the grounds that the request would require you "to create or prepare
a particular requested record" 7
that does not already exist. The requested document in this instance
is the personal property book, a record that clearly exists. Section
2.1-342(A) expressly grants citizens not only the right to inspect
official records but also the right to copy the records. That an
electronic system for producing copies of the book does not exist
does not prevent persons within your office or the requester himself
from making copies of the book.8
You ask also whether § 2.1-378(9), a portion of the Privacy
Protection Act of 1976, 9 would
prohibit your providing copies of the personal property book, even if
a program existed to provide the copies. Section 2.1-378(9) states
the General Assembly's finding that there be "a clearly prescribed
procedure to prevent personal information collected for one purpose
from being used for another purpose." You express your concern that
the information contained in the personal property book is collected
for tax purposes and that distribution to the public for other uses
would be inconsistent with this legislative finding.
The Privacy Protection Act requires that agencies maintaining
systems that include personal information shall "[c]ollect,
maintain, use, and disseminate only that personal information
permitted or required by law to be so collected, maintained, used, or
disseminated." 10 Prior
opinions of the Attorney General conclude that the legislature
clearly does not intend the Privacy Protection Act to prohibit the
disclosure of personal information required by law to be disclosed
under The Freedom of Information Act. 11
The distribution of copies of the personal property book thus is not
inconsistent with the legislative finding stated in §
Finally, you ask whether documents in your office containing
information that will ultimately be included in the personal property
book, such as personal property forms, may be released under The
Freedom of Information Act without violating the secrecy provisions
of § 58.1-3. 13 If the
form is a personal property tax return, it is specifically exempt
from disclosure under § 2.1-342(B)(3). As to other personal
property documents that you may have in your possession, it is my
opinion that if the documents contain only
"[m]atters required by law to be entered"
14in the personal property
book, they are not protected by the secrecy requirement of §
58.1-3, notwithstanding the fact that the information has not yet
been transferred to the book.
To the extent, however, that the documents contain information
respecting "the transactions, property, including personal property,
income or business of any person, firm or corporation" 15
that is not required to be entered in the personal property book, the
forms would be protected by the secrecy requirement of § 58.1-3.
Pursuant to § 58.1-3115, the personal property book is to
contain only the name, address and amount of the assessment.
Accordingly, as prior opinions of the Attorney General conclude,
other information relating to the taxpayer's personal property is
subject to the secrecy provisions of § 58.1-3 unless some other
authority would permit its release. 16
1.See Op. Va. Att'y Gen.: 1993
at 221, 223; 1985-1986 at 312; 1973-1974
at 412; 1964-1965 at 282; 1951-1952 at 158. Although §
2.1-342(B)(22) specifically excludes from disclosure the documents
"specified in § 58.1-3," § 58.1-3(A)(1) provides that this
exclusion does not apply to "[m]atters required by law to be
entered on any public assessment roll or book."
2.See § 2.1-342(A) (allowing seven additional
days for requests "practically impossible" to satisfy within five
days (§ 2.1-342(A)(4)), and authorizing court to grant
additional period for extraordinary volume of records).
3.See also § 58.1-3122.1 (permitting
commissioner of revenue to charge no more than 50Ë˜ per page for
photocopying papers or records upon request of taxpayer).
4. Section 2.1-342(A).
5. Section 2.1-342(A) (emphasis added).
6. If a computer database containing the
information exists, it must be made available to the public at a
reasonable cost. See § 2.1-342(A). If you choose to require the
requester to make the copies, you must, of course, have reasonable
facilities available within your office for the requester to copy the
7. Section 2.1-342(A).
8. That you are not required to "convert an
official record available in one form into another form at the
request of the citizen" likewise would not apply to requests for
copies of official records. Section 2.1-342(A). Moreover, even in
instances in which the custodian is under no statutory obligation to
provide records in the form requested, The Virginia Freedom of
Information Act requires that "[t]he public body shall make
reasonable efforts to reach an agreement with the requester
concerning the production of the records requested." Section
9. Sections 2.1-377 to 2.1-386.
10. Section 2.1-380(1) (emphasis added).
11. See Op. Va. Att'y Gen.: 1983-1984
at 314; 1982-1983
at 727, 728; 1978-1979
at 313, 313; 1977-1978
12. You state that you believe the requester
intends to use the information to solicit business from the owners of
personal property. No provision of The Virginia Freedom of
Information Act permits the custodian of the personal property book
to deny access on the basis of a citizen's intended use of the
information in the book.
13. While you do not describe the type of
personal property forms that you may have in your possession, I
assume for purposes of this opinion that the forms would constitute
"official records" open for inspection or copying under §
2.1-342(A), unless otherwise specifically provided by law. Section
2.1-341 defines "official records" as "all written or printed books,
papers, letters, documents, maps and tapes, photographs, films, sound
recordings, reports or other material, regardless of physical form or
characteristics, prepared, owned, or in the possession of a public
body or any employee or officer of a public body in the transaction
of public business."
14. Section 58.1-3(A)(1).
15. Section 58.1-3(A).
16. See Op. Va. Att'y Gen.: 1993,
supra note 1, at 224 (information provided by taxpayers from
which official makes assessment is not subject to disclosure,
notwithstanding that amount of assessment shown on personal property
book); 1991 at 250, 251 (commissioner may not disclose master
property tax files to department of social services); 1985-1986,
supra note 1, at 313 (type of personal property owned by taxpayer is
not required to be recorded in personal property book and thus is
subject to secrecy provisions of § 58.1-3); 1981-1982 at 380,
381 (itemized listing shown on personal property tax return or tax
bill, but not on personal property book, is not to be disclosed); see
also Op. Va. Att'y Gen.: 1991
at 13, 16 (§ 2.1-342 guarantees access to existing
documents, rather than to information contained in documents; section
does not require custodian of documents to extract information from
at 9, 11 (§ 2.1-342 guarantees access only to existing
written documents and other physical records; it does not require
creation of list that does not already exist). While §
2.1-342(A) permits generally the deletion of exempt portions of
requested records otherwise subject to disclosure, no prior opinions
interpret this authority to override the secrecy provisions of §
58.1-3 in connection with personal property information. A real
estate assessment officer may, however, delete information protected
under § 58.1-3 in complying with § 58.1-3331 regarding the
disclosure to a taxpayer of real estate appraisal cards. See
Op. Va. Att'y Gen. 283, 285; see also 1993
Op. Va. Att'y Gen., supra note 1, at 225 (disclosure under §
58.1-3331 may be made only to taxpayer to whose property that