State Legal Opinions Are Public Record By Cochran Douglas on September 12, 2007

In a unanimous opinion, the Supreme Court of Arkansas tossed out an earlier circuit court decision and ruled that legal opinions offered in letters by the state Department of Finance and Administration to taxpayers are public records subject to disclosure under the Arkansas Freedom of Information Act.

Chief Justice Jim Hannah, writing for the court, overruled the lower court’s decision that opinion letters written by the agency to taxpayers in response to specific tax questions were confidential and thus exempted from disclosure under the state’s public records law.

“[T]he legal opinions can be disclosed once confidential information is redacted of any information that identifies a taxpayer or other individual entity,” Hannah wrote.

In the underlying lawsuit, a tax consulting firm had requested certain letter opinions issued by the department, asking only for portions of the letters without any taxpayer identifying information.

The department denied the request, arguing that under the Arkansas Tax Procedure Act, agency opinions were protected from release entirely, much like individual tax returns or audits, because they were privileged taxpayer information.

The court disagreed, however, and distinguished tax information required to be filed with the agency from information generated by the agency.

“While the taxpayer information is certainly protected… the legal opinions in total are not protected under (the act),” Hannah wrote.

The court declined to address Ryan & Co.’s assertion that denial of the records was a constitutional violation.



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