Roy Nilson v. Department of Revenue (SPR 20171219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 11, 2017 SPR17/1219 Roger H. Randall Department of Revenue 19 Staniford Street Boston, MA 02114 Dear Mr. Randall: I have received the petition of Roy Nilson appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 11, 2017, Mr. Nilson requested "FY 2017 copies of State Tax Form 5941 filed by all utility companies for the Town of Petersham." In a response dated August 11, 2017, the Department denied his request under G.L. c. 59. In a supplemental response dated September 8, 2017, the Department again denied his request under G. L. c. 62C, § 21(a) and its regulations, 830 C.M.R. 62C.21.1(1)-(4) and 830 C.M.R. 62C.21.1(6), as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Departme11t' s August 11th response, Mr. Nilson petitioned this office and this appeal, SPR17/1219, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA( d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Roger Randall SPR17/1219 Page2 September 11, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's August 11th response 111 In its August 11 response, the Department indicated that "Mass. General Laws chapter 59 limits access to materials filed with the Department of Revenue to certain officials ofthe Town it relates to and to personnel at the Department of Revenue." Subsequent to the intervention by a member of the Public Records Division staff, the Department provided a revised written response on September 8, 2017. The Department's September 8th response The Department denied Mr. Nilson's request for the responsive records pursuant to G. L. c. 62C, § 21(a) and its regulations, 830 C.M.R. 62C.21.1(1)-(4) and 830 C.M.R. 62C.21.1(6), as they operate through Exemption (a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G.L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chern. Corp. v. Dep't ofEnvtl Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists

Roger Randall SPR1711219 Page 3 September 11, 2017 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its supplemental response to this office on September gth, the Department indicated that "[a] return and any other document filed with the Commissioner, and any information contained in or set forth by the return or document filed with the Commissioner, is excluded from the definition of 'public records' under G. L. c. 4, § 7, cl. (26)(a), because they are documents that are 'specifically or by necessary implication exempted from disclosure by statute,' which they are, by G. L. c. 62C, § 21(a)." The Department also indicated that Mr. Nilson's contention as to whether "supporting documents" are part of a tax return "is answered by the Department's confidentiality regulation, 830 CMR 62C.21.1(2) (Definitions), and particularly the definition of Return. For the purposes of830 CMR 62C.21.1(1)-(4) and 830 CMR 62C.21.1(6), a return is any tax return, tax information or declaration together with any schedules, list or other statement designed to supplement or to become a part ofs uch return, which are filed with the Commissioner [emphasis added here] ." The Department attached a blank Form 5941 to its supplemental response and further indicated that" ... it is either a tax return (the heading reads, 'a return of personal property subject to valuation') or it calls for an attachment of a list of their utility poles and wires, which of course would be a 'list or other statement designed to supplement or to become part of such return' as described in the regulation quoted above. Therefore, this Form 5941 is part ofthe tax return and not-disclosable." Conclusion Seeing that the requested information falls under the Department's interpretation of "return" information which is exempt by statute, I find that the Department has supported its Exemption (a) claim to withhold the responsive information from public disclosure. Accordingly, I will consider this administrative appeal closed. If Mr. Nilson is not satisfied with the resolution of this administrative appeal, please be advised that this Office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Roy Nilson