Local Property Tax Information: Public or Not?
In recent months, New Hampshire Town and City articles have examined aspects of New Hampshire’s Right to Know Law and other state laws and regulations that require certain information to be made public or kept confidential.
Many of the questions we receive involve the confidentiality of local property tax information. While much of that information is public, there are a few important exceptions of which local officials should be aware.
Q. Our town received a request for documents under RSA 91-A. A citizen asked for lists of all properties being taxed in town with the amount of tax for each, all people and properties in town that receive tax exemptions, current use treatment, and abatements (with the amounts and the reasons). What do we do?
A. First, look at the request under the RSA Chapter 91-A standard to see if it is a governmental record. A “governmental record" is any information created, accepted or obtained by or on behalf of any public body … or any public agency in furtherance of its official function. RSA 91-A:1-a, III. Records of information that the town generates about property tax assessments, exemptions, abatements, credits, etc. are all governmental records.
Q. Okay, they are governmental records. Do I have to disclose them?
A. Well, maybe. Generally speaking, all governmental records are subject to disclosure under RSA 91-A:4 unless they fall within one of the categories listed in RSA 91-A:5. That section provides that records do not have to be disclosed if they pertain to “confidential, commercial, or financial information" or to “…other files whose disclosure would constitute invasion of privacy." RSA 91-A:5, IV. Very briefly, to determine whether information is confidential and its disclosure would constitute an invasion of privacy, we look at (1) whether the person has a privacy interest in their own information, (2) whether the public can learn anything from this information about how the government works and (3) balance the privacy interest, if any, against the benefit to the public of releasing the information. Lamy v. NH PUC, 152 N.H. 106 (2005).
In this case, records about tax exemptions, abatements and credits may contain some information that is public and some that is confidential under this statute. For example, an abatement request may be granted based on poverty. The applicant has a privacy interest in that information, which probably outweighs the public’s right to know under RSA Chapter 91-A. In this situation, public officials have to look at all the information on each page or electronic file and decide which parts have to be removed (“redacted"). Everything else should be disclosed as requested—unless, of course, another statute prevents disclosure.
Q. If a document is not confidential under RSA 91-A, is it safe to disclose it?
A. No, because it might be confidential under another statute. Each tax exemption, credit, abatement and reduction in assessment is governed by a specific statute. Some of those statutes prohibit the release of information. The best way to work through these issues is to look at each category of tax information separately.
Q. Well, let’s start with lists of properties taxed in our town and the amount of tax. Can we release that information?
A. Generally, yes. RSA 76:7 requires selectmen to create a record of all taxes assessed and to make the list available either at their office, or if it is not open five days a week, to make an additional copy available with the town clerk within 30 days after the tax rate is approved by the Department of Revenue Administration (DRA). This record “shall be open to all persons." The record must include (a) the inventory of taxable property prepared under RSA 75:4, (b) the property record (owner’s name, map and lot number, and acreage), and (c) the amount of taxes assessed. In addition, if the selectmen’s office is not open five days a week, they must also prepare a list of all owners of property not exempt under RSA 72:23 (governmental, religious, educational and charitable exemptions), with the addresses and assessed value of each parcel. This list must be posted in a public place. RSA 76:7-a.
Therefore, any of the information required by these sections to be on the public list would be considered public information that is not exempt from disclosure, at least under tax laws.
Q. What about a list of everyone who receives abatements, along with the reasons and amounts?
A. That is more complicated. RSA 76:20 requires a town to note abatements on the record of taxes assess-ed. Therefore, to the extent that the fact of an abatement is a piece of information that must be included in the public record of taxes assessed under RSA 76:7, the property, owner and abatement amount would be public information.
It is also clear that, under RSA 76:16, III(h), towns must treat social security and federal tax identification information (sometimes submitted with an abatement request) to be treated as “confidential and exempt from information requests under RSA 91-A." Therefore, SSN/EIN identification information should not be disclosed. However, it is less clear whether the reason for the abatement may be released to the public. That information is not placed on the record of taxes assessed, nor is it required to be assembled into any particular list. Thus, even if the information is public, the town is not required to compile that information in a list, so the person requesting it might be required to look at each separate tax record to find it.
Selectmen may enter a nonpublic session to address a request for tax abatement based upon poverty or inability to pay, and the minutes of that nonpublic session may be sealed if that information would adversely affect someone’s reputation. RSA 91-A:3, II(c) and III. Therefore, it seems likely that when the reason is inability to pay or poverty, the reason might well be considered “confidential" information, which should be analyzed under the three-part Lamy test described above and ultimately found not discloseable.
On the other hand, other reasons for which an abatement might be granted, such as disproportionate assessment, do not seem to be confidential or protected under any other law. Therefore, the documents reflecting that information should be released if someone requests them. One possible exception may be rent rolls (lists of tenants and monthly rental payments) for commercial buildings. On occasion, landlords request that the town maintain that information as confidential, and there is an argument to do so in that it constitutes “commercial or financial" information that is exempt from disclosure under RSA 91-A:5, IV.
Q. Are there any confidentiality issues under the Current Use law?
A. No. RSA 79-A:5, IV requires municipal officials to create a list of all current use lands and their owners. This list is part of the invoice that goes into the public record of taxes assessed and is subject to public inspection as provided in RSA 76:7. Therefore, this information should be released to the public upon request.
Q. What about the elderly exemption?
A. According to RSA 72:40-b, the names of the people who receive an elderly exemption under RSA 72:39-b may not be printed in any list for publication, with one exception. Under RSA 74:2, selectmen must prepare a separate inventory of property and buildings that would be taxable but for “the tax exemption laws of this state." Therefore, a list of exempt properties must be prepared, and is apparently public, but the law doesn’t require that the list include the owners’ names or the specific exemption.
There is another complication under RSA 72:39-a, which lists the eligibility requirements for the elderly exemption. Applicants must include income and asset information, and selectmen may request this information, so that selectmen can determine whether applicants do not exceed the eligibility limitations. However, these documents and any copies “shall be considered confidential, handled so as to protect the privacy of the individual, and not used for any other purpose" except to verify eligibility. All documents and copies must be returned to the applicant after a decision has been made. RSA 72:34, II. Therefore, all information verifying an applicant’s income and assets should be treated as confidential and not disclosed.
Q. Do the same restrictions apply to the elderly deferral?
A. Unlike the elderly exemption statute, the elderly deferral statute itself (RSA 72:38-a) does not classify any information as confidential. However, since eligibility for the deferral is subject to income and asset limitations, all documents requested to verify income and assets are covered by the same confidentiality requirement of RSA 72:34, II as for the elderly exemption. Specifically, any documents and information given to the selectmen for them to verify income and asset levels must be treated as confidential, handled to protect the privacy of the applicant, not used for any other purposes, and returned to the applicant once a decision on the application has been made.
Q. Is any of the information regarding exemptions for disabled persons, improvements to assist disabled persons, or deaf/hearing impaired persons confidential?
A. None of the statutes regarding those exemptions provides that any particular information must be kept confidential. However, since eligibility for the exemptions for disabled persons under RSA 72:37-b and for deaf/hearing impaired persons under RSA 72:38-b is subject to income and asset limitations, all documents requested to verify income and assets are covered by the same confidentiality requirement of RSA 72:34, II as for the elderly exemption. Specifically, any documents and information given to the selectmen for them to verify income and asset levels must be treated as confidential, handled to protect the privacy of the applicant, not used for any other purposes, and returned to the applicant once a decision on the application has been made.
Q. There are several credits and exemptions involving veterans. Are they all treated the same way?
A. Yes, as far as the confidentiality of documents goes. The documentation accompanying the application for any of these credits or the exemption should be maintained as confidential. There are three credits regarding veterans: the veterans’ credit (RSA 72:28); the veterans’ surviving spouse credit (RSA 72:29-a); and the disabled veterans’ credit (RSA 72:35). In addition, there is also a disabled veterans’ exemption under RSA 72:36-a. None of these credits or exemption statutes classifies any specific information as confidential, and none of them involves asset or income limitations for eligibility (indicating, on the surface at least) that the confidentiality requirement of RSA 72:34, II does not apply.
However, there are several reasons that application documents should be treated as confidential and returned to the applicant after a decision has been made. Veterans’ credits and exemptions are based in part on the taxpayer’s status as a veteran. One document required to prove that status is the Federal Form DD-214, the official record of separation from the military. This form contains a lot of personal information, including social security number, date and place of birth, and other information. Much of this personal information would be considered “confidential" and not discloseable to the public under RSA 91-A:5, IV (discussed above).
Furthermore, the New Hampshire Department of Revenue Administration’s rules, its application form (Form PA-29) and its worksheet for evaluating applications for these credits and exemption each state clearly that documents submitted in application for any of these credits or exemptions should be treated as confidential and returned to the applicant after a decision has been made. N.H. Code Admin.R. Rev 402.06(b).
Therefore, documentation submitted with these applications should be kept confidential while the municipality has them, and should be returned to the applicant after a decision to grant or deny the credit/exemption has been made.