DEPARTMENT OF REVENUE'S ACCESS TO CERTAIN LIQUOR CONTROL BOARD RECORDS

INITIATIVE NO. 276 ‑- PUBLIC RECORDS ‑- DEPARTMENT OF REVENUE'S ACCESS TO CERTAIN LIQUOR CONTROL BOARD RECORDS

Read in the light of Initiative No. 276, RCW 66.16.090 does not now prohibit the liquor control board or its employees from disclosing the identity of, or permitting examination of its records regarding liquor sales to, purchasers of liquor for resale by the drink under RCW 66.24.420-66.24.450; the contents of those records may properly be disclosed to the department of revenue in response to an administrative subpoena issued pursuant to RCW 82.32.110 and such action will not be violative of the protective provisions of RCW 42.17.260.

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                                                                    July 28, 1976

Honorable Mary Ellen McCaffree
Director, Department of Revenue
General Administration Building
Olympia, Washington 98504

Honorable Jack C. Hood
Chairman, Liquor Control Board
Capitol Plaza Building
1025 East Union Avenue
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 47

Dear Mrs. McCaffree and Mr. Hood:

            By letter previously acknowledged you have jointly requested an opinion of this office on the following question:

            "Does RCW 66.16.090 preclude the Liquor Control Board from answering an administrative subpoena issued by the Department of Revenue pursuant to RCW 82.32.110 seeking records showing sales of liquor by the Liquor Board to taxpayers engaged in selling liquor by the drink [under RCW 66.24.420-66.24.450]?"

            We answer this question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 66.16.090 is the codification of § 89 of the Washington state liquor act (§ 89, chapter 62, Laws of 1933, Ex. Sess.) and has not since been amended.  It provides as follows with respect to the confidentiality of certain records of the state liquor control board.

            "All records whatsoever of the board showing purchases by any individual of liquor shall be deemed confidential, and, except subject to audit by the state auditor, shall not be permitted to be inspected by any person whatsoever, except by employees of the board to the extent permitted by the regulations; and no member of the board and no employee whatsoever shall give out any information concerning such records and neither such records nor any information relative thereto  [[Orig. Op. Page 2]] which shall make known the name of any individual purchaser shall be competent to be admitted as evidence in any court or courts except in prosecutions for illegal possession of an/or sale of liquor.  Any person violating the provisions of this section shall be guilty of a misdemeanor."  (Emphasis supplied.)

            The other statute referred to in your letter is RCW 82.32.110.  This statute (first enacted in 1935,1/ reenacted in 1961,2/ and last amended in 1975)3/

            "The department of revenue or its duly authorized agent may examine any books, papers, records, or other data, or stock of merchandise bearing upon the amount of any tax payable or upon the correctness of any return, or for the purpose of making a return where none has been made, or in order to ascertain whether a return should be made; and may require the attendance of any person at a time and place fixed in a summons served by any sheriff in the same manner as a subpoena is served in a civil case, or served in like manner by an agent of the department of revenue.

            "The persons summoned may be required to testify and produce any books, papers, records, or data required by the department with respect to any tax, or the liability of any person therefor.

            "The director of the department of revenue, or any duly authorized agent thereof, shall have power to administer an oath to the person required to testify; and any person giving false testimony after the administration of such oath shall be guilty of perjury in the first degree.

            "If any person summoned as a witness before  [[Orig. Op. Page 3]] the department, or its authorized agent, fails or refuses to obey the summons, or refuses to testify or answer any material questions, or to produce any book, record, paper, or data when required to do so, he shall be guilty of contempt, and the department shall thereupon institute proceedings in the superior court of Thurston county, or of the county in which such person resides, to punish him as for contempt of court."

            To the extent that these two statutes are in conflict it is our opinion that the provisions of the former, RCW 66.16.090, must prevail.  See, e.g.,People v. Breyer, 139 Cal.App. 547, 34 P.2d 1065 (1934), in which the rule was stated as follows:

            "It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.  Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication. . . ."

            In this case RCW 66.16.090 is the "special" statute and RCW 82.32.110 the "general" statute because RCW 66.16.090 specially addresses itself to particular records (those relating to liquor purchases by individuals) while RCW 82.32.110 encompasses records, generally.  But is equally important in dealing with your question to discern the precise scope of this special statute at the present time.

            It is axiomatic that in determining the legislative intent, the first resort of the courts is to the context and subject matter of the legislation because the intention of the lawmakers is to be deduced, if possible, from what they said.  Hatzenbuhler v. Harrison, 49 Wn.2d 691, 306 P.2d 745 (1957), and cases cited therein.  Moreover, where the language of a statute is plain and unambiguous there is no room for construction since the meaning of such a statute will be discerned from the wording of the law itself.  State v. Houck, 32 Wn.2d 681, 203 P.2d 693 (1949).

             [[Orig. Op. Page 4]]

            From the plain language of RCW 66.16.090 we see that the legislature's concern in enacting it was with the confidentiality of liquor purchase records involving "any individual purchaser."  While the word "individual" is not expressly defined in the liquor code (Title 66 RCW), it is defined by implication in RCW 66.04.010(21) which says the word "person" means ". . . an individual, copartnership, association, or corporation."4/   This also accords with the usual usage of the term.5/   Thus the word "individual" indicates a single or private person ‑ as distinguished from a ". . . copartnership, association, or corporation."

            From this it follows that insofar as the relationship between RCW 82.32.110,supra, and RCW 66.16.090 is concerned, the authority of the department of revenue under the former to subpoena records is sufficient to enable it to obtain liquor board records showing sales to persons other than "individual purchasers" (i.e., corporations, copartnerships or associations of one kind or another) and the liquor board and its employees are not precluded by the latter statute, RCW 66.16.090, from honoring such a subpoena or otherwise responding to questions by the department of revenue regarding such records.  Only those records pertaining to purchases by individuals (whether for resale as class H licensees under RCW 66.24.420-66.24.450 or for personal use or consumption)6/ are beyond the reach of such a subpoena even if full effect is given to the literal terms of RCW 66.16.090 as above quoted on pages 1-2 of this opinion.  There remains, however, another issue to be resolved because of the more recent enactment of a third law not specifically mentioned in your request.

            Without a doubt the records involved are such as to constitute public records under the terms of chapter 42.17 RCW, the public disclosure law which originated several years ago (in 1972) as Initiative No. 276.  As defined in RCW 42.17.020(26) a "public record" is

            ". . . any writing containing information relating to the conduct of government orthe performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."  (Emphasis supplied.)

             [[Orig. Op. Page 5]]

            RCW 42.17.260 then provides that:

            "(1) Each agency, in accordance with published rules, shall make available for public inspection and copying all public records."7/

            This statute, however, goes on to provide that:

            "To the extent required to prevent an unreasonable invasion ofpersonal privacy, an agency shall delete identifying details when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing."  (Emphasis supplied.)

            In addition, RCW 42.17.330 states that:

            "The examination of any specific public record may be enjoined if, upon motion and affidavit, the superior court for the county in which the movant resides or in which the record is maintained, finds that such examination would clearly not be in the public interest and would substantially and irreparably damage any person, or would substantially and irreparably damage vital governmental functions."

            Finally, and most importantly, RCW 42.17.920, codifying § 47 of the initiative, sets forth the following directions regarding the construction and operation of the law:

            "The provisions of this act are to be liberally construed to effectuate the policies and purposes of this act.  In the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern."  (Emphasis supplied.)

            What this means, obviously, is that in determining the scope of RCW 66.16.090,supra, we may no longer be content to look only to the language of that statute itself.  Now, because of Initiative No. 276, we must also be concerned with the pertinent provisions of this new public disclosure law as well in order to ascertain whether, and to what extent, the literal wording of the 1933 liquor act's preexisting confidentiality section is in conflict with the new law.  To the extent that the prior law purports to preclude the disclosure of more of the  [[Orig. Op. Page 6]] content of records of liquor purchases than is exempt from public examination under the initiative, the earlier law must be deemed to have been impliedly amended by the later one.8/

             In the light of the several sections of the public disclosure law that we have quoted above, the basic questions to be considered in establishing the impact of that law on the records here at issue are, we think, as follows:

            (1) Will the disclosure to the department of revenue of the particular information with which we are here concerned, regarding taxpayers' liquor purchases for resale, result in ". . . an unreasonable invasion of personal privacy. . ."?9/

             (2) Will such disclosure ". . . substantially and irreparably damage vital governmental functions"?10/

             The answer to the second of these two questions seems to us apparent.  Clearly, the drafters' choice of the word "vital" must be given due respect.  As contrasted to the word "important," a rather obvious alternate choice, "vital" is suggestive of the phrase "matter vital to the national security" which is used in Webster's Third New International Dictionary (1971) to help convey the usual meaning of this word.  Other phrases used by Webster's to define the meaning of the word "vital," as used in this context, are "essential to the continued existence" and "taking priority in consideration over other factors or elements."  By comparison the word "important," according to the same authority, means merely "valuable in content or relationship . . . significant."  Bearing this  [[Orig. Op. Page 7]] distinction in mind, and without speculating as to what might constitute information the disclosure of which would do irreparable damage to vital governmental functions, we cannot conceive of the purchase records of legitimately regulated taxpayers who sell liquor by the drink pursuant to class H licenses under RCW 66.24.420-66.24.450 as being among them, particularly where the requesting authority is another agency of the same government.

            As far as the question of a possible right of personal privacy violation is concerned, we must in approaching this question note, once more, that the public disclosure act does notitself purport to create any rights of privacy; instead, it merely recognizes such rights as exist under other laws or legal principles.  Accord, AGO 1973 No. 4 [[to Robert E. Schillberg, Prosecuting Attorney, Snohomish County on January 19, 1973]], copy enclosed.  Those rights are derived chiefly from the federal and state constitutions and statutes.

            With respect to the former, we do not believe that either an individual or a corporate purchaser of liquor could successfully invoke any consititutionally based right of privacy to prevent the liquor board from disclosing its records of purchases to the department of revenue in response to a subpoena issued under RCW 82.32.110,supra.  See, e.g.,Kinnear v. Hertz Corp., 86 Wn.2d 407, 418,     P.2d.     (1976), in which our supreme court, in rejecting a similar argument, said that:

            ". . .  An inquiry [by Multistate Tax Compact auditors] would not be an unreasonable search and seizure as long as it is within the authority of the agency, not too indefinite, and reasonably relevant. . . ."11/   (Emphasis supplied.)

            Were it appropriate to apply this same test here we believe it could fairly be said that the department of revenue, in seeking the records in question, was (a) properly exercising its administrative subpoena authority; (b) was, or could be, sufficiently definite in delineating the nature of the information sought; and (c) was seeking information which is obviously relevant (in helping to determine sales volume) to the issue of a retail seller's liability with respect, particularly, to the state retail sales tax.  However, the constitutional issue raised in Hertz is not even reached where the taxpayer has already voluntarily, as a requirement of continuing in business, submitted the information to another state agency.  The records which are here involved belong to the liquor board; they are not the private papers of the taxpayer.  RCW 66.16.090,supra.  Accordingly, we find no constitutionally based right of privacy which would protect those records against examination by another state agency charged with enforcing tax laws relating  [[Orig. Op. Page 8]] to the same activities which the liquor board regulates.

            This brings us back to RCW 66.16.090 itself ‑ the liquor code confidentiality provision ‑ for the only statutory provision we have found which would appear to establish a right of privacy, vis-a-vis the public disclosure act, with respect to the records in question, is that section of the liquor code.  But as we have seen, however, in accordance with the directive of RCW 42.17.920,supra, that statute must now be read in a manner that is not in conflict with the public disclosure act as we have described its (here) pertinent provisions earlier in this opinion.

            In analyzing the key language of RCW 66.16.090 as it was originally enacted by the 1933 legislature, we noted in passing, at p. 4 above, the absence of any distinction within the four corners of that statute between purchases of liquor by individuals (a) for resale as class H licensees under RCW 66.24.420-66.24.450 or (b) for personal use or consumption.  While the statute has never purported to inhibit the release of liquor board records concerning purchases by corporations or the like, including those engaged in the business of selling liquor by the drink pursuant to class H liquor licenses, its literal terms to cover "individual purchasers" engaged in that business as well as those purchasing for their own use.  To that extent, at least, a conflict between this liquor code confidentiality statute and the disclosure requirements of Initiative No. 276 would appear to us to exist.  Or, to state the same point in another way, it would seem to us that if RCW 66.16.090 is viewed as providing any basis for a valid claim of a right of "personal privacy" within the meaning of the public disclosure act (and particularly, RCW 42.17.260(1),supra) ‑ a question which, for reasons explained in AGO 1973 No. 4,supra, only the courts can decide on a case‑by-case basis ‑ that right extends only to information pertaining to liquor purchases for personal comsumption or use and not to such purchases for resale by the drink by class H licensees.  Any other reading of the liquor code provision would be contrary to both the letter and the spirit of the public disclosure law as we view it for it would cause the concept of personal privacy to encompass not only those public records indicative of an individual's own drinking habits or the like but those relating to the stock in trade of a regulated commercial enterprise as well.

                        SUMMARY

            In summary, then, it is our opinion that RCW 66.16.090, read in the light of Initiative No. 276, does not now prohibit the liquor control board or its employees from disclosing the identity of, or permitting examination of its records regarding  [[Orig. Op. Page 9]] liquor sales to, purchasers of liquor for resale by the drink under RCW 66.24.420-66.24.450.  Therefore, the contents of those records may properly be disclosed to the department of revenue in response to an administrative subpoena issued pursuant to RCW 82.32.110 and such action will not be violative of the protective provisions of RCW 42.17.260.12/   We thus answer your question (as stated at the outset of this opinion) in the negative.