State Records Committee Appeal 00-08

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DESERET NEWS, Appellant, vs.
UTAH STATE TAX COMMISSION, Appellee.

DECISION AND ORDER
Case No. 00-08

By this appeal, the Deseret News seeks an order compelling the Utah State Tax Commission to provide access to tax lien information on property of candidates seeking public office.

The State Records Committee, having reviewed materials submitted by the parties, and having heard oral argument and testimony of the parties on November 29, 2000, now issues the following Decision and Order.

FINDINGS OF FACT

1. On July 27, 2000, Joel Campbell, Associate Editor of the Deseret News, sent a request to the Utah State Tax Commission (the "Commission") requesting a copy of "records relating to tax liens placed on property of candidates seeking public office in the November general election." Mr. Campbell submitted this request pursuant to the Government Records Access Management Act ("GRAMA"). The Commission denied the request because the information Mr. Campbell sought was classified as private pursuant to GRAMA, and because the Commission believes Utah Code Ann. 59-1-403 forbids Tax Commission employees from releasing any tax return information "under most circumstances, including this one."

2. On September 14, 2000, Mr. Campbell appealed the denial to Rodney G. Marrelli, Executive Director of the Commission.

3. Mr. Marrelli denied the request on September 26, 2000.

4. On October 18, 2000, Mr. Campbell appealed that denial to the State Records Committee.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that "all records are public unless otherwise expressly provided by statute." Utah Code Ann. 63-2-201(2). GRAMA further provides that "[t]he disclosure of records to which access is governed or limited pursuant to . . . another state statute, a federal statute . . . is governed by the specific provisions of that statute . . . ." Utah Code Ann. 63-2-201(6). Utah Code Ann. 59-1-403 states:

Any tax commissioner, agent, clerk or other officer or employee of the Commission or any representative, agent, clerk, or other officer or employee of any county, city or town may not divulge or make known in any manner any information gained by him from any return filed with the Commission. The officials charged with custody of such returns are not required to produce any of them or evidence of anything contained in them in any action or proceedings in any court except:

(a) In accordance with judicial order;

(b) On behalf of the Commission in any action or proceeding under this title or other law under which persons are required to file returns with the Commission;

(c) On behalf of the Commission in any action or proceeding to which the Commission is a party; and

(d) On behalf of any party to any action or proceeding under this title when the report or fax shown thereby are directly involved in such action or proceeding. In any event, the court may require the production of, and may admit in evidence, any portion of reports or of the facts shown by them, as are specifically pertinent to the action or proceeding.

Id. (emphasis added). None of the criteria necessary for release of the tax information set forth in 59-1-403 are present in this situation. Tax information giving rise to a lien comes from tax returns and is therefore directly prohibited from disclosure. See Utah Code Ann. 59-1-403. Therefore, the information requested by Mr. Campbell may not be released by the Commission.

2. Mr. Campbell argues that because the information the Commission has is similar to information which becomes a public record at the courts, the Tax Commission's records should be disclosed. This argument is without merit. A tax lien is not a public record until warrant information has been filed in a district court. Once it is filed, it is the district court's information and that is the place to obtain it.

ORDER

WHEREFORE, IT IS ORDERED THAT, under the current statutory scheme, the Utah State Tax Commission was correct in its determination that it cannot disclose the requested information. The Tax Commission must follow the mandates set forth by the Legislature in Utah Code Ann. 59-1-403. The decision of the Utah State Tax Commission to deny access to the requested information is affirmed.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the district court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and by Utah Code Ann. 63-2-404 and 63-2-502(7) (2000). The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

Entered this 4th day of December, 2000.

BY THE STATE RECORDS COMMITTEE

Betsy L. Ross, Chairperson
State Records Committee