Could California disclose summary timber-sales data derived from confidential tax reports?

Plain-English summary

In 2002, California's Attorney General concluded that the State Board of Equalization could publicly disclose staff-compiled statistics about timber and log sales if the information was source-neutral and did not identify, or make ascertainable, specific transactions or parties. The opinion distinguished those staff-created summaries from information timber owners supplied to the board, which the Timber Yield Tax Law protected as confidential.

The AG reasoned that the confidentiality provision aimed to protect owners' business information and encourage accurate reporting. Releasing statistics that did not expose an owner, transaction, or business operation would preserve that purpose. The conclusion was conditional on the summaries actually preventing identification of the underlying parties and deals.

Currency note

This opinion was issued in 2002. 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

Could the board publish a timber owner's individual sales report? The opinion did not authorize that. It addressed staff-created summary data that could not identify or make ascertainable individual owners or transactions.

Did deriving a statistic from confidential reports make it confidential? The AG concluded that the cited prohibition did not cover source-neutral staff statistics when the underlying parties and transactions could not be identified.

What was the controlling disclosure condition?
The summaries could not identify or make ascertainable a specific timber or log sale or the parties to it.

Background and statutory framework

The State Board of Equalization asked about its staff's statistical schedules for timber and log transactions. The AG examined Revenue and Taxation Code section 38705, which protected information about timber owners' business affairs, and section 38204, which required estimates of timber value. The office found that the confidentiality purpose was satisfied if the board withheld owner-furnished business information while releasing genuinely source-neutral summaries.

Citations and references

• Official citation: 85 Ops.Cal.Atty.Gen. 141.
• The opinion interpreted Revenue and Taxation Code section 38705 in the Timber Yield Tax Law.

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/01-901.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General

OPINION
of
BILL LOCKYER
Attorney General
ANTHONY S. Da VIGO
Deputy Attorney General

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No. 01-901
July 25, 2002

THE STATE BOARD OF EQUALIZATION has requested an opinion on the following question: May the State Board of Equalization publicly disclose information that its staff has compiled regarding timber and log sales transactions if the information is provided in a source-neutral, summary fashion that does not identify or make ascertainable specific timber or log sales transactions or the parties involved in such transactions? CONCLUSION The State Board of Equalization may publicly disclose information that its staff has compiled regarding timber and log sales transactions if the information is provided in a source-neutral, summary fashion that does not identify or make ascertainable specific timber or log sales transactions or the parties involved in such transactions.

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ANALYSIS
The State Board of Equalization (“Board”) is responsible for the administration and enforcement of the Timber Yield Tax Law (Rev. & Tax Code, §§ 38101-38908; see 61 Ops.Cal.Atty.Gen. 391 (1978)).1 Under this statutory scheme, standing timber is subject to tax at the time of harvest based upon its “immediate harvest value,” defined as “the amount that each species or subclassification of timber would sell for on the stump at a voluntary sale made in the ordinary course of business for purposes of immediate harvest.” (§ 38109; Cal. Code Regs., tit. 21, § 1023.) In order to calculate the immediate harvest values, the Board is required to “estimate the immediate harvest values of each species or subclassification of timber” located within designated “timber value areas” every six months. (§ 38204, subd. (a).) In preparing estimates of timber values, the Board’s staff first compiles statistical data based upon information it receives from timber owners and other knowledgeable persons regarding timber and log sales transactions. The question presented for analysis is whether the statistical schedules prepared by the Board’s staff, which do not identify or make ascertainable specific timber or log sales transactions or the parties involved in such transactions, may be disclosed to the public. We conclude that such data created by the staff may be disclosed. The statute requiring our interpretation is section 38705, which provides: “Except as provided in Sections 38402 and 38706, it is unlawful for the board or any person having an administrative duty under this part to make known in any manner whatever the business affairs, operations, or any other information pertaining to any timber owner or any other person required to report to the board or pay a tax pursuant to this part, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any return, or to permit any return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person. However, the Governor may, by general or special order, authorize examination by other state officers, by tax officers of another state, by the federal government, if a reciprocal arrangement exists, or by any other person of the records maintained by the board under this part. The information so obtained pursuant to the order of the Governor shall not be made public except

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All references hereafter to the Revenue and Taxation Code are by section number only.

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to the extent and in the manner that the order may authorize that it be made public.”2 Examining the language of section 38705, we find that the Governor may authorize public disclosure of the information received by the Board from timber owners. Also, as we have previously pointed out (61 Ops.Cal.Atty.Gen., supra, at p. 393, fn. 2), the timber owners may waive the confidentiality provisions of section 38705 with respect to the information they furnish to the Board. However, that is not the information which is the subject of our discussion. It is only statistical data developed by the Board’s staff that is proposed to be released to the public. The staff’s data does not identify or make ascertainable the timber owners or their timber sales transactions. Does the prohibition of section 38705 apply to such data created by the Board’s staff, or is it limited to information furnished by the timber owners concerning their business affairs? To answer this question, we apply well recognized principles of statutory construction. “Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.]” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) “ ‘We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Coronado (1995) 12 Cal.4th 145, 151.) Applying these principles of construction, we find that in 61 Ops.Cal.Atty.Gen. 391, supra, the purposes of section 38705 were described as follows: “The requirement for confidentiality under section 38705 fosters the complete and accurate reporting of information to the Board. (See Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6.) The Board’s ability to perform its responsibilities might be impaired if those supplying it with information were not assured that such information would be kept confidential from the public, particularly business competitors.” (Id. at pp. 392-393; fn. omitted.) The prohibition of section 38705 is thus intended to protect the privacy rights of timber owners, preventing business competitors and others from obtaining information furnished 2

Section 38402 authorizes the Board to furnish to county assessors copies of tax returns filed by timber owners. Section 38706 authorizes county assessors to examine the Board’s records.

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to the Board concerning their business affairs and operations. The Board’s administration of the Timber Yield Tax Law is thereby facilitated by making sure that the information it receives from timber owners is accurate due to the Legislature’s confidentiality mandate. By not disclosing the information furnished by the timber owners concerning their business affairs, the prohibition of section 38705 is satisfied in light of its evident purpose. This purpose is protected when different information, statistical data created by the Board’s staff, is disclosed to the public where the identities of the individual timber owners, their sales transactions, and business operations are not ascertainable. We find support for our conclusion in the Legislature’s general policy concerning the public disclosure of confidential information. Statutory prohibitions against the public disclosure of confidential information are generally not meant to apply to statistical data obtained or derived from confidential information (see, e.g., Health & Saf. Code, §§ 100330, 102460; Pen. Code, §§ 11144, 13012), including statistical data compiled from confidential taxpayer information (see, e.g., § 19563). Indeed, when the Legislature has intended to prevent public disclosure of compilations of confidential information, it has done so expressly (see, e.g., Pen. Code, § 832.7; 71 Ops.Cal.Atty.Gen. 247 (1988)), unlike the terms of section 38705. We limit the prohibition of section 38705 to its express language and consistent with its purpose. We conclude that the Board may publicly disclose information that its staff has compiled regarding timber and log sales transactions if the information is provided in a source-neutral, summary fashion that does not identify or make ascertainable specific timber or log sales transactions or the parties involved in such transactions.

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