Untitled California Attorney General Opinion ( 1999 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 99-301
:
of : August 6, 1999
:
BILL LOCKYER :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
THE HONORABLE H. PETER KLEIN, COUNTY COUNSEL OF MENDOCINO
COUNTY, has requested an opinion on the following question:
Is a county auditor-controller prohibited from disclosing to the public information regarding
the amount of money deducted from an elected county officer’s salary to satisfy a state or federal tax lien?
CONCLUSION
A county auditor-controller is generally prohibited from disclosing to the public information
regarding the amount of money deducted from an elected county officer’s salary to satisfy a state or federal
tax lien, but special circumstances may allow for such disclosure in a particular case.
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ANALYSIS
We are advised that a district attorney, who was elected to office in 1998, disputes the
amount of his federal and state income tax liabilities for the years 1977 through 1991. In 1991-1992, he
spent nine months in a federal prison, having been convicted for failing to file federal tax returns, a
misdemeanor. Both federal and state tax liens have been filed against his property. His tax disputes have
been widely reported throughout the county, both before and after his election. Most recently it was
reported in the local newspapers that the district attorney has “filed for bankruptcy protection from paying
back taxes and penalties that the IRS contends total more than $3.4 million.”
Some members of the public and the press wish to know the precise amount of money, if
any, that is being deducted from the district attorney’s salary to satisfy the state and federal tax liens. Other
members of the public believe that such information does not relate to the district attorney’s current official
duties but instead relates to his past, private tax matters that should not be disclosed to the general public
or press.
The question presented for resolution is whether the county auditor-controller is prohibited
from disclosing the amount of the salary deductions, if any, that are being made to satisfy the federal and
state tax liens. We conclude generally that such information is not disclosable but in the unique
circumstances involved here, disclosure would not be prohibited.
Preliminarily, we note that Code of Civil Procedure sections 706.070-706.0841 govern
the withholding of money from an employee’s salary for payment of a tax liability owed to the state. When
the state serves a “withholding order for taxes” upon the taxpayer’s employer (Code Civ. Proc.,
§§ 706.072, 706.074), the employer is required to pay over the amounts withheld (Code Civ. Proc.,
§ 706.077, subd. (a)). The employer is also required to file an “employer’s return” containing the
information specified in Code of Civil Procedure section 706.126.
Federal tax law utilizes similar procedures. Failure to pay taxes results in the imposition
of a lien. (26 U.S.C. § 6321.) The federal government may levy upon a taxpayer’s accrued wages to
satisfy the lien. (26 U.S.C. § 6331.) The salary of an employee of a state or local government may be
levied upon by issuing an order to the government officer responsible for making the wage payments. (Sims
v. United States (1959) 359 U.S. 108 [3 L. Ed. 2d 667, 79 S. Ct. 641.)
Here, we are concerned with the right of privacy protected by the California Constitution.
1
Revenue and Taxation Code section 18671 authorizes withholding from payments other than
earnings.
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Section 1 of article I of the Constitution provides:
“All people are by nature free and independent and have inalienable rights. Among
these are enjoying and defending life and liberty, acquiring, possessing, and protecting
property, and pursuing and obtaining safety, happiness, and privacy.”
In 67 Ops.Cal.Atty.Gen. 414 (1984), we analyzed the constitutional right of privacy with respect to
whether the California Student Aid Commission could disclose to schools and institutional lenders the
names of students who were delinquent in their payments to the State Guaranteed Loan Program or who
had defaulted on their loans. We observed with respect to the governing principles:
“In this state, privacy is expressly declared to be an inalienable right. (Cal. Const.,
art. I, § 1.) Although it has been only 12 years since the people elected to place privacy
among the inalienable rights expressly guaranteed in the Declaration of Rights, traditional
principles of constitutional law inform its application. [Citation.] Prior to 1972, privacy had
been identified as a fundamental liberty implicitly guaranteed by the federal Constitution;
as such, it is protected even from incidental encroachment absent the demonstration of
some compelling interest that is both legitimate and overriding. [Citation.] We have
previously alluded to such ‘implicitly guaranteed’ federal zones of privacy.
“ ‘. . . The Supreme Court of the United States, in Griswold v. Connecticut (1965)
381 U.S. 479, explicitly recognized the existence of certain “zones of privacy.” The court
found this right, while not expressly provided in the Constitution to be the result of the
interrelationship of express constitutional provisions and to be necessary for the
implementation of these express protections. . . . It would, of course, be impossible to
enumerate all of the possible zones of privacy, but they have been held to include, by way
of example, privacy “in associations” including privacy of membership lists of a
constitutionally valid organization [citations], privacy in the “private realm of family life”
[citation], privacy “surrounding the marriage relationship” [citation], privacy to one’s home
[citations], and privacy in one’s personal financial affairs [citation]. The last cited case
observed that in determining the constitutional propriety of any such limitation upon the
fundamental right of privacy there must be a balancing of interests between the
government’s need to preserve the efficiency and integrity of the public service on the one
hand and the right to maintain privacy in one’s personal affairs on the other. In such a
case, the government must demonstrate the necessity for such limitation upon the right in
question and must show not merely that the restriction is rationally related to the
accomplishment of a permissible purpose but that the need is compelling. Moreover, the
intrusion must not be overly broad; it must be viewed in the light of less drastic means for
achieving the same basic purpose. [Citations.]’ [Citation.]
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“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Financial information clearly falls within the zone of privacy under article I, section
1, of the California Constitution [citations] which immunizes such information, including that
in the custody of third parties, from disclosure [citations], except where (1) such disclosure
is made pursuant to a compelling public interest which is both legitimate and overriding
[citations], and (2) the scope of disclosure is narrowly circumscribed [citation].” (Id., at
pp. 419-421.)
We have no doubt that the constitutional right of privacy generally covers information about
a person’s personal financial affairs (see Doyle v. State Bar (1982) 32 Cal. 3d 12, 19; Valley Bank of
Nevada v. Superior Court (1975) 15 Cal. 3d 652, 656; Burrows v. Superior Court (1974) 13 Cal. 3d
238, 243; Sehlmeyer v. Department of General Services (1993) 17 Cal. App. 4th 1072, 1078;
Moskowitz v. Superior Court (1982) 137 Cal. App. 3d 313, 315; Rifkind v. Superior Court (1981) 123
Cal. App. 3d 1045, 1050-1051; 67 Ops.Cal.Atty.Gen. 414, 420-421 (1986)), including tax obligations
(see Rev. & Tax. Code, § 19542; 26 U.S.C. §§ 6103, 7213; Sav-On Drugs, Inc. v. Superior Court
(1975) 15 Cal. 3d 1, 6; Webb v. Standard Oil of California (1957) 49 Cal. 2d 509, 513; Brown v.
Superior Court (1977) 71 Cal. App. 3d 141, 143-144). Although the amount of a district attorney’s total
salary is a matter of public record (§ 6254.8), deductions made to satisfy tax liens or for other purposes
generally are not. (See Stats. 1998, ch. 324, § 11.11.) In 64 Ops.Cal.Atty.Gen. 575, 584 (1981), we
stated with respect to the disclosure of deductions from the salaries of employees of a private contractor
receiving a federal subsidy administered by a state agency:
“. . . [ W]e feel that disclosure of information about deductions that are taken from
an individual carpenter’s wages would amount to an unwarranted invasion of personal
privacy. While amounts of deductions may be arrived at through formulae which are for
the most part ‘standardized,’ in practice, they are computed on an individualized basis
using not only data that we have regarded as personal and deserving of privacy (such as
gross salary or wage classification) but also data which is totally unrelated to the
carpenter’s work (such as number of claimed exemptions or marital status) and the
disclosure of which serves no public interest. Accordingly, we find that disclosure of the
carpenters’ deductions would constitute a particularly intrusive invasion into their privacy,
without a countervailing public interest served by their disclosure.”
As indicated in our prior opinions and by the courts (Braun v. City of Taft (1984) 156
Cal. App. 3d 332, 346-347; see CBS, Inc. v. Block (1986) 42 Cal. 3d 646, 653-655; New York Times
Co. v. Superior Court (1990) 218 Cal. App. 3d 1579, 1584-1585), the public’s interest in knowing
specific information must be weighed against the individual’s privacy interests when determining the scope
of the constitutional right of privacy. Here, looking at the various factors concerning the proposed
disclosure, we find particularly significant that the disclosure deals with the enforcement of federal and state
tax liens. While the precise information in question has not previously been disclosed, the public is well
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aware of the tax dispute between the district attorney and the tax officials. The federal and state tax liens
on file are public records and the lien information is not confidential. (See William E. Schrambling
Accounting Corp. v. U.S. (9th Cir. 1991) 937 F.2d 1485, 1489 [“the purpose of recording the lien . . .
is to place the public on notice of the lien”]; Lambert v. United States (9th Cir. 1988) 854 F.2d 335,
338.)
The public interest would be served in knowing the manner in which the federal and state
tax authorities are performing their official duties. Are delinquent taxes owed to the federal and state
governments being collected? Is the district attorney seeking or receiving any special treatment from the
tax officials due to his position as district attorney?
The public also has an interest in knowing whether the district attorney is in the process of
solving his tax disputes and reducing his significant financial obligations as reported in the press. Disclosure
may assure the public that the district attorney is not subject, for example, to possible undue influence
caused by the scope of his financial difficulties. Here, we have a county officer who is charged with
enforcing the law and a public interest in knowing whether, and to what extent, he is complying with the tax
laws that he previously violated. In CBS, Inc. v. Block, supra, 42 Cal.3d at 655, the Supreme Court
recognized that “[t]he interest of society in ensuring accountability is particularly strong where the discretion
invested in a government official is unfettered . . . .” What the district attorney does in reducing his tax
debts affects the public’s trust in the performance of his official, discretionary duties.
The proposed disclosures, therefore, cannot be viewed in the same light as disclosing
payroll deductions for medical insurance premiums or deferred compensation investments. The latter are
voluntary deductions involving private decisions on how one’s salary is to be spent. Here, on the other
hand, we have a law enforcement official who is subject to the forced collection of delinquent tax debts,
where he has been found guilty of violating the law.
Hence, we believe that the totality of the circumstances presented, including the nature of
the information already disclosed and the public interest in preserving the integrity of official conduct, allows
disclosure of the requested information without constituting a violation of the constitutional right of privacy.
However, in providing the specific payroll information requested, the county auditor-controller must
maintain the confidentiality of any information the disclosure of which is not justified by the public interest.
(See Braun v. City of Taft, supra, 154 Cal.App.3d at 344-345; cf. Campbell v. United States Civil
Service Commission (10th Cir. 1976) 539 F.2d 58, 62.)2
2
We note that the California Public Records Act (Gov. Code, §§ 6250-6270) does not prohibit the
disclosure of any information but rather authorizes a public agency to withhold the disclosure of a particular
record. (CBS, Inc. v. Block, supra, 42 Cal.3d at 652 [“The Act endows the agency with discretionary
authority to override the statutory exceptions when a dominating public interest favors disclosure”]; Register
Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal. App. 3d 893, 905; San Gabriel
Tribune v. Superior Court (1983) 143 Cal. App. 3d 762, 773; Berkeley Police Assn. v. City of Berkeley
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We conclude that a county auditor-controller is generally prohibited from disclosing to the
public information regarding the amount of money deducted from an elected county officer’s salary to
satisfy a state or federal tax lien, but special circumstances may allow for such disclosure in a particular
case.
*****
(1977) 76 Cal. App. 3d 931, 941; Black Panther Party v. Kehoe (1974) 42 Cal. App. 3d 645, 656.) We thus
need not discuss its provisions here.
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