Attorney General's Opinion

Attorney General, Richard Blumenthal

October 18, 2005

Honorable James A. Amman

Speaker of the House

Connecticut General Assembly

Legislative Office Building

Hartford, CT 06106-1591

Honorable Christopher G. Donovan

House Majority Leader

Connecticut General Assembly

Legislative Office Building

Hartford, CT 06106-1591

Dear Speaker Amman and Representative Donovan:

You have requested a formal opinion whether the Department of Revenue Services (DRS) is required to release certain tax documents and information to the Legislative Program Review and Investigations Committee (Committee) in connection with the Committee’s study of Connecticut’s tax system.  In addition, you ask, if we conclude that DRS is required to provide the Committee such documents and information, may the Committee permit access to an outside consultant with which the Committee may contract to conduct a compilation and analysis of the tax data.  We conclude that if the Committee "determines it needs" the tax return information it is requesting "to fulfill its duties" and the information requested is "required in the course of [the Committee's] duty," DRS must supply the requested tax information to the Committee.  Conn. Gen. Stat. §  2-53g(a), Conn. Gen. Stat. §  12-15(b)(1)(A). 

It is unclear what specific tax return information the Committee is seeking, or whether the information sought contains personally identifying information. If the tax information requested by the Committee contains personally identifiable or taxpayer specific information it is imperative that the Committee completely and carefully determine whether it needs and requires such tax information or whether its duties may be fulfilled without personally identifying or taxpayer specific information.  Due to the obviously sensitive nature of such information, if the Committee determines that such information is required for its work, the Committee should limit its request to the minimum necessary to enable the Committee to carry out its duties.  In regard to all tax information it may receive, "the Committee, its staff and its other authorized representatives" must strictly adhere to "[a]ny statutory requirement of confidentiality" and take all necessary steps to protect the security of the tax information it receives, including making provision for its return to DRS. Conn. Gen. Stat. §  2-53g(a).

You indicate that the Committee is conducting a study of the Connecticut tax system, including the following areas of analysis:

• Describe and analyze Connecticut’s tax structure focusing on: 1) personal income tax; 2) state sales and use tax; 3) business taxes including taxes on corporations, public service companies, insurance companies, and oil companies; 4) local property tax; 5) state excise taxes including those on cigarettes, alcohol, and motor fuels; and 6) the inheritance and estate tax.  The examination would include revenues generated by each and trends over time, and the proportion of state vs. local revenues that are used for major categories of state and local services.

• Describe and analyze who pays each of these taxes, how they are collected, the level of compliance, and the efficiency of administering the taxes.

• Describe and analyze the major exemptions and credits associated with each tax component.

You further indicate that of immediate interest to the Committee is DRS data from the personal income tax and corporate income tax filings in electronic format for the most recent completed year for independent research and analysis, and that the Co-Chairs of the Committee have requested from DRS access to and copies of tax records, data and other information so that the Committee may fulfill its duties related to the tax study.  DRS has declined to comply with the request, citing the confidentiality of return information under Conn. Gen. Stat. § 12-15.   

Committee Access to Tax Return Information

The resolution of the question of the Committee’s authority to require access to the tax information it seeks requires the interpretation and analysis of both the statute empowering the Committee to obtain information and the statute governing the confidentiality of tax return information.  In doing so, we are guided by the rules of statutory construction, and in particular the canons that the legislature is presumed to have intended a consistent body of law and that statutory provisions should be interpreted to harmonize rather than conflict with each other.  Fort Trumbull Conservancy, LLC v. Planning & Zoning Comm’n, 266 Conn. 338, 352-53 (2003).

Section 2-53g of the General Statutes provides that the Committee has the authority “to conduct program reviews and investigations to assist the General Assembly in the proper discharge of its duties,” and that in conducting such program reviews and investigations, it shall

when necessary, confer with representatives of the state departments and agencies reviewed in order to obtain full and complete information in regard to programs, other activities and operations of the state, and may request and shall be given access to and copies of, by all public officers, departments, agencies and authorities of the state and its political subdivisions, such public records, data and other information and given such assistance as the committee determines it needs to fulfill its duties.

Conn. Gen. Stat. § 2-53g(a).  Section 2-53g further provides:

Any statutory requirements of confidentiality regarding such records, data and other information, including penalties for violating such requirements, shall apply to the committee, its staff and its other authorized representatives in the same manner and to the same extent as such requirements and penalties apply to any public officer, department, agency or authority of the state or its political subdivisions.

Id.  Thus, the Committee is authorized to require of any state official or agency access to “such public records, data and other information” that the Committee determines is needed to fulfill its duties.  The Committee’s access to such records, data and information, however, is subject to any confidentiality requirements imposed by law on such records, data and information. 

Section 12-15 of the General Statutes imposes very strict confidentiality requirements on tax returns and return information.¹   No tax return or return information can be disclosed except as permitted by § 12-15, and any person who violates the confidentiality requirements of § 12-15 may be subject to a fine of not more than one thousand dollars or imprisonment of not more than one year, or both.  Conn. Gen. Stat. §§ 12-15(a), (g). 

There are specifically enumerated exceptions to the disclosure prohibition.  Of particular relevance here, DRS may disclose returns or return information to “an authorized representative of another state agency or office, upon written request by the head of such agency or office, when required in the course of duty or when there is reasonable cause to believe that any state law is being violated. . . .”  Conn. Gen. Stat. § 12-15(b)(1)(A) (emphasis added).²Disclosure under this exception requires satisfaction of two substantive conditions: (1) that the entity receiving disclosure is a “state agency or office”; and (2) that disclosure is required in the course of duty of the agency or office.  According to your September 12, 2005 letter, the Committee’s request is made in the course of its duties.  See Conn. Gen. Stat. § 2-53g.  Therefore, the principal question is whether the Committee constitutes a state agency or office within the meaning of § 12-15.

Section 12-15 does not define “state agency or office.”  In the absence of an express statutory definition, courts often look to common understanding of words found in dictionaries.  Jagger v. Mohawk Mountain Ski Area, 269 Conn. 672, 682 (2004).  However, in this instance, dictionary definitions are less than helpful.  Although the term “agency” is often understood to mean an administrative unit in the executive branch, see Webster’s 3d New Int’l Dictionary 40 (1993) (defining “agency” to mean “department or other administrative unit of government”); Random House Unabridged Dictionary 37 (2d ed. 1993) (defining “agency” as “a government bureau” or “an administrative division of government”);  the term “office” is more ambiguous.  See id. at 1344 (defining “office” as “a position of duty, trust, or authority, especially in government”); Black’s Law Dictionary 1083 (6th ed. 1990) (defining “office” as implying “an authority to exercise some portion of the sovereign power, either in making, executing, or administering the laws”).

Some guidance may be found in other legislation that defines state agency or office as a reflection of the legislature’s general understanding of those words.  For purposes of the waiver of sovereign immunity for claims against the state, “state agency” is broadly defined to include “every department, division, board, office, commission, arm, agency and institution of the state government, whatever its title or function.”  Conn. Gen. Stat. § 4-141.  The Freedom of Information Act defines “agency” as “[a]ny executive, administrative or legislative office of the state . . . including any committee of, or created by, any such office. . . .”  Conn. Gen. Stat. § 1-200(1)(A); see also Conn. Gen. Stat. § 4-250(3) (defining state agency to include executive, legislative and judicial agencies for purposes of large state contract requirements); Conn. Gen. Stat. § 1-267(9) (defining agency to include executive, legislative and judicial agencies for purposes of the Uniform Electronic Transactions Act); Conn. Gen. Stat. § 11-9b(c) (same for purposes of state publications collections).  By contrast, the Uniform Administrative Procedures Act (UAPA) defines “agency” as “each state board, commission, department or officer authorized by law to make regulations or to determine contested cases, but does not include either house or any committee of the General Assembly. . . .”  Conn. Gen. Stat. § 4-166(1); see also Conn. Gen. Stat. § 4-212(5) (limiting definition of state agency to executive department agencies for purposes of personal services agreement requirements); Conn. Gen. Stat. § 4d-1 (same for purposes of state information technology management).³ 

From these various definitions can be discerned an understanding that “state agency or office” may broadly encompass both executive and legislative units or may be limited to executive agencies only, depending on the purpose of the relevant statute.  Thus, for example, for claims against the state, state agency is defined to sweep in almost all state entities, including those in the legislative department, while for the UAPA, which establishes procedures for administrative actions of executive branch agencies, the definition is tailored to that purpose.

Here, the purposes of § 12-15 are to ensure the privacy of taxpayer-specific information while at the same time satisfying the legitimate needs of other state entities for such information.  These purposes are not furthered by restricting the meaning of state agency or office in § 12-15(b)(1)(A) to just executive agencies.  The Committee is required to comply with applicable confidentiality requirements, and the General Assembly plainly intended that the Committee have broad review and investigative authority.  See Conn. Gen. Stat. § 2-53g(a).  There is no suggestion in the language, purpose or legislative history of § 2-53g that this authority would not extend to DRS.

Section 12-15 does explicitly identify certain state entities to which disclosure may be made.  For example, disclosure may be made to the Auditors of Public Accounts (Auditors).  Conn. Gen. Stat. § 12-15(b)(2).  Because the Auditors are part of the legislative department, see Conn. Gen. Stat. § 2-89 et seq., the specific reference to the Auditors as a separate exception under § 12-15(b) arguably would support a construction of the phrase “state agency or office” as excluding a legislative committee.⁴See Gay & Lesbian Law Students Ass’n v. Board of Trustees, 236 Conn. 453, 476 (1996) (express exception creates presumption that other cases are not within exceptions).

The use of the express exceptions to preclude any other exception does not appear to be a reasonable interpretation of the legislature’s intent. First, there is also a specific disclosure provision for the Office of Policy and Management (OPM), Conn. Gen. Stat. § 12-15(b)(10), which is an office in the executive branch and plainly is a “state agency or office” within the meaning of § 12(b)(1)(A).  Conn. Gen. Stat. § 4-65a et seq.  The Auditors and OPM are both agencies or offices that have definite responsibilities that require disclosure of tax information.  See Conn. Gen. Stat. § 12-7a (disclosure of corporate tax delinquents to OPM); Conn. Gen. Stat. § 2-90 (duties of Auditor).  Thus, the specific disclosure provisions for them, rather than informing the meaning of the phrase “state agency or office,” is merely a clear statement that disclosure may be made for those purposes.  See Burke v. Fleet Nat’l Bank, 252 Conn. 1, 24 (1999) (declining to infer exclusion from specifically identified item where not supported by language or statutory purpose). 

Indeed, this analysis is strongly supported by the legislative history.   In 1982, when the General Assembly enacted an earlier version of § 12-15 providing that disclosure could be made to “other state officers,” the specific disclosure exception for the Auditors was added.  Public Act 82-67, § 1.  The Auditor exception  was the result of an amendment offered on the floor, the purpose of which was “to insure that there is no question of the intent of this” as permitting the Auditors access to tax records.  25 S. Proc., Pt. 3, at 698 (Mar. 31, 1982) (remarks of Sen. Gunther).  The sponsor of the bill opined that “other state officers” included the Auditors, but stated that he had no objection to the amendment to make it clear that disclosure could be made to the Auditors.  Id. at 697 (remarks of Sen. DiBella).  Thus, the specific exception of the Auditor cannot reasonably be said to show that the legislature intended “state agency or office” to exclude entities within the legislative branch.  The more appropriate construction of the phrase “state agency or office” includes the Committee within its intended scope.    

Finally, an interpretation of § 12-15 that precludes disclosure to the Committee would conflict with the plain intent and purpose of § 2-53g.  There is no question that the legislature intended to afford the Committee broad access to documents and information maintained by state agencies in connection with its program review and investigative duties.  There also is little doubt that this broad access extends to otherwise confidential documents and information, and that any confidentiality provisions relating to such documents and information would apply fully to the Committee and its staff.  Moreover, because § 2-53g was enacted long after § 12-15, we must assume that the legislature was fully aware of the confidential status of tax return information and that it intended that the later-enacted statute controls.  Castagno v. Wholean, 239 Conn. 336, 346 (1996); State v. Tyson, 195 Conn. 326, 331 (1985).  Thus, the purposes of both § 12-15 and § 2-53g are furthered if the Committee has access to the tax return information it determines it needs to fulfill its duties. See also Conn. Gen. Stat. § 2-46 (providing that the co-chairmen of the Committee may compel the attendance and testimony of witnesses and the production of books, papers and other documents for any program review or investigation).

In view of the foregoing, it is our opinion that the Committee may compel access to tax return information maintained by DRS.  To ensure the confidentiality and security of the information to be provided, however, it is recommended that the Committee and DRS enter into a memorandum of understanding with regard to the Committee’s access, use, storage and return of such documents and information.   While we are not aware of the specific tax information  requested by the Committee, if the Committee is requesting personally identifiable or taxpayer specific information, the Committee should completely and carefully determine that such information is needed and required by the Committee and should limit its request to the minimum necessary to enable it to carry out its duties.

      B.Authority of Committee to Disclose Tax Information to Third-Party Contractor

You have also asked whether the Committee may permit disclosure of the tax information to an outside consultant with which the Committee may contract.  You indicate that the Committee anticipates that, because of the size and volume of the records requested, it will need to engage an outside consultant to compile, organize and analyze the data for the tax study.  The Committee further anticipates that such outside consultant would be required to agree in writing to comply with the confidentiality requirements. 

The Committee has the authority to “retain, within the available appropriations, the services of consultants, technical assistants, research and other personnel necessary to assist in the conduct of program reviews and investigations.”  Conn. Gen. Stat. § 2-53g(a)(6).  It is implicit in this authority that, if the services of a consultant are necessary in connection with a program review or investigation that entails the analysis of confidential information, such information may be disclosed to the consultant.  However, the Committee has the statutory obligation to take strict measures, incorporated within contractual requirements, to ensure the confidentiality of the disclosed tax information.  Conn. Gen. Stat. § 2-53g(a)(3).

In conclusion, the Committee may require the disclosure of tax return information from DRS that the Committee determines is needed and required to fulfill its duties in connection with its program review and investigation of the tax system.  Requests for taxpayer specific or personally identifying information should be a last resort which the Committee should determine to be absolutely necessary for its work.  Should the Committee determine that such information is needed and required, it should request the minimum amount necessary to fulfill its duties.  The Committee may disclose such information to an outside consultant engaged to assist in the program review and investigation, subject to strict contractual measures to ensure confidentiality and security of the information,  including its return to DRS.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Mark F. Kohler

Assistant Attorney General

 

¹Return information is defined as:

a taxpayer's identity, the nature, source, or amount of the taxpayer's income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax collected or withheld, tax underreportings, tax overreportings, or tax payments, whether the taxpayer's return was, is being, or will be examined or subjected to other investigation or processing, or any other data received by, recorded by, prepared by, furnished to, or collected by the commissioner with respect to a return or with respect to the determination of the existence, or possible existence, of liability of any person for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense. "Return information" does not include data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. Nothing in the preceding sentence, or in any other provision of law, shall be construed to require the disclosure of standards used or to be used for the selection of returns for examination, or data used or to be used for determining such standards or the disclosure of the identity of a confidential informant, whether or not a civil or criminal tax investigation has been undertaken or completed.

Conn. Gen. Stat. § 12-15(h)(2).

² In addition, “returns and return information shall, without written request, be open to inspection by or disclosure to:  . . .  officers or employees of an agency or office in accordance with subdivision (1) . . . of subsection (b) of this section whose official duties require such inspection. . . .”  Conn. Gen. Stat. § 12-15(f).

 

³ Still other statutory definitions of state agency do not expressly address this issue.  See Conn. Gen. Stat. § 4-61hh (defining state agency as “any agency, authority, board, commission, council, department, institution or other instrumentality of the state” for purposes of state agency volunteer programs);  Conn. Gen. Stat. § 4-230(4) (similar for purposes of single and program-specific audit requirements);

⁴ Section 12-7b of the General Statutes requires disclosure of certain specified tax information to the Office of Fiscal Analysis (OFA), which is part of the legislative branch.  This statute does not support an interpretation that “state agency or office” in § 12-15(b)(1)(A) excludes legislative entities such as the Committee.  First, most of the tax information referenced in § 12-7b is not taxpayer-specific return information on which § 12-15 imposes confidentiality requirements.  Second and more importantly, § 12-7b imposes an affirmative obligation on DRS to provide the specified information on an annual or monthly basis, absent any request.  The purpose of § 12-7b is therefore quite different from that of § 12-15 and cannot provide a basis for asserting that a legislative agency or office may not request taxpayer-specific return information from DRS pursuant to § 12-15.

 

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