Finberg v. Murnane

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-485


 Charles E. Finberg                           Supreme Court

                                              On Appeal from
      v.                                      Chittenden Superior Court

 Janet Murnane and Brendan                    April Term, 1992
 Keleher, Treasurer, City of
 Burlington


 Alden T. Bryan, J.

 Charles E. Finberg of Paul, Frank & Collins, Inc., Burlington, plaintiff-
   appellant

 John L. Franco, Jr., of McNeil & Murray, Burlington, for defendants-
   appellees



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse, and Johnson, JJ.



      DOOLEY, J.   Plaintiff appeals from a decision of the Chittenden
 Superior Court denying his request under the Access to Public Records Act, 1
 V.S.A. {{ 315-320, for a list of names and addresses of taxpayers subject to
 a business gross receipts tax adopted by an ordinance of the City of
 Burlington.  We reverse.
      Plaintiff is an attorney who practices law in Burlington.  Defendant
 Brendan Keleher is the Burlington city treasurer and defendant Janet Murnane
 is the assistant city attorney.  The complaint alleges that plaintiff sought
 from the Burlington treasurer's office a list of names and addresses of
 taxpayers that are subject to a special gross receipts tax levied by the
 city.  He was handed the list, a ten page computer printout containing no
 financial information, but the list was then withdrawn.  Subsequently, he
 was asked to fill out a form making an official request for the list.  Some
 twenty days later the request was denied by a letter from defendant Murnane.
 The letter asserted that (1) plaintiff was not entitled to the list because
 the tax ordinance made the information confidential, (2) the record is
 exempted from disclosure under the public records act by { 317(b)(6) because
 it is tax return information, and (3) the record is exempted by { 317(b)(10)
 because it "would violate a person's right to privacy or produce public or
 private gain."
      Approximately one week later, plaintiff brought suit in superior court
 and filed a memorandum of law with the complaint.  The court responded by
 scheduling a status conference twelve days later.  Shortly before the status
 conference, defendants filed a responsive memorandum; they did not file an
 answer or a motion to dismiss.  Plaintiff filed a rebuttal memorandum, and
 the parties made legal arguments to the court.  On the following day, the
 court dismissed the complaint because it found the records to be excepted
 from disclosure by virtue of 1 V.S.A. { 317(b)(6).
      On appeal to this Court, plaintiff argues that the trial court was
 premature in dismissing the complaint because it relied upon facts outside
 the complaint.  Plaintiff also argues that the court was wrong on the merits
 and that he is entitled to some relief because defendants failed to respond
 within the statutory time deadlines.  Defendants respond that the decision
 was not premature and was correct on the merits and that their delay in
 responding was harmless.
      Before addressing the issues on appeal, it is helpful to examine the
 statutory scheme and the policy behind it.  The Access to Public Records Act
 (the Act) is aimed at expeditious resolution of disputes over whether a
 citizen will have access to a public record.  The custodian of the record
 has an obligation to produce it "promptly," 1 V.S.A. { 318(a), or within two
 business days certify the reasons for denial of access.  Id. { 318(a)(2).
 In unusual circumstances, the time for responding, either with disclosure or
 a claim of exception, can be extended up to ten working days.  Id. {
 318(b)(5).  Appeals are to the superior court, which determines the matter
 de novo.  Id. { 319(a).  Such appeals take precedence over other matters on
 the docket except for cases "of greater importance" and must be "expedited
 in every way."  Id. { 319(b).
      In an appeal to superior court, "the burden is on the agency to sustain
 its action."  Id. { 319(a).  The Act is to be construed liberally.  Id. {
 315.  A policy consideration on which the Act is grounded is that "the
 public interest clearly favors the right of access to public documents and
 public records," and under this policy "the exceptions listed in { 317(b)
 should be construed strictly against the custodians of the records and any
 doubts should be resolved in favor of disclosure."  Caledonian-Record
 Publishing Co. v. Walton, 154 Vt. 15, 20, 573 A.2d 296, 299 (1990).
      It is also helpful to specify what is not involved in this dispute.  It
 is undisputed that the treasurer's office of the City of Burlington is a
 public agency so that its records are subject to the Act.  See 1 V.S.A. {
 317(a).  It is also undisputed that the list of names and addresses is an
 existing public record subject to disclosure unless it fits within one of
 the exceptions itemized in the Act.  See id. { 317(b); compare Welch v.
 Seery, 138 Vt. 126, 129, 411 A.2d 1351, 1353 (1980) (Act does not require
 custodian to create record from information held by it).
      With that background in mind, we examine the disclosure exception on
 which the court relied.  The exception specifies that the following do not
 have to be disclosed:
         (6) a tax return and related documents, correspondence
         and certain types of substantiating forms which include
         the same type of information as in the tax return itself
         filed with or maintained by the Vermont department of
         taxes or submitted by a person to any public agency in
         connection with agency business;

 1 V.S.A. { 317(b)(6).  In applying the exception to this case, the trial
 court relied on a statute making nondisclosable tax "return or return
 information" held by the Vermont Department of Taxes.  32 V.S.A. { 3102(a).
 For purposes of that statute, "return" is defined as "any tax return,
 declaration of estimated tax, license application, report or similar docu-
 ment, including attachments, schedules and transmittals, filed with the
 department of taxes."  Id. { 3102(b)(2).  "Return information" is defined to
 include a person's name and address.  Id. { 3102(b)(3). (FN1)
      The court reasoned that the exception includes documents containing
 the same type of information as a tax return.  Since the tax statute states
 that return information includes names and addresses, the court reasoned
 that the list of names and addresses at issue must be covered by {
 317(b)(6).  The court concluded, and defendants argue here, that the public
 records exception and the tax confidentiality statute should be read in pari
 materia.
      We do not find the public records exception as clear as the trial court
 concluded.  The exception applies to documents submitted by taxpayers to the
 agency and correspondence between the agency and the taxpayer.  It does not
 cover all tax information about a taxpayer.  See State v. Freedom of
 Information Commission, 441 A.2d 53, 55 (Conn. 1981) (names of tax
 delinquents not confidential).  It does not specifically cover derivative
 documents -- that is, separate documents made up by the agency from tax
 returns, related documents or correspondence.  We agree, however, that to
 some extent such derivative documents must be covered to avoid disclosure of
 information taken from the return and related documents.  Presumably,
 defendants resist disclosure of the list of names and addresses because it
 is such a derivative document.
      The main weakness in defendants' position is that the limited record
 does not disclose the source of the names and addresses.  Although they may
 have come exclusively from tax returns, the record does not disclose this.
 They could have been generated by independent investigation of businesses
 subject to the tax.  To the extent the information came from a non-
 confidential source, it is subject to disclosure even if it also came from a
 confidential source.  See Denver Publishing Co. v. Dreyfus, 520 P.2d 104,
 108 (Colo. 1974).
      We are also not persuaded that we should read the Access to Public
 Records Act exception as broadly as the specific exception for tax return
 information held by the Vermont Commissioner of Taxes.  As set forth above,
 we must construe the exceptions to the Act narrowly to implement the strong
 policy in favor of disclosure.  Defendants' in-pari-materia construction
 undermines this policy.  The normal rules of statutory construction may be
 inapplicable where "they do not further a statute's remedial purposes,"
 Clymer v. Webster, 156 Vt. 614, 625, 596 A.2d 905, 912 (1991), or lead to a
 result at variance with statutory intent.  See Hill v. Conway, 143 Vt. 91,
 93, 463 A.2d 232, 233 (1983).
       The exception to the Act listed in 1 V.S.A. { 317(b)(6) and the state
 tax return exception, 32 V.S.A. { 3102(a), are related only because each
 deals with taxes.  In this case, however, they are applicable to different
 taxing authorities and different taxing schemes.  They are best harmonized
 by viewing the Act exception as the minimum protection for tax records
 applicable to all taxing authorities and types of taxes, and viewing the
 state tax disclosure exception as a broader confidentiality policy
 applicable only to the state tax information the Legislature has specified.
 The Act excepts from disclosure "records which by law are designated
 confidential or by a similar term."  1 V.S.A. { 317(b)(1).  This is a
 recognition that in specific instances the Legislature may choose to go
 beyond the general confidentiality policies contained in the public records
 exceptions.
      The main difference between the Access to Public Records Act exception
 and the state tax exception is that the tax exception, unlike that in the
 Act, protects tax return information and broadly defines it to include the
 name and address of the taxpayer.  Absent such a specific provision, we do
 not believe the Act's exception is broad enough to cover the name and
 address of the taxpayer.  See Opinion of the Justices, 303 A.2d 752, 756
 (N.H. 1973) (exception is against disclosure of tax information "rather than
 disclosure of the fact such records or files exist").  There is nothing
 personal or private about the fact that a person or business is subject to
 the tax; in most cases, that fact is obvious from the nature of the
 business.  See 1 V.S.A. { 315 (Act protects "right to privacy in their
 personal and economic pursuits"); see also Warden v. Bennett, 340 So. 2d 977, 979 (Fla. Ct. App. 1976) (employee's privacy interest in address is
 "minimal"); Webb v. City of Shreveport, 371 So. 2d 316, 319 (La. Ct. App.
 1979) ("we have no reasonable expectation of privacy as to our identity or
 as to where we live or work").  Consistent with the policy of liberal
 disclosure, it does not appear that { 317(b)(6) applies to the list which
 plaintiff seeks.
      Defendants offer an alternative reason why the list is not subject to
 disclosure, (FN2) based on their view that plaintiff is seeking the list in his
 capacity as a lawyer for clients who are challenging the validity of the
 tax.  They assert that he wants to use the list to solicit clients to join
 the challenge and that such a use is prohibited by { 317(b)(14), which
 excepts "records which are relevant to litigation to which the public agency
 is a party of record . . . ." (FN3) As with their first argument, the record
 fails to provide the factual basis for this claim.  In any event, the claim
 is based on the theory that plaintiff's motive disqualifies him from
 obtaining the list.  This theory is inconsistent with the basic disclosure
 provision of the Act, which gives "any person" the right to disclosure.  1
 V.S.A. { 315; see also { 316(a) ("[a]ny person may inspect or copy any
 public record").  Motive is irrelevant to plaintiff's access right.  See
 Mans v. Lebanon School Board, 290 A.2d 866, 867 (N.H. 1972); M. Farbman &
 Sons v. New York City, 464 N.E.2d 437, 439, 476 N.Y.S.2d 69, 71 (1984).
      There remains to be considered whether the procedural posture of this
 case changes the outcome.  The context for this question is peculiar because
 plaintiff attacks the lack of a factual record for decision and defendants
 argue that the parties had an adequate opportunity to make a factual record
 but failed to do so.  As noted above, defendants had the burden of showing
 that an exception applies.  They cannot discharge this burden by conclusory
 claims or pleadings.  They must make the specific factual record necessary
 to support the exception claim.  See New Haven v. Freedom of Information
 Commission, 535 A.2d 1297, 1301 (Conn. 1988); Evening News Association v.
 City of Troy, 339 N.W.2d 421, 429 (Mich. 1983).
      The only factual information defendants supplied was an affidavit of
 Janet Murnane that related to the timeliness of defendants' response.  As
 defendants point out, the Legislature has required that access to public
 records claims be resolved expeditiously, and in this case neither side
 followed up on the court's offer to accept additional information.
 Defendants never filed a motion to dismiss or defensive pleading.  In
 essence, both sides sought summary judgment, without affidavits, and based
 solely on plaintiff's complaint.  See V.R.C.P. 56(a), (b) (parties can move
 for summary judgment with or without supporting affidavits).  We cannot
 fault the trial judge for his expeditious ruling on the case.   In these
 circumstances, we do not believe it is unfair to charge defendants with the
 responsibility of making an adequate record, or reserving the right to do
 so, and ruling against them when the record does not support their claim.
      The court erred in dismissing plaintiff's complaint.  Based on the
 record it had before it, it should have enjoined defendants from withholding
 the list plaintiff requested.  1 V.S.A. { 319(a).  Because of our dispo-
 sition, we do not reach plaintiff's additional claims that disclosure is not
 prevented by the provisions of the gross receipts tax ordinance and that
 relief is warranted by defendants' failure to respond to the request within
 the time deadlines established by the Act.
      Reversed and remanded.

                                         FOR THE COURT:




                                         Associate Justice




FN1.    The statute has numerous exceptions to the nondisclosure rule, and
 one of these was the subject of debate between the parties.  32 V.S.A. {
 3102(d)(3) requires the Commissioner to disclose whether "a person is
 registered to collect Vermont income withholding, sales and use, or meals
 and rooms tax . . . . "  Plaintiff argued that the tax involved here is a
 meals and rooms tax.  Defendants disputed this.  We do not have to resolve
 this conflict, although we note that the sparse record suggests that the tax
 is administered so that those businesses that collect a meals and rooms tax
 also pay the gross receipts tax.  If this is true, it shows the information
 involved here is available from another nonconfidential source.

FN2.    Defendants also argued below that the tax ordinance made the list
 confidential and that this source of "law" was recognized by { 317(b)(1).
 They have abandoned this argument here and we do not consider it.

FN3.    Not surprisingly, this accusation was vigorously contested by
 plaintiff.  Assuming it is true, defendants are relying on a very broad
 construction of the exception to justify their denial.  Under their
 construction, "records . . . relevant to litigation" appears to apply to
 litigation not yet commenced and involve basic records about persons not
 part of the litigation.  Although we do not have to resolve the scope of
 this exception in view of our disposition, it appears that defendant's
 construction would consume the disclosure rule.