VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-08-06

August 22, 2006

Mark Kumpf
Virginia Animal Control Association
Hanover, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of July 12, 2006.

Dear Mr. Kumpf:

You have asked three questions regarding the disclosure of animal licensing records in light of legislative changes enacted during the 2006 Session of the General Assembly. As background, you stated that opponents of House Bill 339¹ (HB 339)(Del. Orrock) felt that its passage would result in the creation of a state-wide database of animal owners that would contain personal information about all animal owners, and that this database will be subject to mandatory release upon request under the Virginia Freedom of Information Act (FOIA). You further stated that your organization does not believe that this interpretation of HB 339 is correct. Further facts relevant to each of your questions will be presented hereafter.

Your first question asks whether FOIA requires the release of information not required to be collected by state law. You indicated that localities collect certain information for animal license tax purposes pursuant to § 3.1-796.86 of the Code of Virginia. Currently that section of the Code states, in relevant part:

The treasurer or other officer charged with the duty of issuing dog and cat licenses shall only have authority to license dogs and cats of resident owners or custodians who reside within the boundary limits of his county or city and may require information to this effect from any applicant. Upon receipt of proper application and current certificate of vaccination as required by this article, the treasurer or other officer charged with the duty of issuing dog and cat licenses shall issue a license receipt for the amount on which he shall record the name and address of the owner or custodian, the date of payment, the year for which issued, the serial number of the tag, whether dog or cat, whether male, unsexed female, female or kennel, and deliver the metal license tags or plates provided for herein. The information thus received shall be retained by the treasurer, open to public inspection, during the period for which such license is valid.

As of July 1, 2007, when the new language goes into effect, that portion of § 3.1-796.86 will read as follows:

The treasurer or other officer charged with the duty of issuing dog and cat licenses shall only have authority to license dogs and cats of resident owners or custodians who reside within the boundary limits of his county or city and may require information to this effect from any applicant. Upon receipt of proper application and current certificate of vaccination as required by this article or satisfactory evidence that such certificate has been obtained, the treasurer or other officer charged with the duty of issuing dog and cat licenses shall issue a license receipt for the amount on which he shall record the name and address of the owner or custodian, the date of payment, the year for which issued, the serial number of the tag, whether dog or cat, whether male or female, whether spayed or neutered, or whether a kennel, and deliver the metal license tags or plates provided for herein. The information thus received shall be retained by the treasurer, open to public inspection, during the period for which such license is valid.

You further indicated that many localities collect additional information, such as the specific breed, color, and name of the animal, as well as the owner's telephone number, electronic mail address, social security number, and sometimes other personal information. You indicated that you do not believe that a public body would be required to release such additional information, but would be required only to provide the information specifically listed in the statute itself.

The General Assembly enacted FOIA to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. In the case of public records, [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute...all public records shall be available for inspection and copying upon request....Any exemption from public access to records...shall be narrowly construed and no record shall be withheld...unless specifically made exempt pursuant to this chapter or other specific provision of law. FOIA defines a public record to include any record, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.

Animal licensing tax records are therefore public records as defined by FOIA, and are subject to disclosure upon request, unless some exemption applies that would permit them to be withheld. Whether the records contain only the information required to be collected pursuant to § 3.1-796.86, or also contain additional information not required to be collected by the public body, does not change their character as public records subject to FOIA. Such additional information collected is part of the same record, and unless specifically exempted, must be disclosed upon request. Both the current version of 3.1-796.86, and the version that will take effect on July 1, 2007, clearly state that animal licensing tax records shall be retained by the treasurer, open to public inspection.

However, FOIA does contain an exemption for certain other tax records. Subdivision 1 of § 2.2-3705.7 exempts [s]tate income, business, and estate tax returns, personal property tax returns, scholastic and confidential records held pursuant to § 58.1-3. Outside of FOIA, § 58.1-3 requires certain tax records to be held confidential [e]xcept in accordance with a proper judicial order or as otherwise provided by law. As you pointed out, § 3.1-796.127 deems cats and dogs to be personal property. Thus an argument could be made that animal licensing tax records are therefore personal property tax records subject to the secrecy provisions of § 58.1-3. While it is beyond the authority of the FOIA Council to offer a legal interpretation of Virginia's tax laws, the General Assembly clearly stated in § 3.1-796.86 that animal licensing tax records shall be open to the public. Section 58.1-3 plainly allows disclosure as otherwise provided by law, as quoted above. Reading these statutes together it appears that animal licensing tax records collected pursuant to § 3.1-796.86 are not covered by the secrecy provisions of § 58.1-3. The language of both statutes is plain in this regard, the statutes do not conflict with each other, and resort to rules of statutory construction is unnecessary.²

One other exemption outside of FOIA may apply to certain information contained in these records. Section 2.2-3808.1 of the Government Data Collection and Dissemination Practices Act (GDCDPA) reads as follows:

Notwithstanding Chapter 37 (§ 2.2-3700 et seq.) of this title [FOIA] or § 2.2-3802, it shall be unlawful for any agency or court clerk to disclose the social security number or other identification numbers appearing on driver's licenses or information on credit cards, debit cards, bank accounts, or other electronic billing and payment systems that was supplied to an agency or a court clerk for the purpose of paying fees, fines, taxes, or other charges collected by such agency or court clerk. The prohibition shall not apply where disclosure of such information is required (i) to conduct or complete the transaction for which such information was submitted or (ii) by other law or court order.³

While social security or other identification numbers are not required to be collected pursuant to § 3.1-796.86, you indicated that localities do sometimes collect these numbers. If the purpose of collecting those numbers is for the purpose of paying fees, fines, taxes, or other charges, then it would appear that the section of the GDCDPA quoted above would prohibit the release of those numbers. It would not prohibit the release of other information voluntarily collected as part of the animal licensing tax records, such as the breed, color, and name of the animal, or the owner's telephone number or electronic mail address. Such other personal information collected by the public body does not appear to be subject to any exemption. Therefore if such other personal information is collected along with the information required under § 3.1-796.86 as part of the same animal licensing tax record, then it must be disclosed upon request.

Your second question asks whether other tax records of a comparable nature are subject to release under FOIA. You did not provide any example of a type of tax record that is comparable to the animal licensing tax records at issue. As discussed above, certain tax records are prohibited from disclosure pursuant to § 58.1-3, but it is not clear whether you refer to § 58.1-3 as a basis for comparison.

Your third question asks whether animal license tax records should be considered the same as other tax records. Again, you did not provide a specific example of other tax records for comparison. To the extent these questions ask for a legal analysis and comparison of specific tax law provisions, it is beyond the statutory authority of this office. However, to the extent you ask about the treatment of records under FOIA, it is clear that at least some tax records are exempt from disclosure, while others must be released, as discussed previously. Without specific examples for comparison, it is not possible to provide a more specific answer. You may wish to refer questions regarding specific provisions of tax law to a private attorney, the Department of Taxation, or other counsel.

The facts involved in this opinion provide this office with an opportunity to discuss a related issue: the collection of information by government. Public bodies should critically evaluate why any information is collected in the first instance, especially information such as social security numbers and other personal identifiers, and whether this information is required by law to be collected or otherwise essential to the purpose of the public body. Once information becomes a part of a public body's records, then absent a statutory exemption, these public records must be released if requested. It is time for government to reflect on information it collects as part of its purpose in fulfilling the public mission. The GDCDPA requires no less. Enacted in response to the rise of automated data systems, the GDCDPA provides specific guidance and rules for handling personal information. For example, subsection C of § 2.2-3800 directs [r]ecordkeeping agencies of the Commonwealth and political subdivisions to adhere to certain principles of information practice to ensure safeguards for personal privacy. Among others, those principles include that [i]nformation shall not be collected unless the need for it has been clearly established in advance, that [i]nformation shall be appropriate and relevant to the purpose for which it has been collected, and that [t]he Commonwealth or any agency or political subdivision thereof shall not collect personal information except as explicitly or implicitly authorized by law. While the GDCDPA is not often mentioned, its provisions are increasingly relevant to public record discussions today. Government should not collect information, particularly personal information about citizens, out of habit or tradition, or merely because such collection is convenient. Instead, each public body should consider how and whether the collection of particular information facilitates achieving that public body's mission. Superfluous information that does not aid the public body in its mission should not be collected.

In today's information age, privacy concerns and the threat of identity theft challenge longstanding rights of public access and principles of open government. It is important to note that the General Assembly has enacted several privacy based exemptions from disclosure that apply to particular types of records likely to contain personal information, such as exemptions for personnel records, scholastic records, and health records. There are also more limited exemptions applicable specifically to social security numbers, such as 2.2-3808.1 of the GDCDPA, quoted above, and subdivisions 17 and 18 of § 2.2-3705.7, which apply to certain records regarding toll facilities and records of the State Lottery Department, respectively. However, there is no exemption of general application that would allow social security numbers or other personal information to be redacted or otherwise withheld from disclosure. Just because a public record contains personal information does not automatically exempt that personal information or that record from disclosure. If no exemption applies, then the record must be released in its entirety upon request. The best way for a public body to guarantee the confidentiality of citizens' personal and private information is simply not to collect such information unnecessarily. Additionally, when collecting any information, public bodies would be well advised to include notice advising citizens (i) whether the citizen has the option not to provide certain information and (ii) whether the information collected is subject to disclosure as a public record under FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹ 2006 Acts of Assembly, Ch. 836. Note that this law has a delayed effective date of July 1, 2007. Both the law as it is currently in effect and the law as it will take effect on July 1, 2007, are quoted herein for comparison by the reader.
² See, e.g., Ogunde v. Commonwealth, 271 Va. 639, 628 S.E.2d 370 (2006)("It is elementary that when construing a statute, courts must ascertain and give effect to the legislature's intention. In determining that intent, the plain language of an unambiguous statute will be applied. And, rules of statutory construction will be used by the courts to harmonize enactments when the plain language of two statutes apparently conflicts." [Internal citations omitted.] ).
³ Pursuant to § 2.2-3801 of the GDCDPA, agency is defined to mean any agency, authority, board, department, division, commission, institution, bureau, or like governmental entity of the Commonwealth or of any unit of local government including counties, cities, towns, regional governments, and the departments thereof, and includes constitutional officers, except as otherwise expressly provided by law. "Agency" shall also include any entity, whether public or private, with which any of the foregoing has entered into a contractual relationship for the operation of a system of personal information to accomplish an agency function. Any such entity included in this definition by reason of a contractual relationship shall only be deemed an agency as relates to services performed pursuant to that contractual relationship, provided that if any such entity is a consumer reporting agency, it shall be deemed to have satisfied all of the requirements of this chapter if it fully complies with the requirements of the Federal Fair Credit Reporting Act as applicable to services performed pursuant to such contractual relationship.