VIA EMAIL ONLY

November 10, 2023

Jason M. Schupp

Matthew Cate, Esquire

Legal Counsel, RI Department of Revenue | Division of Taxation

Dear Mr. Schupp and Attorney Cate:

In connection with this the Access to Public Records Act (“APRA”) Complaint filed by Mr. Jason M. Schupp (“Complainant”) against the Division of Taxation of the Rhode Island Department of Revenue (“DOR”), we previously issued a finding in PR 23-43 determining that DOR violated the APRA but asking the parties to provide supplemental submissions addressing whether segregable portions of the requested records should be disclosed. For the reasons explained below, we conclude that it was permissible for DOR to withhold the requested documents in full.

Prior Findings in PR 23-43

The Complainant submitted an APRA request to DOR “requesting Form T-71SP - Self Procurement Insurance Premiums Returns that have been filed from January 1, 2018 to present.” DOR denied the request pursuant to R.I. Gen. Laws § 38-2-2(4)(O), which provides that “all tax returns” are non-public under the APRA, and R.I. Gen Laws § 38-2-2(4)(S) because taxpayer information is confidential by law and disclosure is prohibited unless authorized by statute.

The Complainant argued that Rhode Island law separately requires a) the filing of a transaction report by an insured that procures insurance directly from an unauthorized insurer, and b) a tax upon premiums for insurance directly procured from an unauthorized insurer. See R.I. Gen. Laws §§ 27-3-38.1(a); 27-3-38.1(d). The Complainant did not dispute that the tax return portion of the form was non-public, but argued that the two form requirements were separate and that even though DOR made the decision to include both the transaction report and tax return information in the same reporting form, the “transaction report” portion of the form is segregable and should be produced. The Complainant sought:

• Name and address of the insured

• Name and address of the insurer

• The subject of the insurance

• A general description of the coverage

• The amount of premium currently charged

This Office’s first finding with respect to this Complaint determined that DOR violated the APRA by failing to affirmatively state that no reasonably segregable portion of the requested records could be provided. See R.I. Gen. Laws § 38-2-3(b). This Office directed the parties to provide supplemental submissions addressing whether any reasonably segregable portion of the requested documents is public under the APRA.

DOR provided a supplemental response asserting that the information requested is non-public in its entirety and no reasonably segregable portion can be produced because 1) the entire document constitutes a tax return that is exempt pursuant to R.I. Gen. Laws § 38-2-2(4)(O); 2) the information is confidential and exempt pursuant to R.I. Gen. Laws § 38-2-2(4)(S) because 280-RICR-20-00-4.2(D) states that taxpayers “have a right to…[b]e assured that the department will keep confidential the financial information [the taxpayer] give[s] it….”[1]; and 3) disclosing any information about tax returns would also be an unwarranted invasion of privacy pursuant to R.I. Gen. Laws § 38-2-2(4)(A)(I)(b) and the privacy balancing test. DOR argues that the Complainant has not alleged any public interest in the return information requested that supersedes the privacy interest that all taxpayers have in their returns and return information, and that even if he did, it is unclear how tax returns or tax return information would shed light on government operations. DOR also argues that although it did not raise this privacy exemption earlier, it did raise exemptions based on confidentiality and the exemption should be considered because private individuals’ privacy interests are at stake. Finally, DOR argues that even if the 38.1(a) information were public, it is inextricably intertwined with the 38.1(d) information and cannot be disclosed.

The Complainant also submitted a supplemental response. The Complainant argues that DOR cannot render the 38.1(a) information a tax “return” that is immune from disclosure by choosing to combine the 38.1(a) and 38.1(d) information in a single form. The Complainant also argues that the provisions cited by DOR regarding confidentiality are inapplicable, including because the information at issue in this case pertains to insureds, not taxes. Regarding DOR’s invocation of the privacy balancing test, the Complainant argues that he has no interest in any form submitted by an individual insured and is only interested in reports filed by organizations and entities pursuant to R.I. Gen. Laws § 27-3-38.1(a). The Complainant asserts that he does not need to identify a public interest in the information requested or how it would shed light on government. Finally, the Complainant asserts that DOR could redact the entire lower portion of the form and just provide the upper portion.

The Complainant has explained that he is seeking the following information about private insureds[2]:

• Name and address of the insured

• Name and address of the insurer

• The subject of the insurance

• A general description of the coverage

• The amount of premium currently charged

We find that insureds have a privacy interest in this type of information. The APRA recognizes that it is “the intent of this chapter to protect from disclosure information about particular individuals maintained in the files of public bodies when disclosure would constitute an unwarranted invasion of personal privacy.” R.I. Gen. Laws § 38-2-1. Under the APRA, “personal individually identifiable records . . . the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” are exempted from the definition of public records. R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). This exemption encompasses a balancing test whereby the privacy interests in a record are weighed against any public interest.

There is a privacy interest in the type of information the Complainant is seeking. In Aronson v. U.S. Department of Housing and Urban Development, the First Circuit recognized a privacy interest under the Freedom of information Act (FOIA) in individuals’ names and addresses that is heightened “when names and addresses are combined with financial information.” 822 F.2d 182, 186 (1st Cir. 1987) (analyzing request seeking information concerning individuals whose mortgages were insured under the National Housing Act). In that case, the First Circuit recognized a privacy interest and determined that disclosure was only required because of a very significant public interest in ensuring that individuals received reimbursements to which they were entitled, and then held that the requested information could be withheld for a period of time in order to try to facilitate the provision of reimbursements directly through the government.

Here, the Complainant is specifically requesting the name and address of insureds, paired with information about the insured’s insurance coverage. There is a privacy interest in this information. See id.; see also Forest Guardians v. U.S. Fed. Emergency Mgmt. Agency, 410 F.3d 1214, 1220 (10th Cir. 2005) (determining policyholders have a privacy interest in their name and address, their decision to purchase federally subsidized flood insurance, and other information concerning their properties, especially where disclosure could subject individuals to unwanted contacts or solicitation by private insurance companies); Stabasefski v. United States, 919 F. Supp. 1570 (M.D. Ga. 1996) (concluding names, social security numbers, home addresses, and insurance policy numbers were properly excised pursuant to exemption as clearly unwarranted invasion of personal privacy). The Complainant, despite having an opportunity to identify a public interest in the requested information, has not done so. Instead, the Complainant asserts that the APRA does not require a requester to identify an interest in the records. While that is ordinarily true, when applying the balancing test and when a privacy interest has been identified, it is appropriate to consider whether there is a public interest in disclosure of the records that would outweigh said privacy interest. No such public interest is apparent to this Office and the Complainant has not identified how disclosure of the requested information “sheds light” on how government operates, which is how public interest is evaluated under the FOIA and the APRA. See U.S. Dep’t of Just. v. Reps. Comm. For Freedom of Press, 489 U.S. 749, 775 (1989). Although we can see how someone in the insurance industry may have a business interest in obtaining the type of information contained in the form regarding insureds and the insurance products they purchase, that is not a cognizable interest under the APRA.

We also find that there is good cause not to find the privacy balancing test exemption waived because the information at issue here implicates individuals’ privacy and because DOR’s argument that the requested information was exempt because it was confidential practically-speaking gave notice that privacy interests were implicated. See R.I. Gen. Laws § 38-2-7(a); see also Scripps News v. Rhode Island Dept. of Bus. Regs., PR 14-07 (“We have great difficulty accepting the argument that documents maintained by DBR relating to third parties should be disclosed because of an untimely response.”); August v. RIPTA, PR 20-42 (“Because the ridership reports at issue contain information about third party individuals, and which could be used to track third party private citizens, we do not think RIPTA’s failure to identify and exempt these responsive records when first responding to the request should result in these individuals’ privacy interests not being considered.”).

Accordingly, we find that the requested information is exempt and that it was permissible for DOR to withhold it. As such, even though DOR violated the APRA by failing to state in its response that no reasonably segregable portion of the record could be provided, we do not find that injunctive relief is appropriate. Additionally, we have not been presented with evidence that DOR’s failure to include that statement was willful and knowing or reckless, especially in these circumstances where we have concluded that withholding the record in its entirety was permissible.

Because we have concluded that the information is exempt under the privacy balancing test, it is unnecessary for us to consider the other exemptions raised.