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December 23, 1986

HonorableBob Bullock Comptrollerof PublicAccounts L.B.J. StateOfficeBuilding Austin,Texas 78774 OpinionNo. JM-590

Re: Whether information submitted by a taxpayer in support of a request for a refund of sales taxes paid is excepted from disclosureunder the Open RecordsAct

Dear Mr. Bullock:

You ask us two questions regarding the applicabilityof the Open Records Act, artikle 6252-17a. V.T.C.S., to certain information in your possessionand control. Your twoquestionsare as follows:

1. Is information submitted by a taxpayer in support of a request for a refund of sales taxes paid excepted from disclosure under the Open Records Act? This information includes the ~identityof the parties to the transactiongiving rise to the refund and the amount of the transaction.

2. Does a city whose sales tax allocation is affectedby this refund have any greater right to this informationthanany otherperson?

We answeryour first question in the affirmative. Such informationis excepted from requiredpublic disclosureunder section 3(a)(l) of the Open Records Act, article 6252-17a, V.T.C.S. We answer your second question in the negative. The act affords the city no greater right of access than any other requestor.

You inform us that a certain home rule city, which imposes a sales tax pursuant to article 1066~.V.T.C.S., (Local Sales and Use Tax Act).has requested fromyour office certain informationregarding
a specific sales tax refund. After the citywas notified that a large tax refund on a single transaction was being offset against that city's current sales taxpayment, it requested

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any documentationreflecting the name and address of the seller, the total amount of the transaction, aswell as any documentationincludingbut not limited to working papers of your office, whereby [was made] the determination that the exemptionwas valid.

Section 5(a) of article 1066c, V.T.C.S.. reposes in the comptroller the duty to perform all functions incident to the administration,collection,enforcement,and operationof the tax. As
a result, you are in possession of the information which the city seeks.

Section 6(6), article 6252-17a, V.T.C.S., specifically makes public "thename,place ofbusiness, and thename of the city towhich local sales and use taxes are credited, if any, for the named person, of persons reporting or paying sales and use taxes under the Limited Sales, Excise, andUse Tax Act." The informationrequested,however, ismuch broader in scope. You claim that the requested informationis excepted from required public disclosure by section 3(a)(l) of the Open Records Act which excepts "information deemed confidential by law, either Constitutional, statutory, or by judicial decision," specifically,section 151.027of the Tax Code. We agree.
Section 151.027of theTax Code provides the following:

5151.027. Confidentialityof Tax Information
(a) Information in or derived from a record, report, or other instrument required to be furnished under this chapter is confidential and not open topublic inspection,except for information set forth in a lien filedunder this title or a permit issuedunder this chapter to a sellerand except as provided by Subsection (c) of. this section.
(b) Information secured, derived, or obtained during the course of an examination of a taxpayer's books, records, papers, officers, or employees, including the business affairs, operations, profits, losses, and expenditures of the taxpayer, is confidential and not open to public inspectionexcept as providedby Subsection (c)of this section.
(c) This sectiondoesnot prohibit:

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(1) the examination of information, if authorizedby the comptroller,by another state officer or law enforcement officer, by a tax officialof another state, orby an official of the United States if a reciprocal agreement exists;
(2) the delivery to a taxpayer, or a taxpayer'sauthorizedrepresentative,of a copy of
a report or other paper filed by the taxpayer under this chapter;
(3) the publication of statistics classified toprevent the identifications of a particular report or items in a particularreport;
(4) the use of records, reports, or information secured, derived, or obtained by the attorney general or the comptroller in an action under this chapter against the same taxpayerwho furnishedthe information;or
(5) the delivery to a successor, receiver, executor,administrator,assignee, or guarantor of a taxpayer of information about items included in the measure and amounts of any unpaid tax or amounts of tax, penalties. and interest required to be collected. (Emphasis added).

This office has already declared in an earlier cpinion, Attorney General OpinionH-223 (1974),that thepredecessorsto section 151.027 of the Tax Code, articles 1.031 and 20.11(G)of Title 122A,V.T.C.S., brought the information specified thereinwithin the section 3(a)(l) exception. The opinion concluded that the comptroller is not prohibited fromdisclosing the fact that an individualhas requesteda redeterminationor claim forrefundhearing,buthe is prohibited from disclosing facts about that taxpayer's business affairs. The comptrollermay disclose his resolution of the issues raised in such administrativehearings, but he must not do so in a manner that will make possible identificationof the individual taxpayer ,involved. In Attorney General Opinion H-661 (1975). this office further concluded that section 151.027'spredecessor statute prohibits the comptroller from releasing information as to the amounts of the tax paid by a particular taxpayer, nor may he release the amount of tax in controversy in an administrative hearing prior to making a final determination if doing so would indicate the amount of the taxpayer's gross sales. Accordingly, we answer your first question in the affirmative. With the exception of the information specificallymade

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public by section 6(6) of the Open Records Act, the information requested of you is excepted from disclosure by section 3(a)(l) of article 6252-17a.

Your second question asks whether a city whose sales tax revenue is affected by a decision of your office has any greater right of
access to information regarding that decision than any other requestor. It is suggested that such a city does. It is suggested that you stand in a fiduciary relationshipwith each city for which you administer a local tax, that you act as agent and that each city stands in the position of a principal. The argument concludes that, since a fiduciary isunder a duty of disclosure to thatparty forwhom he acts as fiduciary, any disclosure by you to such city would not constitute a public disclosure of such records. We do not characterize the relationshipwhich exists between you and each city for which you administer such a local tax to be one of principal and agent. We further conclude that neither the Open Records Act nor any other statute confersupon a city forwhich you administera local tax any specialright of accessnot enjoyedby any other requestor.
Generally, "agency" is defined as the legal relationship,based upon an express or implied contract of the parties or created by operation of law, by virtue of which one party. the agent. is

_ authorizedto act for the otherparty,who is theprincipal. -See-s V. Eikenberry. 122 S.W.2d 1045 (Tex. 1939);Thompson V. Schmitt, 274 S.W. 554 (Tex. 1925). A basic test of agency is the right of the principal to control the actions of his agent. Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex. Civ. App. - Corpus Christ1 1974,writ ref'd n.r.e.). No agency relationship can be said to exist unless the actions of the alleged agent are within the control of the principal. First National Bank of Mineola V. Farmers and Merchants State Bank of Athens, 417 S.W.2d 317 (Tex.Civ. APP. - Tyler 1967, writ ref'd n.r.e.). In this instance, the comptroller cannot be said to be an agent acting under the direction
or control of any principal. Indeed, neither the city nor the comptroller can be said to be acting at the control or discretion of the other. SeeV.T.C.S. art. 1066~;Tax Code ch. 151.

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As to any general fiduciary duty owed by the comptroller, such dutywould appear tobe owed to the stategenerallyrather than to any individual city in particular. Though public officers are for some purposes agents of the public and of the policy that they represent, Kopecky V. Yoakum, 52 S.W.2d 240, judgment adopted (Tex.Comm'n App. 1932); City of Hallettsville V. Long, 32 S.W. 567 (Tex. Civ. App. 1895, no writ), they are agents whose duty and authority are defined and limitedby law. Id.; see also BayhaV. Carter, 26 S.W. 137 (Tex. Civ. App. 1894, no writ). An officermust look to that act by which his office is createdand its duties are defined in order to ascertain the extent of his powers and the scope and nature of his duties; he

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may not transcend the former nor Vary the prescribed mode of performanceof the latter. Crosthwaitv. State, 138 S.W.2d 1060 (Tex. 1940). We find no provision in any relevant statutewhich places the comptroller in some sort of fiduciary relationship with the cities whose local sales taxhe must administer.
Finally, it is suggested that the relationship,by whatever term it is called,which exists between the comptroller and each city for which he administers the local tax confersupon such a city a special right of access under the Open Records Act to the requested information. We disagree. The act itself confersno impliedright of access upon any requestor. See Attorney General Opinions MW-381 (1981); Mu-95 (1979); Open Records Decision Nos. 330 (1982); 288 (1981). Accordingly,we answeryour second question in the negative; the city whose sales tax revenue is directly affected by your decision regarding a refund has no greater right to this information than any other requestor.
Although a long line of Attorney General Opinions and Open Records Decisions have concluded that informationmay be transferred between governmental agencies which are subject to the Texas Open Records Act without destroying its confidential character, Attorney GeneralOpinionsH-917, H-836 (1976);H-242 (1974);M-713 (1970);Open RecordsDecisionNos. 272 (1981);183 (1978).thisprinciplehas never been applied where a statute makes such information confidential. Section 151.027of theTax Code enumeratesthose entities towhich the information may be disclosed; an affected municipality is not included. The express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others. State V. Mauritz-Wells Co.. 175 S.W.2d 238 (Tex. 1943); Federal Crude Oil Co. V. Yount-Lee Oil Co., 52 S.W.2d 56 (Tex. 1932). We conclude therefore that you may not transfer this information to such a city in return for a promise of confidentiality.

SUMMARY

Information received by the Comptroller of Public Accounts pursuant to article 1066c, V.T.C.S., (Local Sales and Use Tax Act) and chapter 151 of the Tax Code is excepted from required public disclosureunder the Open Records Act by section 3(a)(l) of the act and by section 151.027of the Tax Code.

A citywhose sales tax revenue is affectedby a decision made by the comptroller of public accounts regarding a sales tax refund has no greater right of access than does any other requestor under the Open Records Act ~to

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information in the custody of the comptroller concerningthat refund.

JIM MATTOX Attorney General of Texas

JACKHIGHTOWER First AssistantAttorney General

MARY KELLER ExecutiveAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee
Preparedby Jim Moellinger AssistantAttorneyGeneral

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