Untitled Texas Attorney General Opinion ( 1974 )

February 11, 1974
The Honorable Robert S. Calvert Opinion No. H- 223
Comptroller of Public Accounts
State Finance Building Re: Impact of the Open Records
Austin, Texas Act and .tie Open Meetings Act on
administrative proceedings held
by the Comptroller’s Hearings
Division
Dear Mr. Cdvert:
You have submitted the follotiing questions to us for our opinion:
1) Keeping the provisi& of the Open Records Act in
mind, does Art. 2O.ll(G) or any other provision of
Title 122A.. Taxation-General, V. T. C. S. , prohibit
any official or employee of the ,Comptroller from:
a) disclosing the .fact that an individual
has requested a redetermination or
claim for refund.haaring?
b) disclosing the resolution of legal
issues, including their factual back-
grounds, that arose in administrative
proceedings conducted by the Camp;
troller’s Hearings Division when.
disclosure would identify the individ-
ual taxpayer who raised the issues?
2) Do the administrative proceedings conducted by the
Comptroller’s Hearings Division pursuant to the provisions
of Title 122a. Tax. -Gen., V. T. C. S., fall within the defi-
nition of “meeting” as used in the Open Meetings Act, Art.
6252-17, V. T. C. S. 1
p. 1040
The Honorable Robert S. Calvert, page 2 (H-223)
3) Should the preceding question be answered affirma-
tively, can the information acquired by the Comptroller!6
office in its investigation of the taxpayer be presented
at such proceedings without violating Art. 20.11(G), Tax.
-Gen., V. T. C. S. ?
The purpose of the Open Records Act, Art. 6252-17a, V. T. C. S., is to
provide the public with access to information regarding the affairs of government
and, to this end, its provisions are to be construed liberally. Subject to certain
exceptions, the Act makes public all information collected, assembled, or main-
tained by governmental bodies pursuant to law or ordinance or in connection with
the transaction of official business. One of the exceptions is made by § 3(a)(l)
which exempts from disclosure to the public “information deemed confidential
by law,~ either Constitutional, statutory, or by judicial decision. ”
Relevant to the exception in the Act for “information deemed confidential
by law” ara several provisions found in Title 122A, Tax. -Gen. , V. T. C.S. (1969).
One of these is Article 1. 031 which states:
“(1) For the purpose of carrying out the terms
of this Title the Comptroller or any authorized agent
shall have the authority to examine at the principal or
any other office in the United States of any person,
firm, agent, or corporation permitted to do busines
in this State, all books, records and papers and also
any officers or employees thereof, under oath. . . .
The Comptroller shall not make public or use said
information derived in the course of said examination
of said books, records and papers and/or officers or
employees except for the purpose of a judicial proceed-
ing for the collection of delinquent taxes in which the
State of Texas is a party. . . .”
In addition Article 20.11 (G)(l) provides:
“(G) Disclosure of Information Unlawful:
p. 1041
The Honorable Robert S. Calvert, page 3 (H-223)
“Examination of Records.
“(1) It shall be a misdemeanor for any
official or employee of the Comptroller to make
known in any manner whatever the business affairs,
operations or information obtained by an investigation
of records and activities of any retailer or any other
person visited or examined in the discharge of
official duty, or the amount or source of income,
profits, losses, expenditures, or any particular
thereof, set forth or disclosed in any return; or
to permit. any return or copy thereof; or any book
containing any abstract or particulars thereof to be
seen or exam.ined by any’person not connected with
the Comptroller. It
Also’ see Articles~ 7.25, 7.26. .12.10. ,12.10A and 13.17 5 7. Taxation-General
V. T. C. S.
The effect of these provisions is to make certaininformation in the
possession of the Comptroller confidential and thereby bring it within the
8 3(a)(l) exception to the Open Records Act, but nowhere in them, or any
other provision of Title 122A. is there any reference to maintaining the confi-
dentiality of the fact of a taxpayer’s request for a redetermination or claim
for refund hearing. Revelation of the fact that a taxpayer has requested a
reconsideration of his tax status is hardly comparable to revealing the actual
details of his business affairs whith have been uncovered by the Comptroller
during his investigations and which tiill’be considered by the Comptroller
in reaching a conclusion. Accordinglywhile the latter information is expressly
made confidential by the provisions of Title 122A, the mere fact that a hearing
has been sought is not. Since the confidentiality provisions of Title 122A do
not encompass the fact that an individual has requested a redetermination or
claim for refund hearing. that information is made public by mandate of the
Open Records Act, and officials or employees of the Comptroller may disclose
it without penalty.
On the other hand the quoted provisions of Title 122A expressly prohibit,
the Comptroller from disclosing “in any manner whatever” information about
p. 1042
The Honorable Robert S. Calvert, page 4 (H-223)
a taxpayer’s affairs which has been obtained while examining his books, records,
returns, etc. This information is deemed confidential by law, and $ 3(a)(l)
excepts it from the disclosure requirements of the Open Records Act. But it
is just this kind of information which the Comptroller must consider at the
hearings he conducts to resolve an individual’s claim for a refund or his request
for a redetermination. In reporting his resolution of the issues raised at these
administrative proceedings, the Comptroller must refrain from identifying the
name of the taxpayer involved or revealing any information as to the nature of
the taxpayer’s business operations which would serve to identify him. In his
decisions he must discuss the principles of law applicable to the factual situation
in question without going into details which would make identification possible.
But as long as he confines himself to generalities, and the identity of the individ-
ual taxpayer involved remains unknown, the Comptroller may disclose the
decisions he reaches without violating the confidentiality provisions of Title
122A.
Your second question requires us to consider what effect the Open Meet-
ings Act, Art. 6252-17, V. T. C. S. , has on the administrative proceedings
conducted by the Comptroller’s Hearings Division. In .general the Open Meet-
ings Act requires every regular, special, or called meeting or session of
every governmental body to be open to the public. Section 1oftheA& defines “meet-
ing” as follows:
“(a) ‘Meeting’ means any deliberation
between a quorum of members of a ,governmental
body at which any public business or public policy
over which the governmental body has supervision
or control is discussed or considered, or at which
any formal action is taken. ” (emphasis added)
The Comptroller’s Hearing Division conducts hearings in order to
consider the requests of individual taxpayers for a refund or for a redeter-
mination of their tax status. Of necessity these proceedings must focus on
the details of the taxpayer’s affairs; information contained in the taxpayer’s
books, records, and papers must be examined and discussed.
But Articles 1. 031 and 20.11 (G)(l) of Title 122A expressly prohibit the
Comptroller’s office from making information about a taxpayer’s affairs public
“in any manner whatever”. Compliance with these provisions would be impos-
p. 1043
The Honorable Robert S. Calvert, page 5 (H-223)
sible if the Comptroller were to open to the public the proceedings at which
just such information was considered. In effect, the confidentiality provisions
of Title 122A make the administrative proceedings conducted by the Comptroller
private affairs insofar as they are concerned with the business, operations,
amount of income, etc. , of individual taxpayers.
Since these proceedings, usually conducted by a hearing examiner
representing the Comptroller, do not involve “deliberation between a quorum
of members of a governmental body at which any public business is public
policy. . . is discussed”, they are not “meetings” as defined in $1 of the Open
Meetings Act. They need not be open to the public, and indeed the Comptroller
should close them to the public, if necessary, to comply with the prohibitions
contained in Articles 1. 031 and 20.11 (G)(l) of Title 122A.
SUMMARY
The provisions of Title 122A do not prohibit the
Comptroller from disclosing the fact that an individual
has requested a redetermination or claim for refund
hearing. While the Comptroller may disclose his resolu-
tion of the issues raised in the administrative proceedings
he conducts, he must not do so in a manner that will make
possible identification of the individual taxpayer involved.
The administrative proceedings conducted by the Comp-
troller’s Hearings Division are not “meetings” as defined
in the Open Meetings Act and should not be open to the
public.
Jours very truly,
u Attorney General of Texas
--
DAVID M. KE:NDALL, Chairman
Opinion Committee
p. 1044