August 4, 2011
OFFICE OF THE BUDGET, PETITIONER
SIMON CAMPBELL, RESPONDENT
The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge
Submitted: January 21, 2011
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION BY SENIOR JUDGE FRIEDMAN*fn1
The Office of the Budget (OB) petitions for review of the July 29, 2010, order of the Office of Open Records (OOR), which required the OB to release to Simon Campbell under the Right-to-Know Law (RTKL)*fn2 the W-2 forms of all current and former employees of the OOR, redacting all information except the name of the employer, the name of the employee and the State Employees' Retirement System (SERS) contribution. We reverse.
Campbell submitted a right-to-know request to the OB, seeking copies of the 2009 W-2 forms issued and sent by the OB to all current and former employees of the OOR, subject to any redactions. The OB denied the request because federal law and state law make tax returns and tax return information confidential and prohibit their disclosure. The OB advised Campbell that the OB had filed the requested W-2 forms with the Internal Revenue Service (IRS) under section 6041(a) of the Internal Revenue Code, 26 U.S.C. §6041 (requiring persons engaged in business to file information returns, in the form and manner prescribed by the Secretary, to report payments of income to other persons).
Campbell appealed to the OOR, challenging the OB's denial of his request only with respect to the boxes on the W-2 containing the employer's name and address, the employee's name and address and the SERS contribution. For the most part, the OOR ruled in favor of Campbell. The OOR stated that, in prior cases, it had determined that W-2 forms are public records subject to release. However, this court has enjoined the release of employee home addresses. See Pennsylvania State Education Association ex rel. Wilson v. Department of Community and Economic Development, 981 A.2d 383 (Pa. Cmwlth. 2009), aff'd, 606 Pa. 638, 2 A.3d 558 (2010). Thus, the OOR directed the OB to release the requested W-2 forms, redacting all information except the name of the employer, the name of the employee and the SERS contribution. The OB now petitions this court for review.*fn3
The OB argues that federal law makes tax returns and tax return information, including W-2 forms, confidential and prohibits their disclosure.*fn4 We agree.
Section 6103(a) of the Internal Revenue Code provides, in pertinent part, as follows:
(a) General rule. - Returns and return information shall be confidential, and except as authorized by this title -
(2) no officer or employee of any State . . . shall disclose any return or return information obtained by him in any manner . . . 26 U.S.C. §6103(a) (emphasis added). Section 6103(b) of the Internal Revenue Code defines "return" and "return information," in pertinent part, as follows:
(1) Return. The term "return" means any tax or information return. . . required by . . . the provisions of this title which is filed with the Secretary by . . . any person . . . including supporting . . . attachments . . .
(2) Return information. The term "return information" means -
(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits . . . tax withheld . . . or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return . . . 26 U.S.C. §6103(b) (emphasis added).
Here, the OB "filed with the Secretary" information returns that included W-2 forms and thereby "furnished to . . . the Secretary" the return information appearing on the W-2 forms. Thus, the W-2 forms fall within the definitions of "return" and "return information"; as such, they are confidential and cannot be disclosed. Because W-2 forms are exempt from disclosure under federal law, they are not public records under the RTKL.*fn5 As to whether the OOR could allow the release of redacted W-2 forms, in Church of Scientology v. Internal Revenue Service, 484 U.S. 9, 14-15 (1987), the United States Supreme Court held that the returns themselves are protected from disclosure and, thus, could not be released with redactions.
Accordingly, we reverse.*fn6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Office of the Budget, Petitioner v. Simon Campbell, Respondent
No. 1745 C.D. 2010
AND NOW, this 4th day of August, 2011, the order of the Office of Open Records, dated July 29, 2010, is hereby reversed.
ROCHELLE S. FRIEDMAN, Senior Judge