Q: We requested consultant contracts from the county office of education, but the information we received was incomplete. We’ve thought of requesting the list of consultants who received an IRS 1099 form, but we’re concerned that we would be denied the information on the grounds that it falls under the “tax” exclusion section of the PRA. Is there wording that would work? If we had the list, we could then request the contracts; however, the names are buried.
A: As you might know, under the Public Records Act, public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
The PRA exempts from disclosure “[i]Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.” Gov’t Code § 6254(i).
Also, certain tax documents are specifically exempted, including income tax returns, certain Franchise Tax Board settlements, business information acquired by the Board of Equalization, and real property ownership statements. Rev. & Taxation Code §§ 19272, 19133, 15619; Gov’t Code § 27280.
All of these exemptions apply to the tax documents themselves, whereas, from what I understand, you are seeking the names of consultants that received this particular tax form, and not the forms themselves. If this is the case, then this exemption might not apply. However, one thing to keep in mind is that the PRA is written in terms of records rather than information. So sometimes part of the challenge is to frame your request in terms of documents that are likely to contain the information you are looking for (e.g., records containing or reflecting recipients of the IRS 1099 forms from the office of education for the year xxxx).
I do not purport to know anything about tax law, but my impression is that there may be a large number of individuals and organizations who received this form in any given tax year, so you may find that the records you receive are quite voluminous, and do not necessarily identify the consultants whose contracts you seek to obtain in your follow-up request. You may want to word your request with narrow language asking for any document that the office of education might possess that contains only consultants who received the tax form during a certain year, but, in the alternative, request documents that would at least get you a list of all recipients of the tax form if the county does not have any documents that fit within the more specific request.
To the extent that you were denied copies of consultant contracts themselves in your initial request, it is not clear that any particular PRA exemption would permit the county to withhold these documents. Please be aware , though, that the Act contains a frequently invoked “catch-all” exemption, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).
This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.
Finally, with respect to timing, the agency must respond to a request for a copy of a public record within 10 days, and the time for responding may be extended for an additional 14 days in “unusual circumstances.” Gov’t Code section 6253(b)-(c).
You can find additional information regarding the Public Records Act, including sample request letters, on the FAC’s website here: https://firstamendmentcoalition.org/category/resources/access-to-records/