January 20, 1995



Mr. Michael D. Diederich, Jr.
Attorney at Law
3 Sherwood Farms Court
Stony Point, NY 10980

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

Dear Mr. Diederich:

I have received your letter of December 7 and the correspondence between yourself and Assemblywoman Calhoun. Assemblywoman Calhoun suggested that I may be able to assist you concerning a denial of a request directed to the Department of Taxation and Finance.

You wrote that "all [you] request to know is whether the Tax Department has any records pertaining to an individual for a particular tax year (e.g., a tax return)", and you specified that you "do not wish to know what is in the record." As required by §89(4) of the Freedom of Information Law, the Department forwarded your appeal and its determination to this office. The determination sustained the initial denial on the ground that the records are specifically exempted from disclosure pursuant to §697(e) of the Tax Law and, therefore, §87(2)(a) of the Freedom of Information Law, and on the ground that disclosure would constitute an unwarranted invasion of personal privacy under §§87(2)(b) and 89(2) of the Freedom of Information Law.

In this regard, when the Freedom of Information Law is the governing statute with respect to a request for a record, I believe that an agency can respond to request in essentially one of three ways: by granting access to the record, denying access to the record, or by asserting that the agency does not maintain the record. However, in this instance, the provisions of the Tax Law appear to be most significant.

Specifically, §697(e), entitled "Secrecy requirement and penalties for violation" states in paragraph (1) 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 commissioner, any officer or employee of the department of taxation and finance...or any person who, pursuant to this section, is permitted to inspect any report or return, or to whom a copy, an abstract or a portion of any report or return is furnished, to divulge or make known in any manner the amount of income or any particular set forth or disclosed in any report or return required under this article..."

Similarly, paragraph (2) states that:

"The officers charged with the custody of such reports and returns shall not be required to produce any of them or evidence of anything contained in them in any action or proceeding in any court, except on behalf of the tax commission in an action or proceeding under the provisions of this chapter or in any other action or proceeding involving the collection of a tax due under this chapter to which the state or the tax commission is a party or a claimant, or on behalf of any party to any action or proceeding under the provisions of this article when the reports, returns or facts shown thereby are directly involved in such action or proceeding, in any of which events the court may require the production of, and may admit in evidence, so much of said reports, returns or of the facts shown thereby, as are pertinent to the action or proceeding and no more."

As I interpret the provisions quoted above, it is clear that the Department cannot ordinarily disclose any information contained in a report or return, including an individual's name. In addition, in responding to a request for records regarding a named individual, it would appear that a denial of access to record, i.e., an inferential admission that a such record exists, would involve a disclosure of information prohibited by §697(e).

It might be contended that the Department could respond to a request by indicating that a record sought does not exist. Nevertheless, since the Department can neither grant access to a report or return nor confirm the existence of such a record by denying access to it, the kind of response that you seek would likely defeat the purpose of the secrecy requirements imposed by §697(e). Consequently, the Department's action appears to be appropriate.

I am aware of the decision rendered in Kooi v. Chu, 129 AD 2d 393 (1987). Kooi did not involve a request for a record by member of the public, but rather the propriety of disclosing a failure to file by certain employees of the Department by one unit of the Department to another that was created to investigate employee misconduct. From my perspective, the internal disclosure of the absence of a return within the Department could not be equated with the disclosure that you seek.

I hope that I have been of some assistance.



Robert J. Freeman
Executive Director


cc: Hon. Nancy Calhoun
Philip Hawver
Larry Stevens