Attorney General's Opinion 1993 #221

TAXATION: GENERAL (SECRECY OF INFORMATION) REAL PROPERTY TAX.

ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Freedom of Information Act does not require tax officials to reveal information about person's transactions, property, income or business, except when such information required to be entered on local land book or personal property book; information appearing on land book forms containing assessed values of minerals and mineral lands, both those under development and those not under development, subject to public disclosure. Detailed, confidential information furnished by taxpayers from which tax officials determine fair market value of mineral lands and subsurface minerals may not be disclosed, even though such fair market value assessments shown on land book or personal property book. No requirement for commissioner of revenue to reveal to public methodology used in determining fair market value for each particular property; information is available to taxpayer to whose property it relates. Commissioner may not disclose information furnished by mining companies or other owners of subsurface minerals or mineral lands concerning location and extent of minerals on respective properties, except that information commissioner is required to enter on county's land book and assessment rolls. Maps revealing location and extent of such mineral deposits in greater detail than shown on land book also confidential; may be disclosed after confidential information removed.

June 21, 1993

The Honorable Jimmy B. Mullins
Commissioner of the Revenue for Dickenson County

1993 221

You ask whether §58.1-3 of the Code of Virginia requires you to maintain the confidentiality of information that your office receives from property owners about the presence of coal or other mineral reserves on real property.

I. Facts

As part of a general reassessment of real property in Dickenson County, your office will appraise mineral lands and subsurface minerals by using a mapping system that will show the location of mineral reserves and the extent to which those minerals have been depleted. The reassessment will rely both on public records and on private information furnished by the owners of the mineral resources. You have indicated that the private information in question consists of estimates of reserves of coal and other minerals and their location and depth on various properties, compiled by mining companies from their own geological surveys and other data. You ask whether, upon completion of the reassessment, the maps and the data on which they are based will be subject to public disclosure.

II. Applicable Statutes

The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the FOIA), establishes a general rule that all official records are open to inspection by any citizen of the Commonwealth, [e]xcept as otherwise specifically provided by law. Section 2.1-342(A).

Section 58.1-3 provides:

A. Except in accordance with proper judicial order or as otherwise provided by law, the commissioner of the revenue shall not divulge any information acquired by him in the performance of his duties with respect to the transactions, property income or business of any person . The provisions of this subsection shall not be applicable, however, to:

1. Matters required by law to be entered on any public assessment roll or book;

....

4. The sales price, date of construction, physical dimensions or characteristics of real property, or to any information required for building permits.

Section 58.1-3286 directs the commissioner of the revenue to "specially and separately assess at the fair market value all mineral lands and the improvements thereon" and to "enter the same on the land books . . . separately from other lands." Section 58.1-3286 also states that the value of the surface of the land and the value of the subsurface minerals must be ascertained and stated separately on the land books.

Section 58.1-3301(A) requires "[t]he Department of Taxation [to] prescribe the form of the land book to be used by the commissioner of the revenue."1

Section 58.1-3331 provides, in part:

A. All property appraisal cards or sheets within the custody of a county, city or town assessing officer, except those cards or sheets containing information made confidential by § 58.1-3, shall be open for inspection, after the notice of reassessment is mailed as provided in § 58.1-3330. . . .

B. Any taxpayer . . . whose real property has been assessed for taxation shall, upon request, be allowed to examine the working papers used by any such assessing official in arriving at the appraised and assessed value of such person's land and any improvements thereon.

Section 58.1-3332 provides:

Each county, city or town assessing officer shall maintain current property appraisal cards or sheets for all parcels of real estate assessed and assessable by him. Any such assessing officer who maintains such property appraisal cards or sheets shall include thereon the appraised value of the property and improvements, if any, and the calculations and methodology used in determining the assessed value of such property and improvements.

III. Assessments of Minerals and Mineral Lands Shown on Land Book Forms Are Subject to Public Disclosure

Prior opinions of this Office conclude that the FOIA does not require tax officials to reveal information whose disclosure is prohibited by §58.1-3. See Att'y Gen. Ann. Rep.: 1992 at 157, 159; 1989 at 304, 305. Section 58.1-3(A) establishes a broad prohibition against a tax official's divulging information acquired by him respecting the transactions, property income or business of any person. Information required by law to be entered on a local land book or personal property book is specifically exempt from that general prohibition. Section 58.1-3(A)(1). See Att'y Gen. Ann. Rep.: 1992 at 173, 175 (disclosure of information in land book pertaining to tax-exempt real property not prohibited by §58.1-3); 1987-1988 at 11, 13 (social security numbers protected from disclosure under §58.1-3 and not to be included on land book); 1984-1985 at 429, 430 (information in records regarding rehabilitated property should not be disclosed unless otherwise matter of public record).

Section 58.1-3286 separates mineral lands into two categories of property, the surface property and the subsurface minerals, each of which must be appraised and assessed separately. See 1992 Att'y Gen. Ann. Rep. 178, 180. The land book will be comprised of pages for minerals and mineral lands, both those under development and those not under development, listed on the forms prescribed by the Department of Taxation under §58.1-3301(A). See infra note 1. Those forms contain columns for the name and address of each owner, a description of the parcel or tract of land involved, the acreage and the assessed values of coal, iron, other minerals or mineral waters, gas or oil on each property. Under the plain language of §58.1-3(A)(1), therefore, the assessed values and other information contained on those land book forms for each parcel will be subject to public disclosure.

IV. Confidential Information Acquired and Used by Commissioner of Revenue in Determining Fair Market Value Is Not Subject to Disclosure

Other prior opinions of this Office, however, conclude that §58.1-3 does not permit the public disclosure of detailed information furnished by taxpayers, from which tax officials make assessments, despite the fact that the assessments themselves are shown on a land book or personal property book. 85-86 Va. AG 312, 313 (type of personal property owned by taxpayer is not required to be recorded in personal property book and thus is subject to secrecy provisions of § 58.1-3); 84-85 Va. AG, supra Pt. III (information about rehabilitated properties submitted to qualify for partial tax exemption is confidential under § 58.1-3, except to extent shown on land book); 81-82 Va. AG 380, 381 (itemized listing shown on personal property tax return or tax bill, but not on personal property book, not to be disclosed under former § 58-46).

Although the land book must contain the fair market value of mineral lands and subsurface minerals, there is no requirement that one be able to ascertain from the land book how the fair market value of each particular property was determined. Accordingly, information acquired by the commissioner regarding the transactions, property income or business of the owner of the property and used by the commissioner to arrive at the fair market value of the property does not constitute a matter required by law to be entered on any public assessment roll or book. Section 58.1-3 (A).

This conclusion is consistent with §§58.1-3331 and 58.1-3332. Section 58.1-3332 requires that the appraisal cards maintained by the assessing officer are to include the appraised value of the property (the fair market value of the property), and the calculations and methodology used in determining the assessed value (the application of the tax rate to the fair market value of the property). The statute does not require that the appraisal cards include the information on which the commissioner relied in determining the appraised value of the property. While appraisal cards are open for public inspection,§ 58.1-3331(A) expressly excludes from disclosure information made confidential by §58.1-3. Thus, to the extent an appraisal card contains information acquired by the commissioner regarding the transactions, property income or business of the owner of the property, that information is not subject to disclosure under 58.1- 3331(A). Section 58.1-3(A). See Att'y Gen. Ann. Rep.: 1986-1987 at 283, 285; 1981-1982 at 372 (both opinions concluding that information on real property appraisal cards protected under §58.1-3 to be expunged before disclosure).

In fact, under §58.1-3331(B), information used by the commissioner in arriving at the appraised value of each property, which in this case would include the information provided by the mining companies, is available only to the taxpayer to whose property that information relates. See 1981-1982 Att'y Gen. Ann. Rep., supra (citing former §58-792.02(B)).

Unlike real property in general, subsurface mineral property dimensions or characteristics cannot be discerned from a physical examination of the property by the assessing officer. It may not be possible, therefore, for the commissioner accurately to determine the fair market value of mineral property without information from the owner regarding the property or the owner's transactions, income or business related to the property.2 See 1972-1973 Att'y Gen. Ann. Rep. 445, 446 (authorizing locality to impose severance tax based on difficulty of determining value of mineral lands). Section 58.1-3 allows a taxpayer to furnish the commissioner such information without subjecting it to public disclosure.

In my opinion, therefore, §58.1-3 obligates you not to disclose any information furnished by mining companies or other owners of subsurface minerals or mineral lands concerning the location and extent of the minerals on their respective properties, except such parts of that information as you are required to reflect on your county's land book and assessment rolls. If your mapping system produces maps that reflect the location and extent of such mineral deposits in greater detail than is shown on the land book, those maps also are confidential under §58.1-3 and may not be disclosed unless the confidential information is removed.3

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Footnotes:

1. Under the authority in §58.1-3301(A), the Department of Taxation has prescribed forms that have spaces designated for listing basic information concerning mineral lands and minerals, including the name and address of each owner, a description of each property, the values of the land and of the minerals, and the amount of tax due. See Dep't of Tax'n Reassessment Land Sheet No. 3; Local Land Sheet Nos. 4 & 7 (forms used list assessments of persons who own land or both land and minerals); Reassessment Land Sheet No. 5; Local Land Sheet No. 10 (forms used to list assessments of persons owning minerals, etc., only).

2. The commissioner of the revenue has the authority in assessing taxes to summon taxpayers to appear before him to answer questions regarding the tax liability of any identified taxpayer. Section 58.1-3110 (power to summon taxpayer); §58.1-3111 (penalty for refusing to provide commissioner with tax liability information). But see Att'y Gen. Ann. Rep.: 1991 at 281, 282 & n.1 (outside assessor does not have authority given commissioner in 58.1-3110); 1985-1986 at 265 (commissioner's power to summon limited to persons within commissioner's jurisdiction).

3. This conclusion is consistent also with §45.1-386 which authorizes the Division of Mineral Resources to collect and disseminate information regarding the mineral resources of the Commonwealth, but §45.1-385 prohibits the use or disclosure of proprietary information or statistics gathered from any source for any purpose or purposes other than those of [Chapter 25 of Title 45.1], except with the express written consent of the source of such information or statistics.