Shira Schoenberg v. Department of Revenue (SPR 20191585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records August 15, 2019 SPR19/1585 Naysa Woomer Department of Revenue ?111 100 Cambridge Street, Floor Boston, MA 02114-2582 Dear Ms. Woomer: I have received the petition of Shira Schoenberg of The Springfield Republican 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 July 12, 2019, Ms. Schoenberg requested" ... the latest marijuana tax distribution numbers." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1429 Determination of the Supervisor of Records (August 1, 2019). I closed SPR19/1429 based on the Department's provision of a supplemental response on July 25, 2019. Unsatisfied with the Depmiment's response, Ms. Schoenberg petitioned this office and this appeal, SPR19/1585, was opened as a result. Tile 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, § lO(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

Naysa Woomer SPR19/1585 Page 2 August 15, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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 July 25th response In its July 25, 2019 response, the Department cites the Local tax option statute, G. L. c. 64N, § 3. The statute provides in relevant part: Any city or town may impose a local sales tax upon the sale or transfer of marijuana or marijuana products by a marijuana retailer operating within the city or town to anyone other than a marijuana establishment at a rate not greater than 2 per cent of the total sales price received by the marijuana retailer as a consideration for the sale of marijuana or marijuana prnducts. A marijuana retailer shall pay a local sales tax imposed under this section to the commissioner at the same time and in the same manner as the sales tax due to the commonwealth. All sums received by the commissioner under this section shall not be considered received on account of the commonwealth and shall at least quarterly be distributed, credited and paid by the state treasurer upon certification of the commissioner to each city or town that has adopted this section in proportion to the amount of such sums received from the sale or transfer of marijuana and marijuana products in the city or town. G. L. c. 64N, § 3. The Department explains that under this statute, "[r]etailers pay sales tax with a return that is filed monthly with the Department of Revenue. G.L. c. 64H, § 2 (setting rate); c. 62C, § 16(h) (requirement of vendor to file a return)." The Depaiiment states that the retailers of marijuana also do the same. Further, pursuant to G. L. c. 62C, § 2l(a), the Department asse1is that it is prohibited from disclosing taxpayer-specific information. The statute provides in relevant paii: The disclosure by the commissioner, or by any ... other employee of the commonwealth, to any person but the taxpayer or his representative, ofa ny 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 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 twenty-one A and section twenty-one of chapter one hundred and thiiiy-eight, is prohibited. G. L. c. 62C, § 2l(a) (emphasis added).

Naysa Woomer SPR19/1585 Page 3 August 15, 2019 The Department explains that "[a] return includes 'information developed by the [Department] based on material filed, or required to be filed, with the Commissioner, or based on information ... derived from any other sources.' 830 CMR 62C.21.1(2) ...." The Depaiiment contends that "[i]t is clear under the statute that since the disclosure of any information contained in or set forth by any return or document filed with the commissioner is prohibited, that the exemption found in clause 26(a) of the definition of public record applies to the above statutory prohibition on disclosure ...." The Department posits that "[t]he only information that [it] has about the amount of local-option marijuana tax paid by a particular taxpayer is what is stated on or derived from that taxpayer's monthly return. That amount, stated on each tax return, is the amount collected under this local-option marijuana tax from that one establishment in each of these cities and towns." The Depaiiment explains that "[b] ecause there is only one taxpayer in each of these cities and towns (with the sole exception of Pittsfield), and since the identity of that one marijuana establishment is a public record, the release of the amount of local-option tax distributed to each city or town ... is the same as releasing the amount of tax collected from such individual taxpayer, which G.L. c. 62C, § 21(a), prohibits." The Department contends that "[i]t is [its] position that disclosure of the combined tax payments of two establishments in one city (here, Pittsfield) is tantamount to disclosure of the separate amounts paid by each taxpayer, because it is reasonably possible that the combined amounts can be separated by the inquirer based on external information .... [Therefore,] [w]ith only one establishment in each city or town (with two establishments in Pittsfield), the information that Ms. Schoenberg seeks is confidential tax return information, not statistical information that [the Department] may disclose." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 Comi, 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

Naysa Woomer SPR19/1585 Page 4 August 15, 2019 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department states that the information it" ... has about the amount of local-option marijuana tax paid by a particular taxpayer is what is stated or derived from the taxpayer's monthly return." The Department explains that "[b]ecause there is only one taxpayer in each of these cities and towns, ... and since the identity of that one marijuana establishment is a public record, the release of the amount of local-option tax distributed to each city or town is the same as releasing the amount of tax collected from such individual taxpayer, which G.L. c. 62C, § 21(a), prohibits." Further, the Depaiiment asserts that disclosure of the combined tax payments of a city with two establishments is also" ... tantamount to disclosure of the separate amounts paid by each taxpayer, because it is reasonably possible that the combined amounts can be separated by the inquirer based on external information ...." Based on the Department's response, in conjunction with the above referenced statute prohibiting from disclosure " ... any information contained in or set forth by any return or document filed with the commissioner ... ," I find the Department has met its burden to withhold responsive records pursuant to Exemption (a) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Schoenberg 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, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ r a ~ Supervisor of Records cc: Shira Schoenberg