The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
Docket No. AP-07r47 I ~ , ...
;1/;v1- K'E/f/- jl/d ~/dt707
LISA T. PTAK, f (
Appellant
v. DECISION AND ORDER
STATE OF MAINE and BUREAU DONALD l Gil r.,,.,,.,~.-.,,",:
OF MAINE REVENUE SERVICES, LAWIY, ,,'
Appellees JAN 2 4 2008
On July 3, 2007 appellant requested that Maine Revenue Services (MRS),
pursuant to Maine's Freedom of Access Act (FOAA), disclose two types of documents
related to calendar year 2007. (Joint Stip. «£: 3; Ex. 1); 1 M.R.S.A. § 401, et seq. Appellant
requested disclosure of (1) all annual, detailed computerized audit plans for calendar
year 2007 prepared by individual revenue agents at the request of management (Audit
Plans); and (2) all calendar year 2007 audit notification letters sent by revenue agents
(Audit Letters). (Joint Stip. «£: 3,)1
Audit Letters document MRS's decisions to commence an audit of a taxpayer,
which almost always occurs after MRS has "received, reviewed and/or discussed
various information related to a taxpayer, including state and federal tax returns,
and/ or other information provided to MRS pursuant to Title 36." (Joint Stip. «£: 10.)
Audit letters reveal "the name and address of the taxpayer subject to impending Audit,
who will perform the Audit, the type of taxes covered by the Audit, and the period
under the Audit. Audit Letters "may also indicate when the Audit will occur, or
1 No Audit Plans were requested by MRS management or prepared by MRS field auditors or any other
MRS employees in 2007. The appellant no longer seeks Audit Plans. (Joint Stip. <j[ 8.)
possibly include sales tax registration numbers and/or employee identification
numbers ("EINs") depending on the type of Audit at issue." Id.
MRS denied the requests by letter on July 10, 2007 and determined that the
requested documents are confidential according to the Confidentiality of Tax Records
Law and may not be disclosed under FOAA. See 36 M.R.S.A. § 191; (Joint Stip. <jf 7; Ex.
2.) The parties filed a stipulated record.
This appeal is brought pursuant to 1 M.R.S.A. § 409, which provides:
If any body or agency or official, who has custody or control of any public
record, shall refuse permission to so inspect or copy or abstract a public
record, this denial shall be made by the body or agency or official in
writing, stating the reason for the denial, within 5 working days of the
request for inspection by any person. Any person aggrieved by denial
may appeal therefrom, within 5 working days of the receipt of the written
notice denial, to any Superior Court within the State. If a court, after a
trial de novo, determines such denial was not for just and proper cause, it
shall enter an order for disclosure. Appeals shall be privileged in respect
to their assignment for trial over all other actions except writs of habeas
corpus and actions brought by the State against individuals.
The burden to establish "just and proper cause" for its denial of the FOAA disclosure
request is on MRS. Town of Burlington v. Hosp. Admin. Dist. No. 1, 2001 ME 59, <jf 13,
769 A.2d 857, 861.
The audit letters fit the general definition of "public records" in 1 M.R.S.A. §
402(3). Section 402(3)(A) exempts "Records that have been designated confidential by
statute." The issue is whether 36 M.R.S.A. § 191(1) exempts the audit letters from the
definition as "public records" for purposes of FOAA. Section 191 provides:
It is unlawful for any public official or any employee or agent of the
bureau to inspect willfully any return or examine information contained
on any return, for any purpose other than the conduct of official duties.
Except as otherwise provided by law, it is unlawful for any person who,
pursuant to this Title, has been permitted to receive or view any portion of
the original or a copy of any report, return or other information provided
pursuant to this Title to divulge or make known in any manner any
information set forth in any of those documents or obtained from
examination or inspection under this Title of the premises or property of
2
any taxpayer. This prohibition applies to both state tax information and
federal tax information filed as part of a state tax return.
Section 191 includes a series of specific exemptions from this prohibition. 36
M.R.S.A. § 191(2). Violation of section 191 is a class E crime. 36 M.R.S.A. § 191(4).
This court reviews de novo "[t]he interpretation of FOAA's requirements and
exemptions." Citizen's Communications Co. v. Dep't of the Attorney General, 2007 ME
114, <]I 9, 931 A.2d 503, 505. FOAA is to be liberally construed to allow free and open
inspection of public documents by the public. 1 M.R.S.A. § 401. The "corollary to such
liberal construction of the Act is necessarily a strict construction of any exceptions to the
required public disclosure." Moffett v. Portland, 400 A.2d 340, 348 (Me. 1979).
The appellant argues that the word "provided" means to "supply or make
available"2 and the "report, return or other information" should be read to include only
that information that is supplied or made available to MRS from the taxpayer. 3 Because
the Audit Letter itself is not provided to MRS from the taxpayer in their return, she
argues that the Audit Letter should be disclosed. This interpretation fails to recognize
§191's focus on "information" rather than the document itself.
Additionally, she argues that this court should apply the principle of ejusdem
generis, "[w]here general words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words." New Orleans Tanker v. Department of
2 MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1101 (11 th ed. 2004).
3 The appellant relies on two cases from other jurisdictions, which can be distinguished. A Connecticut
court permitted the disclosure of sales tax delinquent lists because a statute prohibiting the disclosure of
"income, profits, losses or expenditures set forth in any return" did not apply to "the existence and extent
of any tax delinquency ..." State of Connecticut v. Freedom of Information Commission, 441 A.2d 53, 55
(Conn. 1981). The Connecticut statute did not preclude disclosure of names in the list because it did not
prohibit disclosure of "any information" in the returns, unlike 36 M.R.S.A. § 191(1). Id.
In a Texas case, the information sought was parallel to that involved in this case. A & T Consultants,
Inc. v. Sharp. 904 S.W.2d 668,678 (Tex. 1995). The Texas Comptroller did not, however, argue that names
and addresses and other identifying information were confidential. Id. at 676.
3
Transportation, 1999 ME 67, 1 7, 728 A.2d 673, 675 (quotation omitted). Thus, she
argues that '''other information' in Section 191(1) refers to other documents similar to
tax returns and tax reports provided to MRS pursuant to Title 36." (Appellant Br. at 6.)
When a statute is unambiguous, it is interpreted according to its plain language.
Cobb v. Board of Counseling Professionals Licensure, 2006 NIB 48, 113, 896 A.2d 271,
275. The plain language of section 191(1) makes clear that all taxpayer-related
information is confidential. The broad prohibition in section 191(1) applies to "any
person who, pursuant to this Title, has been permitted to receive or view any portion of
the original or a copy of any report, return or other information provided pursuant to
this Title..." 36 M.R.S.A. § 191(1) (emphasis added); see 36 M.R.S.A. § 112.
The information sought is not specifically exempted from the prohibition. 36
M.R.S.A. § 191(2); see Musk v. Nelson, 647 A.2d 1198, 1201-02 (Me. 1994); see also
Darling's v. Ford Motor Co., 2003 ME 21, 1 7, 825 A.2d 344, 346 (interpretation of statute
requires examination of plain meaning of language and consideration of language in
context of whole statutory scheme). The precise wording of the exemptions and the
entities that may receive information support the conclusion that Audit Letters are not
public records. 36 M.R.S.A. § 191(2)
MRS's interpretation of section 191 is also supported by the legislative history.
(Appellees' Br., Ex. B.) That history incorporates federal requirements for confidentiality
for federal returns and federal return information. Id.; 26 U.s.C.S. § 6013(b)(1) & (2).
The entry is
Audit Letters have been designated nfidential by 36 M.R.S.A. § 191(1),
are not public records, and may not e d'sclosed to the A
Date: November 27,2007
ancy Mills
Justice, Superior Court
4
Date Filed 7118/07 Kennebec Docket No. AP07-47
County
Action Appeal from Denial of Access
vs. ~f-",f" .. nf' M<>ine & Bureau of Revenue Service,
Plaintiff's Attorney Defendant's Attorney
Sigmund D. Schutz, Esq. Scott W. Boak, AAG
Jonathan S. Piper, Esq. 6 State House Station
One City Center Augusta Maine 04333-0006
P.O. Box 9546
Portland, Maine 04112-9546
Date of
Entry
7/18/07 Complaint/Appeal from Unlawful Denial of Access to Public Records Under
the Freedom of Access Act, filed. s/Schutz, Esq.
Motion for Scheduling Order on Appeal from Denial of Access to Public
Records, filed. s/Schutz, Esq.
Proposed Scheduling Order, filed.
Request for Hearing, filed. s/Schutz, Esq.
8/6/07 Letter entering appearance, ifled. a/Boak, AAG
Service' made by' cert)i.fied:mad.l on 7/30/07 upon Maine Revenue Services
Service made by certified mail on 7/30/07 upon Atty. General
Letter requesting a telephonic conference, filed. s/Schutz, Esq.
Proposed Order, filed.
8/8/07 Copy of letter from Atty. Schutz to counsel concerning Motion For Scheduling
Order. s/Schutz, Esq. Filed 8/3/07.
8/9/07 Letter entering appearance, filed. s/Boak, AAG (8/3/07)
8/13/07 Letter opposing proposed Scheduling Order, filed 8/6/07. s/Boak, AAG
8/14/07 8/9/2007: Scheduling Order parties shall submit to the court a stipulated
record not later than Wednesday August 24,2007.s/ Judge Studstrip
Copies mailed to all parties
8/15/07 Letter requesting telephonic scheduling conference, proposed Scheduling
Order, filed. s/Schutz, Esq.
8/17/07 Letter objecting to Petitioner's second revised Scheduling Order, filed
8/16/07. s/Boak, AAG
8/22/07 8/20/07 Hearing/Confernecer Record Held by telephone Status Conference
Court findng or rulings: The entry will be Counsel will attempt
further efforts to develope a stipulated record for appeal
purposes. Evidentiary hearing does not appear to be necessary
s/ Studstrup
8/22/07 Copies mailed to parties
Date of
Entry Docket No.
8/24/07 Proposed Order, filed.
8/28/07 8/27/07: ORDER: The deadline contained n paragraph 4 of the court's
Scheduling Order dated August 9, 2007,which relates
t the filing of a stipulated record by the parties,
is extended up through and including August 31,2007:
and All other prot ion of the Scheduling Order remain
in effect. s/Studstrup
8/28/07 Copies mailed to parties
9/7/07 Joint Stipulations, filed. s/Schutz, Esq. s/Boak, AAG Exhibits 1-3,
filed.
9/19/07 9/18/07: Plaintiff/Appellant Lisa L Ptak's Brief in Support of request inr
Public Record filed by S. Schutz Esq.
10/2/07 10/1/07: Brief of Defendants-AppelleesState of Maine and Bureau of
Revenue Services filed by S.Boak AAG
10/10/07 10/9/07: Appellant Lisa L Ptak's Reply in Support of Request for
Public Records and Requesting an expedited hearing and
decision pursuant to 1 M.R.S.A 409(1). filed by Sigmund Schutz
10/23/07 Letter requesting an expedited hearing, filed. s/Schutz, Esq.
11/27/07 DECISION AND ORDER, Mills, J.
Audit Letters have been designated confidential by 36 M.R.S.A.
§191(1), are not public records, and may not be disclosed to the
Appellant.
Copy mailed to attorneys of record.
Copy mailed to Firestone, Goss, and Garbrecht Library.