The Honorable Julia Hughes Jones Auditor of State 230 State Capitol Little Rock, Arkansas 72201
Dear Ms. Jones:
This is in response to your request for an opinion on whether the amount of money withheld for federal, state, and FICA taxes from public relation funds paid to constitutional officers is subject to the Freedom of Information Act, ("FOIA"), codified at A.C.A. §25-19-101 et seq.
It is my opinion that the answer to your question is "no."
With respect to withholding of state income taxes, it is my opinion that the FOIA itself provides an exception. Subsection (b)(1) of A.C.A. § 25-19-105 (Adv. Code Service 1990-91) contains the first exception to the Arkansas FOIA. It excepts "[s]tate income tax records."1 It is my opinion that this exception is broad enough to encompass the amount of tax withheld from an employee's paycheck to satisfy state income tax liability.
With respect to withholding of FICA and federal taxes, federal law is controlling. Section 6103 of Title 26 of the United States Code (Supp. 1991) provides in pertinent part that:
(a) "[r]eturns and return information shall be confidential, and except as authorized by this title —
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(2) no officer or employee of any State . . . shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section.
(b)(2) The term `return information' means —
(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments. . . . [Emphasis added.]
The language above, in my opinion, prohibits the release, by state officials or employees, of amounts withheld for federal tax purposes from the public relations accounts of constitutional officers. It has been held under the federal FOIA that if a confidentiality provision of the Internal Revenue Code, (such as26 U.S.C. § 6103) forbids the disclosure of material, it may not be produced in response to a request under the Freedom of Information Act. Church of Scientology v. California,484 U.S. 9 (1987). The same holds true with respect to our state FOIA.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
Sincerely,
WINSTON BRYANT Attorney General
WB:arb
1 Prior to Act 49 of 1987, the exception extended to state income tax "returns." It now reaches all state income tax "records."