FOI Advisory Council Opinion AO-27-01

May 31, 2001

Ms. RoseMarie Dorer
Fairfax, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mail of April 2, 2001, and your phone conversation of April 23, 2001.

Dear Ms. Dorer:

You have asked whether the Commissioner of the Revenue ("the Commissioner") may provide the legal name of a business to a member of the public under the Virginia Freedom of Information Act (FOIA). You indicate that you asked your local Commissioner for this information concerning a particular business. You were told that all information maintained by the Commissioner was confidential. You ask if the Code of Virginia declares this information to be open to the public.

Subsection A of § 2.1-342 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. As a result, one generally does not need to locate a citation in the Code that declares specific records to be open in order to access those records. Instead, unless a record is specifically exempted from FOIA, it is presumed open.

Subdivision A. 2. of § 2.1-342.01 exempts [s]tate income, business, and estate tax returns, personal property tax returns, scholastic and confidential records held pursuant to § 58.1-3. Subsection A of § 58.1-3, in turn, requires that state and local tax or revenue officers keep confidential information acquired in the performance of his duties with respect to the transactions, property, income or business of any person, firm or corporation. However, subsection B of § 58.1-3 helps to clarify the intent of this prohibition, and states that the section should not be construed to prohibit a local tax official from disclosing whether a person, firm or corporation is licensed to do business in that locality and divulging, upon written request, the name and address of any person, firm or corporation transacting business under a fictitious name. Upon analysis of this provision, the Attorney General of Virginia has opined that subsection B would also allow a locality to disclose the type of business licensed and its phone number.[fn1] The Attorney General has further opined that the prohibition in subsection A only embraces financial information...which may be reasonably necessary to permit the commissioner of the revenue to make a proper determination of the amount of tax due and owing. Any other information held by the Commissioner that is not descriptive of the business, property, finances or transactions of a taxpayer would not be subject to the exemption, and would be open for public inspection.[fn2]

In conclusion, while many of the records maintained by the Commissioner of Revenue likely fall under the exemption set forth at subsection A of § 58.1-3, there is no blanket exemption prohibiting access to any document maintained in that office. Furthermore, the Commissioner is required by law to provide you with the legal name and address of any business in the locality upon written request.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1982-83 Op. Atty. Gen. Va. 727.

2. 1981-82 Op. Atty. Gen. Va. 377a. See also Virginia Freedom of Information Advisory Council AO-11 (2001).