State Records Committee Appeal Decision 2016-47

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

SIPRUT PC, Petitioner, v.

UTAH STATE TAX COMMISSION. Respondent.

DECISION AND ORDER

Case No. 16-47

By this appeal, Petitioner, SIPRUT PC (“SIPRUT”), a law firm representing a group of individuals involved in a class action lawsuit against software provider Intuit, Inc., seeks access to records allegedly held by Respondent, the Utah State Tax Commission (“Commission”).

FACTS

In a letter transmitted by email dated April 18, 2016, Mr. John S. Marrese, an attorney with SIPRUT, made a records request to the Commission pursuant to the Government Records Access and Management Act (“GRAMA”). Mr. Marrese wrote that he was seeking Commission documents involving Intuit, Inc. (“Intuit”), Intuit’s TurboTax Tax Preparation Software (“TurboTax”), and Santa Barbara Tax Products Group, LLC (“SBTPG”) “related to cybersecurity, fraudulent or suspicious tax returns filed” with the Commission. Ms. Dolores Furniss, the Commission’s Disclosure Officer, responded on June 22, 2016, denying the request finding that: (1) The Commission could not locate any written communications with Intuit specific to the request; (2) Documents, tax returns, and/or other communications provided by the Commission to the United States Internal Revenue Service (“IRS”) or any state taxing authority related to any alleged fraudulent or suspicious tax returns are classified as private records; and (3) The Commission had no documents relating to any investigations of Intuit and/or SBTPG involving cybersecurity or the filing of fraudulent/suspicious tax returns.

Mr. Marrese on behalf of SIPRUT filed an appeal with Mr. Barry C. Conover, Executive Director of the Commission on or about July 21, 2016. In a letter dated August 2, 2016, Mr. Conover affirmed the decision of the Disclosure Officer, finding that no written communications existed and that the “tax returns that you requested are classified as ‘private’ under” GRAMA. In a letter dated August 30, 2016, Mr. Richard S. Wilson, an attorney with SIPRUT, filed an appeal with the State Records Committee (“Committee”). On November 10, 2016, a hearing was before the Committee where the parties were allowed to present their legal arguments.

After considering all written materials and the arguments by the parties, the Committee now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code § 63G-2-201(2). Records that are private, controlled, or protected under Utah Code §§ 63G-2-302, -303, -304, or 305, are not public records. Utah Code § 63G-2-201(3)(a).

2. Records and audit work papers that identify audit, collection, and operational procedures and methods used by the Commission are protected records if properly classified by the Commission and disclosure would interfere with audits or collections. Utah Code § 63G-2-305(15).

3. The following records are private if properly classified by a governmental entity: (1) Records of independent state agencies if the disclosure of the records would conflict with the fiduciary obligations of the agency; (2) Other records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy; and (3) Records provided by the United States or by a government entity outside the state that are given with the requirement that the records be managed as private records, if the providing entity states in writing that the record would not be subject to public disclosure if retained by it. Utah Code § 63G-2-302(2)(c), (d), and (e).

4. Ms. Furniss testified at the hearing that in January 2015, the Commission discovered that some fraudulent returns had been filed with the Commission electronically. Ms. Furniss stated that immediate action was taken to suspend all tax refunds until the fraudulent returns had been identified and isolated, and no written communications with Intuit and the IRS existed because all contact occurred with them either by telephone or in person. Ms. Furniss also stated that no written records were created during the investigation into the fraudulent returns.

5. After having reviewed the arguments of the parties and hearing testimony and arguments at the hearing, the Committee finds that any records responsive to SIPRUT’s records request possessed by the Commission are either protected records pursuant to Utah Code § 63G-2-305(15) or private records pursuant to Utah Code § 63G-2-302(2)(c), (d), or (e). The Committee also finds Ms. Furniss’ testimony concerning the non-existence of records related to the investigation of fraudulent tax returns by the Commission to be credible.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Petitioner, SIPRUT, PC, is DENIED.

RIGHT TO APPEAL

A party to a proceeding before the Committee may seek judicial review in District Court of a Committee's Order by filing a petition for review of the Committee Order as provided in Utah Code § 63G-2-404. Utah Code § 63G-2-403(14). A petition for judicial review of a Committee Order "shall be filed no later than 30 days" after the date of the Committee Order. Utah Code § 63G-2-404(1)(a). The petition for judicial review must be a complaint which is governed by the Utah Rules of Civil Procedure, and include the Committee as a necessary party and contain the required information listed in Subsection -404(2). Utah Code § 63G-2-404(1) & (2). The court shall make its decision de novo, but shall allow introduction of evidence presented to the Committee, determine all questions of fact and law without a jury, and decide the issue at the earliest practical opportunity. Utah Code § 63G-2-404(6). In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code § 63G-2-403(15)(c), if the Committee orders the governmental entity to produce a record and no appeal is filed, the government entity herein shall comply with the order of the Committee and shall: (1) Produce the record; and (2) File a notice of compliance with the Committee. If the governmental entity ordered to produce a record fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities. Utah Code § 63G-2-403(15)(d)(i). In imposing a civil penalty, the Committee shall consider the gravity and circumstances of the violation, including whether the failure to comply was due to neglect or was willful or intentional. Utah Code § 63G-2-403(15)(d)(ii).

Entered this 22nd day of November 2016.

BY THE STATE RECORDS COMMITTEE

_____________________________________
PATRICIA SMITH-MANSFIELD, Chairperson
State Records Committee