OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF REVENUE ‑- STATE PATROL ‑- TAXATION ‑- PUBLIC RECORDS ‑- DISCLOSURE OF TAX RECORDS TO STATE PATROL
RCW 82.32.330 does not prohibit the state department of revenue from disclosing to the organized crime intelligence unit of the Washington state patrol, for official purposes under RCW 43.43.854, facts or information contained in a return filed by a taxpayer or disclosed in a departmental investigation or examination of a taxpayer's books and records.
- - - - - - - - - - - - -
June 28, 1976
Honorable Will Bachofner
Chief, Washington State Patrol
General Administration Building
Olympia, Washington 98504 Cite as: AGLO 1976 No. 42
Dear Chief Bachofner:
By letter previously acknowledged you have requested an opinion of this office on a question which we have paraphrased as follows:
Does RCW 82.32.330 prohibit the state department of revenue from disclosing to the organized crime intelligence unit of the Washington state patrol, for official purposes under RCW 43.43.854, facts or information contained in a return filed by a taxpayer or disclosed in a departmental investigation or examination of a taxpayer's books and records?
We answer this question in the negative for the reasons set forth in our analysis.
Initially, in order to set the stage for your question, it is necessary to examine the provisions of the so-called "secrecy clause" applicable to certain records or information obtained by the department of revenue in connection with its ongoing enforcement of the state's tax laws. RCW 82.32.330 provides, in pertinent part, that
"Except as hereinafter provided it shall be unlawful for the department of revenue or any member, deputy, clerk, agent, employee, or representative thereof or any other person to make known or reveal any facts or information contained in any return filed by any taxpayer or disclosed in any investigation or examination of the taxpayer's books and records made in connection with the administration hereof. The foregoing, however, shall not be construed to prohibit the department of revenue or a member or employee thereof from: . . . (4) giving such facts or information, for official purposes only, to the governor or attorney general, or to any [[Orig. Op. Page 2]] state department or any committee or subcommittee of the legislature dealing with matters of taxation, revenue, trade, commerce, the control of industry or the professions;. . .
"Any person acquiring knowledge of such facts or information in the course of his employment with the department of revenue and any person acquiring knowledge of such facts and information as provided under (4), . . . above, who reveals or makes known any such facts or information to another not entitled to knowledge of such facts or information under the provisions of this section, shall be punished by a fine of not exceeding one thousand dollars and, if the offender or person guilty of such violation is an officer or employee of the state, he shall forfeit such office or employment and shall be incapable of holding any public office or employment in this state for a period of two years thereafter." (Emphasis supplied.)
Our present inquiry thus becomes one of whether or not the organized crime intelligence unit of the Washington state patrol, when performing the duties provided by law for that unit, comes within the scope of the above underscored exception to this statutory prohibition so as not to be barred by the statute from being given taxpayer information by the department of revenue.
Since RCW 82.32.330 prohibits disclosure of certain tax information and records unless such disclosure is expressly authorized by the legislature, and since disclosure other than as authorized is punishable by fine and/or forfeiture of office, the statute in question is clearly penal in nature and, as such, must be strictly construed. See, e.g.,Marble v. Clein, 55 Wn.2d 315, 317, 347 P.2d 830 (1959). Thus, the language of this statute may not be construed to extend beyond its plain terms by construction or implication. Marble v. Clein,supra; State v. Youngbluth, 60 Wash. 383, 111 Pac. 240 (1910). But, of course, this does not conversely mean that a forced, narrow, or overstrict construction should be applied to defeat the obvious intent of the legislature. State v. Rinkes, 49 Wn.2d 664, 306 P.2d 205 (1957).
As quoted above, the language allowing disclosure to certain state agencies covers
". . . giving such [taxpayer] facts or [[Orig. Op. Page 3]] information, for official purposes only, to the governor or attorney general,or to any state department or any committee or subcommittee of the legislaturedealing with matters of taxation, revenue, trade, commerce, the control of industry or the professions;. . ." (Emphasis supplied.)
In examining the legislative history of the language in question it is significant to note that the original version of RCW 82.32.330 was enacted as § 210 of the Revenue Act of 1935, chapter 180, Laws of 1935. In that original enactment the exception here under consideration did not contain the key phrase "or to any state department." This original version of the exception in question authorized ". . . giving such facts or information, for official purposes only, to the governor, attorney general or to any committee or subcommittee of the legislature dealing with matters of taxation, revenue, trade, commerce, the control of industry or the professions." Section 210(d), chapter 180, Laws of 1935.
This circumstance was altered in 1943 when the legislature amended the original statutory language by adding, as an additional entity entitled to receive taxpayer information from the state tax commission,1/ "any state department."2/ A threshold issue with which we must deal is whether, as a consequence of this amendment, the qualifying phrase "dealing with matters of taxation [etc.] . . ." now also modifies the amendatory phrase "or to any state department" as opposed simply to modifying the phrase immediately preceding it ‑ "or any committee or subcommittee of the legislature." In resolving this issue we first note the general rule that ". . . courts are obliged to interpret a statute, if possible, so that no portion of it is superfluous, void, or insignificant. . . ." Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 288, 494 P.2d 216 (1972). It appears to us that to construe the qualifying language as modifying both antecedents in the phrase in which it appears would effectively ignore or make superfluous the word "any" which immediately precedes the phrase "committee or subcommittee of the legislature." This is because the same interpretation of the entire phrase would obtain were the language to read "or to any state department or committee or subcommittee." On the other hand the second "any" in the statute takes on meaning if this [[Orig. Op. Page 4]] word is viewed as having been intended to separate that which followed from that which preceded the word.
This construction is also supported by resort to the so-called "last antecedent rule"; i.e.,
"Where no contrary intention appears in a statute, relative and qualifying words and phrases, both grammatically and legally, refer to the last antecedent. [Citations omitted]
"The last antecedent is the last word which can be made an antecedent without impairing the meaning of the sentence. . . ." Davis v. Gibbs, 39 Wn.2d 481, 483, 236 P.2d 545 (1951); see, also,Caughey v. Employment Security Department, 81 Wn.2d 597, 602, 503 P.2d 460 (1972).
In the present instance it is clear that the last words in RCW 82.32.330 which can be made an antecedent without impairing the meaning of the sentence are the words "any committee or subcommittee of the legislature." Thus, underDavis v. Gibbs,supra, since there appears no contrary intention in the statute the "dealing with matters" phrase must be construed as modifying this last antecedent ‑ and not the words before it.
Accordingly, giving effect to both of the above rules, we conclude that the nondisclosure exception here in question covers "any state department" and not only such state departments as are "dealing with matters of taxation, revenue, trade, commerce, the control of industry of the professions." The statute therefore does allow the department of revenue to provide taxpayer information for official purposes only to any state department. Thus, the remaining issues to be resolved in answering your question become (a) whether the organized crime intelligence unit within the Washington state patrol constitutes a "state department" and (b) whether the uses to which taxpayer information obtained by it under RCW 82.32.330 would be put would come within the scope of the phrase "for official purposes only."
The organized crime intelligence unit was created within the Washington state patrol by chapter 202, Laws of 1973, 1st Ex. Sess., and the relevant statutes regarding that unit are now codified as RCW 43.43.850 through RCW 43.43.864 and RCW 43.43.911. In turn, the legislature itself [[Orig. Op. Page 5]] has declared that the Washington state patrol constitutes a "department of state government." See, RCW 43.43.010. Thus, it is readily apparent from the plain language of the relevant statutes that the Washington state patrol and its constituent organized crime intelligence unit do constitute just such a "state department" as is contemplated by RCW 82.32.330(4), as amended in 1943.
As for the remaining question regarding the uses to which the information obtained under that statute might be put by the organized crime intelligence unit, you have in requesting our opinion advised us that:
"The occasions on which the OCIU seeks to examine records of the Department of Revenue are limited to those situations where matters coming to the attention of the unit indicate that a subject under scrutiny with respect to a potential relationship with organized crime figures or organized criminal activities, is revealed to be involved in a business or profession within the State of Washington. The purpose of seeking information from Department of Revenue records is to ascertain the nature and extent of such business activities and whether they do indicate or negate links between organized crime participants or activities. The information obtained is processed internally through use of intelligence analytical techniques and specific information may be retained exclusively within OCIU records or disseminated to law enforcement agencies or prosecutors depending on such restrictions as may be imposed by a submitting agency or by law."
Bearing this in mind we next note the following provisions of RCW 43.43.854 regarding the powers and duties of the unit:
"The organized crime intelligence unit shall collect, evaluate, collate, and analyze data and specific investigative information concerning the existence, structure, activities and operations of organized crime and the participants involved therein; coordinate such intelligence data into a centralized system of intelligence information; furnish and exchange pertinent intelligence data with law enforcement agencies and prosecutors with such security and confidentiality as the chief of the Washington state patrol may determine; develop intelligence date concerning [[Orig. Op. Page 6]] the infiltration of organized crime into legitimate businesses within the state of Washington and furnish pertinent intelligence information thereon to law enforcement agencies and prosecutors in affected jurisdictions; and may assist law enforcement agencies and prosecutors in developing evidence for purposes of criminal prosecution of organized crime activities upon request."
So long as information sought by the organized crime intelligence unit under RCW 82.32.330 is requested, and used, in the performance of these specified duties and functions it will thus come within the "for official purposes only" clause of that statute. The particular uses which you have outlined in you letter, as above quoted, would appear to us to meet this test.
For the reasons set forth herein, it is therefore our opinion that RCW 82.32.330 does not prohibit the department of revenue from disclosing to the organized crime intelligence unit of the Washington state patrol, for official purposes, facts or information contained in a return filed by a taxpayer or disclosed in a departmental investigation or examination of a taxpayer's books and records. We should, however, note in so concluding that while that statute does notpreclude the disclosure of taxpayer information to the organized crime intelligence unit, neither does the statute require that the department disclose such information. Thus, the question of whether or not disclosure will be made in any particular instance is one for the sound discretion of the director of revenue under his or her broad authority with respect to all activities of the department of revenue. See, RCW 82.01.070.
We trust that the foregoing will be of assistance to you.
Very truly yours,
RICHARD H. HOLMQUIST
Assistant Attorney General
*** FOOTNOTES ***
1/Now the department of revenue.
2/Section 12, chapter 156, Laws of 1943.