I, joined by
Justice Miller,dissented in the companion ease, Daily Gazette Co. v. Caryl, 181 W.Va. 42, 380 S.E.2d 209 (1989). For the reasons stated therein, the same state tax compromise documents also in question here are not specifically exempted from disclosure under the State Freedom of Information Act, W.Va.Code, 29B-1-1 to 29B-1-6, as amended, by the tax statutes,
W.Va.Code, ll-10-5d(a) [1986, 1988] and W.Va.Code, ll-10-5q(d) [1986]. Consequently, the writ of prohibition seeking to keep this information regarding the official acts of the state tax commissioner, a public official, from the public should be denied. As mentioned in the dissenting opinion in Daily Gazette Co. v. Caryl, the question of the confidentiality of “closing agreements” without litigation in court, see W. Va. Code, ll-10-5q(a)-(b) [1986], is not before this Court in these cases. These cases simply do not involve the confidentiality of an individual’s tax returns filed with the state tax department when there has been no litigation in court involving those returns.
Again, the primary focus here must be upon the State Freedom of Information Act, not upon the tax statutes. The majority has reversed the emphasis and has reached its decision on the basis of an issue as to confidentiality not before the Court. Accordingly, I dissent. I am authorized to state that Justice MILLER joins me in this dissenting opinion.