Public Access Counselor Finds Revenue Did Not Violate Public Records Rules by Denying Request for Confidential Information

Excerpts of the PAC letter follow:

Your complaint dated May 5, 2014 alleges the Indiana Department of Revenue violated the Access to Public Records Act by not providing records responsive to your request in violation of Ind. Code § 5-14-3-3(b).

You ordered a product through LIMU Company, LLC, a Florida corporation, which charged $8.40 pursuant to the 7% Indiana sales tax with respect to your order. You are seeking information from INDOR with regards to LIMU and this sales tax. Specifically, you are seeking “the agreement document and all collateral documents made by the state of Indiana with The LIMU Company”, “the documents of authority granted to IDOR … that authorize the collection of a tax on products purchased by anyone from Indiana from an out of state company”, “the document that identifies the names of other companies with whom the state of Indiana or IDOR has an agreement to collect a tax on purchases made by citizens of Indiana from out of state persons or companies”, “the document that verifies that IDOR actually did receive the payment [you] submitted to LIMU company”, and “the document of determination, along with the facts and reference to the law in support, that authorizes the state of Indiana to override the provisions of the Constitution  for the United States that places interstate commerce under the authority of the United States of America.”

On March 31, 2014, you made a request to INDOR for documents. You allege INDOR denied this March 31, 2014 request in its entirety by a letter dated March 26, 2014. However, it is unclear if the date was in error and the letter was in response to the March 31, 2014 request, or if the letter was in response to an earlier email request for the same or similar documents. On April 2, 2014, you responded in writing to INDOR’s March 26, 2014 letter, addressing your concerns; it does not appear you received a response to your April 2, 2014 letter.

On May 19, 2014, INDOR responded to your formal complaint. INDOR specifically addresses only the first document you requested on your March 31, 2014 request: “’the agreement document and all collateral documents made by the State of Indiana with the LIMU Company … to collect kind of tax on my purchase of product from that company.” INDOR states the document you seek is “a completed Form BT-1 ‘Indiana Department of Revenue Business Tax Application’ which contains a provision for the applicant to collect ‘Out-of-State Use Tax.’” This document, they argue, contains taxpayer information declared confidential under IC § 6-8.1-7-1 and social security numbers which are prohibited from disclosure under IC § 4-1-10-3.

ANALYSIS

The public policy of the APRA states that “(p)roviding persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” See Ind. Code § 5-14-3-1. The Indiana Department of Revenue is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(1). Accordingly, any person has the right to inspect and copy the DOR’s public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 3-3(a).

A request for records may be oral or written. See Ind. Code § 5-14-3-3(a); § 5-14-3-9(c). If the request is delivered in person and the agency does not respond within 24 hours, the request is deemed denied. See Ind. Code § 5-14-3-9(a). If the request is delivered by mail or facsimile and the agency does not respond to the request within seven (7) days of receipt, the request is deemed denied. See Ind. Code § 5-14-3-9(b). A response from the public agency could be an acknowledgement the request has been received and information regarding how or when the agency intends to comply.

As to the tax documentation requested by the Florida Company, DOR has cited the relevant statutes declaring the information confidential. Ind. Code § 6-8.1-7-1(a) declares confidential all information regarding taxpayer documentation and prohibits the Department of Revenue from disclosing said documents. The Access to Public Records Act states records declared confidential shall not be released without a court order under Ind. Code § 5-14-3-4(a)(1).

DOR’s only potential shortcoming is not providing you with a copy of the Indiana Code section dealing with the collection of out of state taxes. However, DOR is not the custodian of the Indiana Code; it is freely available. In fact, DOR does publish a link to the relevant tax collection statutory authority on the Frequently Asked Questions page of their website. I am no authority on the matter, but it appears your primary contention is with Indiana’s Use Tax. It can be found at Ind. Code § 6-2.5-3 et. al. Any Constitutional
challenge to the tax would be addressed by a Federal court.

http://www.in.gov/pac/advisory/files/14-FC-102.pdf

Public Access Counselor Finds Delaware County Assessor Did Not Violate Access to Public Records Act

May 1, 2014

Tom J. Terry

3804 W. Allen Ct.

Muncie, IN 47304

 Re: Formal Complaint 14-FC-72; Alleged Violation of the Access to Public

Records Act by the Delaware County Assessor

Dear Mr. Terry,

This advisory opinion is in response to your formal complaint alleging the Delaware County Assessor (“Assessor”) violated the Access to Public Records Act (“APRA”), Ind. Code § 5-14-3-1 et. seq. The Assessor has provided a response to your complaint via Mr. Steven D. Murphy, Esq. His response is attached for your review. Pursuant to Ind. Code §5-14-5-10, I issue the following opinion to your formal complaint received by the Officeof the Public Access Counselor on April 1, 2014.

BACKGROUND

Your complaint dated April 1, 2014 alleges the Delaware County Assessor violated the Access to Public Records Act by not providing records responsive to your request in violation of Ind. Code § 5-14-3-3(a).

On March 7, 2014 you served upon the Assessor a public records request seeking information related to service contracts entered into by the County. The Assessor responded with a timely acknowledgement on March 10, 2014 advising you that a search had been undertaken to retrieve the records and a status update would be provided to you on March 14, 2014. After no status update was given, you made a second request on March 21, 2014. Again the Assessor responded stating the record search was still in progress and an update would be provided to you on March 28, 2014. An update was written on March 28, 2014, but not mailed until March 31, 2014.

 

You filed your complaint on April 1, 2014; however, on April 2, 2014, the records were provided to you. The production of the documents took approximately 25 calendar days or 18 business days. Your contention appears to be the lack of updates provided to you prior to production.

DISCUSSION

The public policy of the APRA states that “(p)roviding persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” See Ind. Code § 5-14-3-1. The Delaware County Assessor is a public agency for the purposes of the APRA. See Ind. Code § 5-14-3-2(n)(1). Accordingly, any person has the right to inspect and copy the Assessor’s public records during regular business hours unless the records are protected from disclosure as confidential or otherwise exempt under the APRA. See Ind. Code § 5-14- 3-3(a).

If an agency determines a search may take a lengthy amount of time to produce, I routinely encourage public officials to update the requestors periodically as to the status of the search. While I consider this best practice, the APRA does not require it. It appears the Assessor intended to provide periodic updates and failed to do so. Nonetheless, it is not violative of the law, nor do I consider 18 business days to be an extraordinarily long time frame for producing records of this nature. The APRA requires a public agency to produce documents “within a reasonable amount of time”. See Ind. Code § 5-14- 3-3(b). The searching and retrieval time (as well as attorney review) appears to be reasonable in these circumstances. It is unfortunate the Assessor did not follow through on his promise of updating you on the status of the search, but he is not in violation of the law for that oversight.

CONCLUSION

Based on the foregoing, it is the Opinion of the Public Access Counselor the Delaware County Assessor did not violate the Access to Public Records Act. As indicated in the footnote, should you feel it necessary to file a subsequent complaint as to the actual production of documents; the Assessor will be afforded an opportunity to respond to those allegations. 

http://www.in.gov/pac/advisory/files/14-FC-72.pdf

Public Access Counselor Finds Violation of Confidentiality Rules by Alleged Acts of Assessor

Excerpt of the Public Access Counselor's Opinion follow:

BACKGROUND
Your inquiry stems from two similar although distinct situations in which confidential information is believed to have been disclosed in an unauthorized manner. In the first situation, County No. 1 contracted with a third-party firm to assist with tax appeal issues. A taxpayer retailer submitted to County No. 1, an appeal package which included store-specific gross sales data. The County’s contracting firm then allegedly disclosed the data to a non-contracted third party appraiser.

In the second instance, County No. 2 received from a taxpayer information regarding the taxpayer’s income-generating property. That information, also given to County No. 2’s contracted third-party vendor, was disclosed to the same non-contracted third party appraiser in the above scenario.

You frame your question as to the legality of the disclosure within the provisions of Ind. Code § 6-1.1-35 et. seq. Please note Ind. Code § 6-1.1-35-9(c)(3) authorizes the Indiana Public Access Counselor to speak on these matters.

ANALYSIS

The public policy of the APRA states that “(p)roviding persons with information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.” See Ind. Code § 5-14-3-1. Indiana County’s are public agencies for the purposes of the APRA. See Ind. Code § 5-14-3-2. Accordingly, any person has the right to inspect and copy the County’s public records during regular business hours unless the records are excepted from disclosure as confidential or otherwise non-disclosable under the APRA. See Ind. Code § 5-14-3-3(a).

Public records declared confidential by state statute are required to be withheld under Ind. Code § 5-14-3-4(1). Therefore, the enumerated list of exceptions under Section 4 of the APRA is not exhaustive. To the point at hand, Ind. Code § 6-1.1-35-9(a) states the following:

All information that is related to earnings, income, profits, losses, or expenditures and that is: (1) given by a person to: (A) an assessing official; (B) an employee of an assessing official; or (C) an officer or employee of an entity that contracts with a board of county commissioners or a county assessor under IC 6-1.1-36-12; or (2) acquired by: (A) an assessing official; (B) an employee of an assessing official; or (C) an officer or employee of an entity that contracts with a board of county commissioners or a county assessor under IC 6-1.1-36-12; in the performance of the person's duties; is confidential.

In the first scenario you present, you suggest the annual gross sales of a taxpayer were disclosed to a non-contract third party assessor. Presumably, this entity would not fall under any of the enumerated exceptions in Subsection 9. Therefore, if a formal complaint was filed with this Office without any rebuttal evidence justifying the disclosure, a violation of the APRA and of Ind. Code § 6-1.1-35-9 would be declared.

Likewise, the second scenario you present alleges that financial information of income property was unlawfully disclosed. Both gross annual sales and the financial information of income property would be protected under Ind. Code § 6-1.1-35-9(a) and a similar violation would likely result.

Please note the penalties for such a violation are severe. Consider Ind. Code § 6-1.1-35-11:

(a) An assessing official or an employee of an assessing official shall immediately be dismissed from that position if the person discloses in an unauthorized manner any information that is classified as confidential under section 9 of this chapter.
(b) If an officer or employee of an entity that contracts with a board of county commissioners or a county assessor under IC 6-1.1-36-12 discloses in an unauthorized manner any information that is classified as confidential under section 9 of this chapter:
(1) the contract between the entity and the board is void as of the date of the disclosure;
(2) the entity forfeits all right to payments owed under the contract after the date of disclosure;
(3) the entity and its affiliates are barred for three (3) years after the date of disclosure from entering into a contract with a board or a county assessor under IC 6-1.1-36-12; and
(4) the taxpayer whose information was disclosed has a right of action for triple damages against the entity.

While the Public Access Counselor has no enforcement authority over these matters, the facts as you present them would allow a trial court to levy these penalties if proven.

...

Public Access Counselor Finds Marshall County Assessor Did Not Violate Public Access Laws in Denying Taxpayer Gross Rent Multiplier Information

Excerpts of the Public Access Counselor's Determination follow:

The APRA states that a public agency may not disclose records that are "declared confidential by state statute." I.C. § 5-14-3-4(a)(1). I.C. § 6-1.1-35-9 provides the following regarding certain confidential information:

Sec. 9. (a) All information that is related to earnings, income, profits, losses, or expenditures and that is:

(1) Given by a person to:

(A) an assessing official;

(B) an employee of an assessing official; or

(C) an officer or employee of an entity that contracts with a board of county commissions or a county assessor under IC 6-1.1-36-12; or

(2) acquired by:

(A) an assessing official;

(B) an employee of an assessing official; or

(C) an officer or employee of an entity that contracts with a board of county commissioners or a county assessor under IC 6-1.1-35-12;

in the performance of the person’s duties; is confidential. The assessed valuation of tangible property is a matter of public record and is thus not confidential. Confidential information may be disclosed only in a manner that is authorized under subsection (b), (c), (d), or (g).

Confidential information may be disclosed during the course of a judicial proceeding in which the regularity of an assessment is questioned. See I.C. § 6-1.1-35-9(d); See also Opinion of the Public Access Counselor 09-FC-154. An assessing official or an employee of an assessing official shall immediately be dismissed from that position if the person discloses in an unauthorized manner any information that is classified as confidential under section 9. See I.C. § 6-1.1-35-11. Further, if a county or township official or an employee of such an official or board discloses in an unauthorized manner information that is classified as confidential under section 9, a person who owns property which the information pertains to may recover liquidated damages in the amount of five-hundred dollars ($500); or the person’s actual damages resulting from the unauthorized disclosure. See I.C. § 6-1.1-35-12. Finally, a public employee or official who knowingly or intentionally discloses information classified as confidential by state statute commits a Class A infraction. See I.C. § 5-14-3-10.


The County has provided that it utilizes the actual income approach on sold rental properties to arrive at the GRM for specific areas/types of properties in the county. Upon receiving the actual income received by each landlord, the Assessor divides the Sales Price of the property by the Income to determine the GRM. There are three components in the calculation of value using the income approach; the GRM, Assessed Value, and Income. The Assessed Value divided by the GRM equals the Income received by the landlord. There is no dispute that the income from the rental property is considered to be confidential pursuant to I.C. § 6-1.1-35-9. The Assessor has provided that the Assessed Value of the property is readily available via the County’s website. Thus, if the GRM were also to be provided, one would be able to determine the Income for each property, which the Assessor is prohibited from doing. Thus, as applied specifically to the Assessor under the facts presented, it is my opinion that the Assessor would be prohibited from providing you with the GRM in light of the other information that is already made available by the County. As such, it is my opinion that the Assessor did not violate the APRA in response to your request. See also Opinion of the Public Access Counselor 10- FC-242.

See the full order here:

http://www.in.gov/pac/advisory/files/13-FC-18.pdf

The PAC decision 10-FC-242 referenced above has a similar albeit briefer finding:

The APRA prohibits public agencies from releasing records declared confidential by state statute. I.C. § 5-14-3-4(a)(1). Under I.C. § 6-1.1-35-9, “[a]ll information that is related to earnings, income, profits, losses, or expenditures” that is given by a person to an assessing official is confidential. Accordingly, the Assessor denied you access to income information relating to rental properties in St. Joseph County. In my opinion, the Assessor is required by statute to keep such information confidential. I understand your argument that the income information is often voluntarily released by landlords who advertise it to the public. However, some landlords may choose not to release the information, even if they have done so in the past. Moreover, even if they release it to the public voluntarily through other sources, that does not relieve the Assessor of its statutory duty to keep such information confidential. The APRA provides criminal penalties for public officials and employees who knowingly or intentionally disclose

information classified as confidential by state statute. See I.C. § 5-14-3-10(a).

Consequently, in my opinion the Assessor has not violated the APRA by denying you access to the properties’ income information.

http://www.in.gov/pac/advisory/files/10-FC-242.pdf