State Records Committee Appeal 06-04

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

ROBERT S. TREFF, Petitioner, vs.
UTAH STATE TAX COMMISSION, Respondent.

DECISION AND ORDER
Case No. 06-04

STATEMENT OF THE CASE

On or about April 15, 2006, Mr. Treff requested the Utah State Tax Commission to provide him with a copy of the 2004 and 2005 state tax returns filed by Mormons for Equality and Social Justice. Mr. Treff contends that this is a non-profit organization like other organizations for which he has requested and received state income tax returns from the Utah State Tax Commission.

The Utah State Tax Commission denied Mr. Treff's request and appeal of the request upon the basis of Utah Code 59-1-403, which prohibits the disclosure of state tax returns except under exceptions that do not apply to Mr. Treff's request. The Tax Commission relies upon the provision in Utah's Government Records Access and Management Act (GRAMA), Utah Code 63-2-101 to -1001, which states records are not public if access is restricted pursuant to another state statute. Utah Code 63-2-201(3)(b). In addition, the Tax Commission stated that as a non-profit corporation, Mormons for Equality and Social Justice are exempt from filing Utah corporation tax returns and therefore the record would not exist.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that a "record is public unless otherwise expressly provided by statute." Utah Code 63-2-201(2). Records that are not public are designated as either "private," "protected," or "controlled." Utah Code 63-2-302, -303 and -304. In addition, and the determining factor in this case, is Utah Code 63-2-201(3)(b) that states records are not public if it is "a record to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, . . . ."

2. Utah Code 59-1-403 expressly prohibits the Tax Commission from disclosing the records Mr. Treff requests.

3. Mr. Treff did not corroborate his claim that the Tax Commission has in other instances provided state tax returns for other organizations similar to Mormons for Equality and Social Justice. The Tax Commission's records officer denied providing the tax returns that Mr. Treff claimed he received. In any event, a breach of a duty cannot justify the State Records Committee ordering a second subsequent breach of the same duty.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Robert S. Treff is denied as set forth above.

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 Utah Code 63-2-404. 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 19th day of July, 2006.

BY THE STATE RECORDS COMMITTEE

Patricia Smith-Mansfield, Chairperson
State Records Committee