                            February     11, 1974



The Honorable Robert S. Calvert             Opinion No. H- 223
Comptroller  of Public Accounts
State Finance Building                      Re: Impact of the Open Records
Austin, Texas                               Act and .tie Open Meetings Act on
                                            administrative  proceedings held
                                            by the Comptroller’s   Hearings
                                            Division

Dear Mr.   Cdvert:

     You have submitted the follotiing    questions   to us for our opinion:

            1) Keeping the provisi&    of the Open Records Act in
            mind, does Art. 2O.ll(G) or any other provision of
            Title 122A.. Taxation-General,   V. T. C. S. , prohibit
            any official or employee of the ,Comptroller    from:

                     a) disclosing the .fact that an individual
                     has requested a redetermination      or
                     claim for refund.haaring?

                     b) disclosing the resolution of legal
                     issues, including their factual back-
                     grounds, that arose in administrative
                     proceedings conducted by the Camp;
                     troller’s  Hearings Division when.
                     disclosure would identify the individ-
                     ual taxpayer who raised the issues?

            2) Do the administrative  proceedings  conducted by the
            Comptroller’s   Hearings Division pursuant to the provisions
            of Title 122a. Tax. -Gen., V. T. C. S., fall within the defi-
            nition of “meeting” as used in the Open Meetings Act, Art.
            6252-17, V. T. C. S. 1




                                    p. 1040
The Honorable    Robert    S. Calvert,    page 2 (H-223)




             3) Should the preceding question be answered affirma-
             tively, can the information acquired by the Comptroller!6
             office in its investigation of the taxpayer be presented
             at such proceedings without violating Art. 20.11(G), Tax.
             -Gen., V. T. C. S. ?

       The purpose of the Open Records Act, Art. 6252-17a, V. T. C. S., is to
provide the public with access to information regarding the affairs of government
and, to this end, its provisions   are to be construed liberally.    Subject to certain
 exceptions, the Act makes public all information collected,      assembled,   or main-
tained by governmental bodies pursuant to law or ordinance or in connection with
the transaction of official business.    One of the exceptions is made by § 3(a)(l)
which exempts from disclosure to the public “information        deemed confidential
by law,~ either Constitutional,  statutory, or by judicial decision. ”

      Relevant to the exception in the Act for “information deemed confidential
by law” ara several provisions found in Title 122A, Tax. -Gen. , V. T. C.S. (1969).
One of these is Article 1. 031 which states:

                        “(1) For the purpose of carrying out the terms
             of this Title the Comptroller   or any authorized agent
             shall have the authority to examine at the principal or
             any other office in the United States of any person,
             firm, agent, or corporation permitted to do busines
             in this State, all books, records and papers and also
             any officers or employees thereof, under oath. . . .
             The Comptroller     shall not make public or use said
             information derived in the course of said examination
             of said books, records and papers and/or officers or
             employees except for the purpose of a judicial proceed-
             ing for the collection of delinquent taxes in which the
             State of Texas is a party. . . .”

       In addition Article    20.11 (G)(l)   provides:

                          “(G) Disclosure    of Information   Unlawful:




                                         p. 1041
The Honorable    Robert     S. Calvert,   page 3 (H-223)




            “Examination      of Records.

                        “(1) It shall be a misdemeanor   for any
             official or employee of the Comptroller      to make
             known in any manner whatever the business affairs,
             operations or information obtained by an investigation
             of records and activities of any retailer or any other
             person visited or examined in the discharge of
             official duty, or the amount or source of income,
             profits,  losses,    expenditures, or any particular
             thereof, set forth or disclosed in any return; or
             to permit. any return or copy thereof; or any book
             containing any abstract or particulars     thereof to be
             seen or exam.ined by any’person not connected with
             the Comptroller.     It

Also’ see Articles~ 7.25,     7.26. .12.10. ,12.10A and 13.17 5 7. Taxation-General
V. T. C. S.

        The effect of these provisions is to make certaininformation         in the
possession of the Comptroller      confidential and thereby bring it within the
8 3(a)(l) exception to the Open Records Act, but nowhere in them, or any
other provision of Title 122A. is there any reference to maintaining the confi-
dentiality of the fact of a taxpayer’s request for a redetermination        or claim
for refund hearing.     Revelation of the fact that a taxpayer has requested a
reconsideration    of his tax status is hardly comparable to revealing the actual
details of his business affairs whith have been uncovered by the Comptroller
during his investigations    and which tiill’be considered by the Comptroller
in reaching a conclusion.      Accordinglywhile    the latter information is expressly
made confidential by the provisions       of Title 122A, the mere fact that a hearing
has been sought is not. Since the confidentiality        provisions of Title 122A do
not encompass the fact that an individual has requested a redetermination            or
claim for refund hearing. that information is made public by mandate of the
Open Records Act, and officials or employees of the Comptroller             may disclose
it without penalty.

      On the other hand the quoted provisions of Title 122A expressly prohibit,
the Comptroller  from disclosing “in any manner whatever” information about




                                            p. 1042
The Honorable    Robert   S. Calvert,     page 4 (H-223)




 a taxpayer’s affairs which has been obtained while examining his books, records,
 returns, etc. This information is deemed confidential by law, and $ 3(a)(l)
 excepts it from the disclosure requirements      of the Open Records Act.     But it
 is just this kind of information which the Comptroller     must consider at the
 hearings he conducts to resolve an individual’s claim for a refund or his request
 for a redetermination.     In reporting his resolution of the issues raised at these
 administrative   proceedings,   the Comptroller   must refrain from identifying the
 name of the taxpayer involved or revealing any information as to the nature of
 the taxpayer’s business operations which would serve to identify him.         In his
 decisions he must discuss the principles of law applicable to the factual situation
 in question without going into details which would make identification possible.
 But as long as he confines himself to generalities,     and the identity of the individ-
 ual taxpayer involved remains unknown, the Comptroller        may disclose the
 decisions he reaches without violating the confidentiality    provisions of Title
122A.

      Your second question requires us to consider what effect the Open Meet-
ings Act, Art.   6252-17, V. T. C. S. , has on the administrative  proceedings
conducted by the Comptroller’s    Hearings Division.    In .general the Open Meet-
ings Act requires every regular,     special, or called meeting or session of
every governmental body to be open to the public. Section 1oftheA& defines “meet-
ing” as follows:

                       “(a) ‘Meeting’ means any deliberation
             between a quorum of members of a ,governmental
             body at which any public business or public policy
             over which the governmental body has supervision
             or control is discussed or considered,   or at which
             any formal action is taken. ” (emphasis added)

      The Comptroller’s     Hearing Division conducts hearings in order to
consider the requests of individual taxpayers for a refund or for a redeter-
mination of their tax status. Of necessity these proceedings must focus on
the details of the taxpayer’s affairs; information contained in the taxpayer’s
books, records,    and papers must be examined and discussed.

       But Articles 1. 031 and 20.11 (G)(l) of Title 122A expressly prohibit the
 Comptroller’s   office from making information about a taxpayer’s affairs public
 “in any manner whatever”.     Compliance with these provisions would be impos-




                                        p. 1043
The Honorable   Robert S. Calvert,     page 5 (H-223)




sible if the Comptroller were to open to the public the proceedings at which
just such information was considered.    In effect, the confidentiality provisions
of Title 122A make the administrative  proceedings conducted by the Comptroller
private affairs insofar as they are concerned with the business, operations,
amount of income, etc. , of individual taxpayers.

       Since these proceedings,   usually conducted by a hearing examiner
representing the Comptroller,    do not involve “deliberation  between a quorum
of members of a governmental body at which any public business is public
policy. . . is discussed”,  they are not “meetings” as defined in $1 of the Open
Meetings Act.     They need not be open to the public, and indeed the Comptroller
should close them to the public, if necessary,     to comply with the prohibitions
contained in Articles 1. 031 and 20.11 (G)(l) of Title 122A.

                                       SUMMARY

                      The provisions    of Title 122A do not prohibit the
            Comptroller    from disclosing the fact that an individual
            has requested a redetermination      or claim for refund
            hearing.   While the Comptroller     may disclose his resolu-
            tion of the issues raised in the administrative    proceedings
            he conducts, he must not do so in a manner that will make
            possible identification of the individual taxpayer involved.
            The administrative     proceedings conducted by the Comp-
            troller’s  Hearings Division are not “meetings” as defined
            in the Open Meetings Act and should not be open to the
            public.

                                                     Jours   very truly,




                                                 u   Attorney   General    of Texas




                       --
DAVID M. KE:NDALL,          Chairman
Opinion Committee


                                          p. 1044
