March 29, 2005


FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.


I have received your letter in which you asked "whether tax returns submitted by a specific tax preparer could be obtained under FOIL." You indicated that "[a]ll personal and financial information in the returns could be redacted."

From my perspective, the Department of Taxation and Finance is prohibited from disclosing any portion of a return or report submitted by a taxpayer to the public.

As a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.
When that statute governs, an agency is required to review records sought in their entirety to determine which portions, if any, may justifiably be withheld. In this instance, however, I believe that a different statute governs and removes the records of your interest from the coverage of the Freedom of Information Law.

Pertinent is the initial ground for denial of access, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §1146 of the Tax Law, which in subdivision (a) states in relevant part that:

"Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful for the tax commission, any tax commissioner, any officer or employee of the department of taxation and finance, any person engaged or retained by such department on an independent contract basis, or any person who in any manner may acquire knowledge of the contents of a return or report filed with the tax commission pursuant to this article, to divulge or make known in any manner any particulars set forth or disclosed in any such return or report."

In short, the provision quoted above in my view forbids the Department of Taxation and Finance from disclosing any portion of a return to the public, absent a court order. I note, too, that the Court of Appeals, the state’s highest court, has held that "the statutory authority to delete identifying details as a means to remove records from what would otherwise be an exception to disclosure mandated by the freedom of information law extends only to records whose disclosure without deletion would constitute an unwarranted invasion of personal privacy, and does not extend to records excepted in consequences of specific exemption from disclosure by state or federal statute" [Short v. Board of Managers, 57 NY2d 399, 401 (1982)].

Lastly, while I am not an expert regarding the federal Freedom of Information Act in relation to the Internal Revenue Code, I believe the outcome of such a request made to a federal agency would be similar to that suggested above under New York law.

I hope that I have been of assistance.