Anthony A. Scibelli v. Department of Revenue (SPR 20180713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 29,201 8 SPR181713 Roger H. Randall, Esq. Tax Counsel Litigation Bureau Department of Revenue 100 Cambridge Street, 7th lo or Boston, MA 021 14-2582 Dear Attorney Randall: I have received the petition of Anthony A. Scibelli, Esq. of Barclay Darnon on behalf of an identified client appealing the response of the Department of Revenue Litigation Bureau (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Scibelli requested various records pertaining to a tax audit file for tax years 2003 - 2009 regarding his client. In a March 6,2018 response, the Department informed Attorney Scibelli that the records are restricted by G. L. c. 62C, § 21(a) and 950 C.M.R. 62C.21.1(2) as the statute and regulation operate through Exemption (a) of the Public Records Law. However, the Department may release the tax records to the taxpayer themselves and/or a person with an executed Power of Attorney requesting the records on behalf of the taxpayer. The Department also asked that Attorney Scibelli consult with his client and add information to the "Power of Attorney" filed with the Department. At the time of the March 6thr esponse, the Department was commencing its search and compilation of the records. On May 14,2018 , after the Department did not respond to his March and April emails inquiring when the Department would provide the tax records, Attorney Scibelli petitioned the Supervisor of Records (Supervisor). 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, 5 10A(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, 5 7(26). - 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 H. Randall, Esq. Page 2 May 29,20 18 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, 5 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (a) Exemption (a), lcnown as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute 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. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). 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. G. L. c. 62C, $21( a) The statute that the Department indicates restricts the disclosure of taxpayer records is G. L. c. 62C, 5 21(a) as it operates through Exemption (a). G. L. c. 62C, 5 21(a) states: Section 21. (a) The disclosure by the commissioner, or by any deputy, assistant, clerk or assessor, or other employee of the commonwealth or of any city or town therein, to any person but the taxpayer or his representative, of any information contained in or set forth by any return or document filed with the commissioner, except in proceedings or other activities to determine or collect the tax or for the purpose of criminal prosecution under this chapter, chapters sixty A, sixty-two to sixty-five C, inclusive, section ten of chapter one hundred and twenty-one A and section twenty-one of chapter one hundred and thirty- eight, is prohibited.

Roger H. Randall, Esq. Page 3 May 29,2018 The Department indicates that the definition of "tax return" includes all materials derived and developed by the Department from a tax return or other source. 830 C.M.R. 62C.21.1(2). defines "Returns" as: Returns. For the purposes of 830 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, lists or other statements designed to supplement or to become a part of such return, which are filed with the Commissioner. For the purposes of 830 CMR 62C.21.1(1) and 830 CMR 62C.21 .1(6) only, a return includes information developed by the Department of Revenue based on material filed, or required to be filed, with the Commissioner, or based on information received from the Internal Revenue Service or any other taxing authority or derived from any other source. C.M.R. 62C.21.1(2). Accordingly, I find that the Department has met its burden of specificity in withholding taxpayer records from public disclosure under G. L. c. 62C, 5 21(a) as it operates through Exemption (a) of the Public Records Law. Reason for the request; Unique right of access In his request letter and petition to the Supervisor, Attorney Scibelli states the records are requested in his representation of an identified client before the Department pertaining to a tax audit. The Public Records Law does not distinguish between individuals seeking public records. Attorney Scibelli's status as an attorney seeking records for a client does not provide him with any greater right of access under the Public Records Law than any other person. See G. L. c. 66, 5 10(a) (public records are to be provided to "any person"); see also Bouaas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requestor. Therefore, Attorney Scibelli's interest in obtaining the responsive records for his client shall play no part in whether the records should be released to the public. Furthermore, the Public Records Law appeal process shall not apply to situations in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. 950 C.M.R. 32.08(1)(a). Whereas, the records are directly related to an active administrative process between the Department and an identified taxpayer, an active administrative process of an identified taxpayer, that the Department has informed Attorney Scibelli that it will provide the records to his client to Attorney Scibelli with an executed "Power of Attorney," I find that Attorney Scibelli has a unique right of access to the records through a statutory and regulatory means, and through the judicial system.

Roger H. Randall, Esq. Page 4 May 29,20 18 In a May 25t11e mail to a Public Records Division attorney, you explained that the Department has the responsive records ready to send to Attorney Scibelli, however, the Department is waiting for Attorney Scibelli to provide a corrected "Power of Attorney" from his client. Once the Department receives the corrected "Power of Attorney," the Department will provide the responsive records. Conclusion Accordingly, where the requested taxpayer records are restricted under the Public Records Law, and Attorney Scibelli and his client have a unique right of access to the requested records, I consider this administrative appeal closed. If Attorney Scibelli 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. G. L. c. 66, 5 10(b) (pursuing administrative appeal process does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Anthony A. Scibelli, Esq.