Can a Virginia county fund volunteer fire and rescue squads that aren't IRS nonprofits, where does a treasurer have to keep records, and can a county attorney release delinquent tax data under FOIA?

Plain-English summary

The Accomack County Treasurer asked three questions. The AG addressed each in turn.

Funding fire departments and rescue squads. Citizens had questioned whether the County could pay companies that had lost their IRS nonprofit status (for not filing Form 990) or that compensated their members. The AG identified two statutory paths. Section 15.2-953 lets a locality make gifts and donations to associations or organizations furnishing voluntary firefighting services and to nonprofit lifesaving crews or rescue squads. But § 27-23.1 was the broader path: localities can designate fire and EMS zones and "contract with, or secure the services of, any individual corporation, organization or municipal corporation, or any volunteer fire fighters or emergency medical services personnel" for those services. The opinion read that language as not limited to volunteer companies, not requiring IRS nonprofit status, and not requiring members to serve without compensation. So the appropriations could be proper regardless of nonprofit status or compensation arrangements.

Treasurer records. The Virginia Public Records Act governs. Current public records "should be kept in the buildings in which they are ordinarily used," which for a treasurer means where the treasurer's office is located. The Records Act directs the Library of Virginia (LVA) to establish procedures for managing public records, and all agencies holding public records, including constitutional officers, must comply with applicable LVA retention and disposition schedules. For county treasurers, the LVA has issued General Schedule GS-28, which lists the retention period and disposition method for the various record types.

Delinquent tax info under FOIA. A FOIA request had been made to the County Attorney, who released a taxpayer's delinquent tax information to that same taxpayer. The AG's reading: FOIA generally requires that public records be open to inspection and copying, but it excludes from disclosure state income, business, and estate tax returns, personal property tax returns, and confidential records held under § 58.1-3. Section 58.1-3(A) makes it a Class 2 misdemeanor for a state or local tax or revenue officer or employee to divulge information acquired in the performance of his duties about a person's transactions, property, income, or business. The opinion notes this Office had previously clarified that the identity of a delinquent taxpayer is releasable, but the amount of the tax delinquency may not be disclosed. So a county office (including a county attorney) in possession of delinquent tax information that is not excluded by law has a duty to produce it under FOIA, but information whose disclosure is prohibited by § 58.1-3 may not be released.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does a fire or rescue company really lose its eligibility for county funds if it loses 501(c)(3) status?
Not under § 27-23.1. The opinion said the broader statutory authority for fire and EMS zone contracts isn't tied to IRS nonprofit status. Section 15.2-953 speaks to voluntary firefighting and nonprofit rescue services, but § 27-23.1 is not limited that way.

Can volunteer firefighters be paid and still qualify under § 27-23.1?
Yes. The statute doesn't condition the locality's authority on the firefighters being unpaid. The opinion explicitly said § 27-23.1 doesn't require members to serve without compensation.

Where exactly should a county treasurer keep records?
In the building where the treasurer's office is located. The Public Records Act provides that current public records should be kept in the buildings in which they are ordinarily used.

How long does a treasurer have to keep records?
According to whatever the Library of Virginia's records retention and disposition schedule (General Schedule GS-28) requires for the particular record type. Different categories have different retention periods, and the opinion concludes the treasurer should abide by that schedule in retaining and disposing of records.

If a journalist files a FOIA request about delinquent taxpayers, what gets released?
Under the prior AG guidance referenced here, the identity of the delinquent taxpayer is releasable, but the amount of the tax delinquency may not be disclosed. Section 58.1-3's confidentiality provision controls on the amount.

Background and statutory framework

Section 27-23.1 lets localities designate fire and EMS zones and contract with or secure the services of any provider for those services. Section 15.2-953 permits gifts and donations to organizations furnishing voluntary firefighting services and to nonprofit lifesaving crews or rescue squads. Together they give localities broad funding authority for fire and rescue services.

The Virginia Public Records Act applies to all public officers, including constitutional officers. Current public records should be kept in the buildings in which they are ordinarily used. The Records Act directs the Library of Virginia to establish procedures and techniques for managing public records, and all agencies holding public records must comply with applicable LVA retention and disposition schedules; for county treasurers, that schedule is General Schedule GS-28.

FOIA provides that, except as otherwise specifically provided by law, all public records are open to inspection and copying by citizens during the custodian's regular office hours, and that its provisions are liberally construed in favor of disclosure with exemptions narrowly construed. The opinion notes the Supreme Court of Virginia has acknowledged a general presumption in favor of releasing public records. FOIA nonetheless excludes state income, business, and estate tax returns, personal property tax returns, and confidential records held under § 58.1-3; § 58.1-3(A) makes unauthorized disclosure by a tax or revenue officer a Class 2 misdemeanor. Constitutional officers count as "public bodies" under FOIA.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 15.2-953 (gifts and donations to firefighting/rescue organizations)
• Va. Code § 27-23.1 (fire and EMS zones; contracts for services)
• Va. Code § 58.1-3 (tax secrecy provision; Class 2 misdemeanor for disclosure)
• Prior AG opinion (referenced; delinquent-taxpayer identity releasable, amount not)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-052_Bundick.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 26, 2013

The Honorable Dana T. Bundick
Treasurer, County of Accomack
Post Office Box 296
Accomac, Virginia 23301

Dear Ms. Bundick:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You present several distinct questions concerning matters related to your duties as treasurer. First you ask whether Accomack County ("County") can appropriate funds to certain fire departments and rescue squads, specifically companies that allegedly have lost non-profit status for failure to file Form 990 with the Internal Revenue Service ("IRS") and companies that allegedly provide compensation to individual members. You then ask, in the event a particular company is ineligible to receive such funds, how you are to respond to your board of supervisors if it directs you to provide funds to the company in question. Next, you seek guidance regarding the proper storage of treasurers' records: you specifically inquire who is responsible for their storage, and where and for how long the records should be stored. Finally, you inquire whether other County offices have the authority to release delinquent tax information.

Response
It is my opinion that a Virginia locality may provide appropriations to certain organizations providing fire or emergency medical services regardless of their classification as IRS non-profit entities and regardless of whether they provide compensation to individual members. It is further my opinion that a county treasurer's records must be located in the same building as that county treasurer's office, and that the county treasurer should maintain, store, and retain his records in accordance with the disposition schedule established for treasurers by the Library of Virginia ("LVA"). Finally, it is my opinion that, to the extent that other county offices are in possession of public records, such county offices may be required to produce information contained in these records pursuant to the Virginia Freedom of Information Act ("FOIA").

Background
Your first inquiries arise from matters brought to your attention by an association of concerned citizens. The association first questions the eligibility of certain fire departments and rescue squads to receive County monies obtained through property taxation. In a document you provide, the association expresses concern that a company that allegedly lost its non-profit tax status due to a failure to file Form 990 with the IRS and another company that allegedly provided compensation to individual members of the department may not be entitled to such funds. The concern focuses on the charitable status of such organizations. Your questions regarding the storage and retention of treasurers' records stem from another document you provide, in which the association outlines its concerns regarding records preservation. With respect to your final inquiry, you report that the County Attorney, in response to a FOIA request, released a taxpayer's personal delinquent tax information to that same taxpayer. You question whether the County Attorney, as well as other County offices, possess the authority to release such delinquent tax information.

Applicable Law and Discussion

I. Appropriations to Fire Departments and Rescue Squads

"In Virginia, the powers of [county] boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary implication." As one of the documents you provide notes, local governments expressly are authorized pursuant to § 15.2-953 to "make gifts and donations of property, real or personal, or money, to ... any association or other organization furnishing voluntary fire-fighting services" as well as "any nonprofit lifesaving crew or lifesaving organization, or rescue squad, within or outside the boundaries of the locality . . . ." Thus, to the extent an organization provides voluntary fire-fighting services or constitutes a non-profit rescue squad, it is eligible to receive funds from the local governing body.

Nonetheless, and irrespective of the authority granted under § 15.2-953, the General Assembly has provided another method for appropriating money to organizations providing local fire or emergency medical services. Specifically, § 27-23.1 of the Code of Virginia authorizes local governments to designate geographical fire and emergency medical services ("EMS") zones or districts, within which fire and EMS departments may operate. The statute further allows a locality that has created such zones or districts to "contract with, or secure the services of, any individual corporation, organization or municipal corporation, or any volunteer fire fighters or emergency medical services personnel for such fire or emergency medical services protection as may be required." Although the locality may utilize the services of volunteer companies, the authority afforded under the plain language of this provision is not limited to their use. Moreover, the statute does not require that an organization providing fire or emergency medical services maintain a non-profit status for the purposes of the IRS or that its members serve without compensation. Accordingly, such an organization is eligible to receive appropriations from the County consistent with an agreement entered into under § 27-23.1.

II. Records Storage and Retention

"[T]o establish a single body of law applicable to all public officers ... [for] public records management and preservation . . . [,]" the General Assembly enacted the Virginia Public Records Act ("Records Act"). The Records Act provides, with respect to where records used in the transaction of business should be located, that "[c]urrent public records should be kept in the buildings in which they are ordinarily used." Thus, a treasurer's records should be stored where his offices are located.

The Records Act further directs the Library of Virginia ("LVA") to "establish procedures and techniques for the effective management of public records." All agencies, including constitutional officers, holding public records are required to comply with any applicable LVA records retention and disposition schedules. The LVA, in General Schedule No. GS-28, has issued a records retention and disposition schedule applicable to county treasurers. This schedule comprehensively lists the retention period and disposition method for various types of records. I therefore conclude that a treasurer should abide by this schedule in retaining and disposing of his records.

III. Disclosure of Delinquent Tax Information

FOIA provides that "[e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records." FOIA further requires that:

[t]he provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld ... to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

The Supreme Court of Virginia has acknowledged that the policy behind FOIA is to promote the disclosure of public records, and that there is a general presumption in favor of the release of such information.

Nonetheless, FOIA expressly excludes from disclosure "[s]tate income, business, and estate tax returns, personal property tax returns ... and confidential records held pursuant to § 58.1-3." Pursuant to § 58.1-3(A), it is a Class 2 misdemeanor for any "state or local tax or revenue officer or employee ... [to] divulge any information acquired by him in the performance of his duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation." This Office previously has clarified that although the identity of a delinquent taxpayer is releasable, the amount of the tax delinquency may not be disclosed.

Finally, "public records" are defined for purposes of FOIA as "all writings and recordings ... prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." FOIA defines a "public body" in part as "any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, [and] governing bodies of counties" and specifies that constitutional officers also are considered "public bodies" for the purposes of FOIA. Therefore, to the extent that a "public body," or any of its officers, employees or agents, including a county attorney, is in possession of delinquent tax information not excluded from disclosure by law, the public body or person has a duty to produce such information. If, on the other hand, disclosure of particular information is prohibited by § 58.1-3, then it may not be released by the official or employee possessing it.

Conclusion
Accordingly, it is my opinion that: (1) localities may secure and provide funding for the services of an organization providing fire or emergency medical services irrespective of whether such an organization is an IRS non-profit entity or if its members serve without compensation; (2) the records of a county treasurer must be located in the same building as that county treasurer's office, and such records must be retained according to the LVA's records retention and disposition schedules applicable to county treasurers; and (3) a county attorney in possession of delinquent tax information that is not excluded from disclosure under FOIA is responsible for producing such information pursuant to a relevant FOIA request, except as provided for in § 58.1-3.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General