Privacy of State Employee Personnel Records; Access thereto by Ad Valorem Tax Collector

Subject:

Privacy of State Employee Personnel Records; Access thereto by Ad Valorem Tax Collector;

G.S. 105-368(i); G.S. 126-24(5)

Requested By:

Dr. Sarah T. Morrow, Secretary Department of Human Resources

Question:

May home addresses of State employees be obtained by ad valorem tax collectors pursuant to

G.S. 105-368(i) or does such information remain confidential under G.S. 126-24(5)?

Conclusion:

Home addresses of State employees may be obtained by ad valorem tax collectors pursuant to

G.S.: 105-368(i).
G.S.: 105-368(i)(1) provides in relevant part that any person who refuses to give the tax collector or tax supervisor a list of the names and addresses of all his employees who may be liable for taxes shall be guilty of a misdemeanor. Under G.S. 105-368(i)(2), information so received by the tax collector or tax supervisor may not be divulged to any other person and may not be used for any purpose "not directly related to and in furtherance of the collection and foreclosure of taxes." Violations of this restriction are punishable as misdemeanors.

Within the Machinery Act, there are reasonably distinct substantive differences between the duties and responsibilities of the office of the tax supervisor and that of the office of the tax collector. Thus as set forth in G.S. 105-296, the tax supervisor shall have general charge of the "listing and appraising" of all county property, i.e., the determination of true value and the processes by which true value are ascertained. Based upon the tax supervisor’s valuations, the county within a specified period must set and levy rates of taxes, thus establishing tax liability,

G.S. 105-347, sufficient ot meet governmental needs. Spiers v. Davenport, 263 N.C. 56 (1964).

Thereafter arises the paramount duty of the tax collector, a separate and distinct office from that of tax supervisor, G.S. 105-349 "to employ all lawful means to collect all property, dog, license, privilege, and franchise taxes. . . ." G.S. 105-350.

We perceive no conflict between the statutory authority conferred in the tax collector by G.S. 105-368(i)(1) to secure home addresses of State employees and any confidentiality required by

G.S.: 126-24 with respect to such information being not divulged "for purposes of assisting in a tax investigation." Because the phrase "assisting in a tax investigation" is not defined in Chapter 126, we must construe it witnin the context in which it arises. As ordered by the Machinery Act, all events which are conditions precedent to the creation of a tax liability, valuation, establishment of tax rate, levy, have transpired prior to the first duites of the tax collector. His function is clerical and administrative, not subjective, and he does not possess the authority to question the "tax receipts" delivered to him for collection. G.S. 105-321. All matters of substance establishing or questioning tax liability have already been completed and settled by the tax supervisor or through the various appeal procedures available. Consequently it is our opinion that a request for the home address of a State employee by an ad valorem tax collector pursuant to
G.S.: 105-368(i)(1) does not constitute a request for information for purposes of "assisting in a tax investigation."

As referenced above, G.S. 126-24(5), without regard to its prohibition against tax investigation, permits disclosure if the agency head deems the information request "necessary and essential" to a "proper function" of the requesting official. Manifestly, the tax collector’s sophistication of a home address relevantly relates to his "collection" duties. Given this direct relationship, and the well established presumption in North Carolina that "a public official properly and regularly discharges his duties, or performs acts required by law, in accordance with the law and the authority conferred on him, and that he will not do any act contrary to his official duty or omit to do anything which such duty may require," Huntley v. Potter, 255 N.C. 619, 628 (1961), which regularity of official acts applies to tax proceedings, Henderson County v. Osteen, 297 N.C. 113, 116 (1979), there would appear to repose no discretion in the agency head with which to deny the request from the tax collector.

Our opinion that the home addresses of State employees lose their status of confidentiality in the face of a request for information made pursuant to G.S. 105-368(i)(1) does not mean ipso facto that such data must in every instance be furnished by the personnel officer. G.S. 126-24 is in essence a restrictive exception to the public records provision of Chapter 132 whereunder such records may be "inspected and examined," or copies forwarded upon payment of fees. It is not to be expected that personnel files can or will be arranged and maintained in a manner which will always be consistent with public inspection given the inevitable presence of other material therein that must remain confidential. Therefore public inspection and access, including the mode of inspection granted a tax collector under G.S. 105-368(i)(1) is not authorized where the integrity of other confidential information would be jeopardized.

Nor do we advise that it is within the contemplation of the G.S. 126-24(5) and G.S. 105-368(i)(1) that burdensome, disruptive requests for information need be fulfilled. Pre-existing lists of home addresses, or those readily obtainable, must be furnished to the tax collector. But if the solicitation of home addresses would require inordinate time-consuming compilation, constituting a significant disruption of the normal business activities of the State agency, we believe the orderly performance of the State’s business supersedes any duties imposed by G.S. 105-368(i)(1) and thus information requests of this magnitude may go unfulfilled. This determination, however, can only be made upon an ad hoc basis based upon the exercise of reasonable discretion by the appropriate State official.

RUFUS L. EDMISTEN Attorney General

George W. Boylan Assistant Attorney General