MS 2020-07-H-Frierson-January-31-2020-Public-Records-Act 2020-01-31

Are total donation amounts to specific charities under Mississippi's Children's Promise Act tax credits public information?

Short answer: Yes. The AG concluded that the total contribution amounts received by individual charities under Mississippi's Children's Promise Act tax credit programs are subject to disclosure under the Public Records Act. Section 27-7-83 protects individual taxpayer information but does not extend that confidentiality to aggregate amounts received by the charities, and § 27-7-83(9) specifically permits publication of statistical data.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Mississippi's Children's Promise Act (Miss. Code Ann. §§ 27-7-22.39 and 27-7-22.41) gives state income tax credits to individuals and businesses that donate to certified "qualifying charitable organizations" or "eligible charitable organizations." Each donor submits an application identifying the charity and the amount they intend to give, and the credit is allocated against their tax liability. The Department of Revenue keeps the records and publishes the lists of certified charities under §§ 27-7-22.41(6) and 27-7-22.39(11).

Commissioner Frierson asked the AG whether, when someone files a public records request asking how much each individual charity has received in total Children's Promise Act donations, the Department must disclose those totals or whether the information is shielded under taxpayer-confidentiality statutes.

The AG said disclose. Two pillars support the answer:

Section 27-7-83(1) protects taxpayer return information, but the protection runs to the individual taxpayer, not to the recipient charity. The taxpayer's own credit application is confidential. The aggregate amount received by a charity from all donors, with no individual taxpayer identifiable, is not within the confidentiality rule.
Section 27-7-83(9) explicitly permits publication of statistics "so classified as to prevent the identification of particular reports or returns and the items thereof." Aggregate-by-charity data fits the statistical exception.

The Mississippi Supreme Court has long held that exceptions to the Public Records Act are construed strictly and any doubt about disclosure is resolved in favor of disclosure (Miss. Dept. of Wildlife, Fisheries and Parks, 740 So.2d 925 (Miss. 1999)). That presumption pushes in the same direction.

The AG also noted, in a footnote, that the Public Records Act does not require an agency to create records that do not exist. The Department said it could compute the totals "with minimal effort" but did not have a precomputed report. The AG said: confidentiality does not block disclosure, but the Department has no affirmative duty to produce a report that does not yet exist.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Mississippi has been growing the Children's Promise Act tax credit programs since 2018. Two distinct programs operate in parallel:

§ 27-7-22.39 governs individual income-tax credits for donations to "qualifying charitable organizations" and "qualifying foster care charitable organizations."
§ 27-7-22.41 governs business franchise/income-tax credits for donations to "eligible charitable organizations."

In each program, a charity applies to be certified, and once certified appears on a published list (§§ 27-7-22.39(11) and 27-7-22.41(6)). A donor files an application with the Department of Revenue indicating which charity will receive the donation and the amount. The Department allocates the credit, often subject to a statewide cap that triggers first-come-first-served allocation. The donor then makes the donation and claims the credit on their return.

The taxpayer-confidentiality issue arises because each donor's credit application is "return information" under § 27-7-83(1). That section makes "[r]eturns and return information filed or furnished under the provisions of this chapter ... confidential" and bars Department employees from divulging "the amount of income or any particulars set forth or disclosed in any report or return required."

If you read § 27-7-83(1) in isolation, it might appear to cover the credit application data, including which charity received the donation and how much. But the statute protects the taxpayer, not the recipient. A charity is not the taxpayer; the credit application discloses the donor's information, not the charity's. Aggregate totals, summed across all donors who picked a particular charity, do not reveal any individual donor's information. The connection to a particular taxpayer's return is lost in aggregation.

Section 27-7-83(9) makes this explicit:

Nothing in this section shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof.

Aggregate-by-charity data is exactly that: a statistic that does not identify any particular taxpayer's return. The exception fires.

The Mississippi Supreme Court in Miss. Dept. of Wildlife, Fisheries and Parks set the interpretive frame: liberal construction of disclosure provisions, strict construction of exceptions, doubt resolved in favor of disclosure. That tilt makes the AG's conclusion more comfortable, but the statutory analysis is straightforward even without it.

The "no duty to create records" point comes from a separate line of opinions (the AG cited MS AG Op., Robertson, October 13, 2006). The Public Records Act gives access to existing records; it does not impose an affirmative duty on the agency to compile new ones. The Department here volunteered that it could compute the totals quickly. Whether it had to create the report at all turns on whether a record already exists in some form. If the underlying data exists in a database, a query producing aggregate totals likely is "creating" a record in a way the Act does not require.

Common questions

Q: Does this rule extend to other tax credit programs?
A: The reasoning likely does. Where credit programs use a charity-by-charity allocation structure, aggregate-by-charity totals are statistical data that does not identify any specific taxpayer. The same § 27-7-83(9) statistical exception would apply, and the same Public Records Act presumption favors disclosure. Each program would need to be analyzed against its own confidentiality rules, but the structural answer is similar.

Q: Could a charity object to disclosure of how much it received?
A: The opinion does not address charity-specific objection grounds. As a general matter, the Public Records Act protects against disclosure that would invade individual privacy, but a registered charity's aggregate receipts under a public tax-credit program are not analogous to private financial information. A charity that objected would need to find a specific exception that applies; the AG's analysis suggests none does.

Q: What about identifying the specific donors who gave to each charity?
A: That would expose individual taxpayer return information and is protected under § 27-7-83(1). The aggregate sum is permitted; the donor-by-donor breakdown is not.

Q: Does the Department have to compute and publish these totals proactively?
A: No. The AG's footnote is clear: there is no affirmative duty to create records that do not exist. If the Department finds the request reasonable and easy to fulfill, it can choose to do so, but the Act does not compel that choice.

Q: How does this work if there is only one charity in a category, so aggregating is functionally identifying?
A: That is the harder edge case. The opinion does not address it. As a practical matter, if only one charity exists in a category, aggregate disclosure does identify it. But the statistical exception in § 27-7-83(9) still applies; the protection that would block disclosure is taxpayer-focused, not charity-focused, and there is no charity-confidentiality rule under the Children's Promise Act.

Citations and references

Statutes:
- Miss. Code Ann. § 27-3-77 (Tax payment status confidentiality)
- Miss. Code Ann. § 27-7-83(1) (Income tax return confidentiality)
- Miss. Code Ann. § 27-7-83(9) (Statistical-publication exception)
- Miss. Code Ann. § 27-7-22.39 (Qualifying charitable organization credit)
- Miss. Code Ann. § 27-7-22.39(11) (Department publishes list of qualifying charities)
- Miss. Code Ann. § 27-7-22.41 (Eligible charitable organization credit)
- Miss. Code Ann. § 27-7-22.41(6) (Department publishes list of eligible charities)

Cases:
- Miss. Dept. of Wildlife, Fisheries and Parks v. Mississippi Wildlife Enforcement Officers' Ass'n, 740 So.2d 925 (Miss. 1999)

Prior AG opinions:
- MS AG Op., Robertson (October 13, 2006) (No duty to create records)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OPINIONS DIVISION

January 31, 2020

Herb Frierson
Commissioner of Revenue
Post Office Box 22828
Jackson, Mississippi 39225

Re: Public Records Act

Dear Commissioner Frierson:

Attorney General Lynn Fitch has received your opinion request and has assigned it to me for research and reply.

Issues Presented

According to your request, the Department of Revenue (the "Department") maintains information regarding tax credits for businesses contributing to "eligible charitable organizations" under Section 27-7-22.41 of the Mississippi Code and to individuals contributing to "qualifying charitable organizations" or "qualifying foster care charitable organizations" under Section 27-7-22.39. The Department publishes lists of these charitable organizations pursuant to Sections 27-7-22.41(6) and 7-7-22.39(11), respectively. You further provide:

For either credit, the charitable organization has to submit an application and supporting documentation to the Department of Revenue to be certified as an eligible charitable organization, qualifying charitable organization and/or qualifying foster care charitable organization. When an organization is certified, it is published in the appropriate list of charitable organizations. Businesses or individuals then submit an application for an allocation [of] the credit indicating which charitable organization they intend to contribute to and the amount of the contribution.

We are expecting requests to disclose how much each charitable organization received in total. We maintain this information and with minimal effort can calculate. However, we would like guidance if that would be available under the Public Records Act or if it would be confidential under statutory provisions.

Each individual or business taxpayer is submitting return information furnished under the Income Tax Chapter in the form of the application for allocation of the credit, which clearly makes that specific taxpayer's contribution and credit amount protected under Miss. Code Ann. Section 27-7-83. The statute does not indicate that the confidentiality only covers the taxpayer though. Miss. Code Ann. Section 27-7-83 was codified long before Miss. Code Ann. Sections 27-7-22.39 and 27-7-22.41, so it may have been the intent to only cover the taxpayer, but it is not specifically stated. The statutes authorizing the credits require publication of the charitable entities but it does not specifically state that the amounts contributed can be published.

We feel comfortable that we can publish the total amount of credits based on contributions to each entity type (eligible charitable organizations licensed with the Department of Child Protection Services, eligible charitable organizations providing job training, workforce development or educational services but not licensed with the Department of Child Protection Services, qualifying charitable organizations, and qualifying foster care charitable organizations) under the statistical exemption to confidentiality. However, we would appreciate your opinion as to whether disclosing how much any specific charitable organization received under the program is prohibited or allowed.

Specifically, you ask: "Are the total contribution amounts under the Children's Promise Act to specific Eligible Charitable Organizations, Qualifying Charitable Organizations, or Qualifying Foster Care Charitable Organizations available through a public records request?"

Response

Yes. The total contribution amounts to the individual charitable organizations under the Children's Promise Act are subject to disclosure under the Public Records Act.

Footnote: In your request, you state you could calculate the requested totals with minimal effort. Our office has consistently opined, the Public Records Act does not require a public body to create a record that does not already exist. MS AG Op., Robertson (October 13, 2006). Thus, while the information in question is not exempt from disclosure under the Public Records Act, the Department does not have an affirmative duty to create a record in response to a public records request.

Applicable Law

Section 27-3-77 exempts from the Public Records Act records which would disclose information about a person's individual tax payment or status. With respect to the programs specifically listed in your request, Section 27-7-83(1) provides:

Returns and return information filed or furnished under the provisions of this chapter shall be confidential, and except in accordance with proper judicial order, as otherwise authorized by this section, as authorized in Section 27-4-3 or as authorized under Section 27-7-821, it shall be unlawful for the Commissioner of Revenue or any deputy, agent, clerk or other officer or employee of the Department of Revenue or the Mississippi Department of Information Technology Services, or any former employee thereof, to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required ...

Further, Section 27-7-83(9) provides:

Nothing in this section shall be construed to prohibit the publication of statistics, so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General, or any other attorney representing the state, of the report or return of any taxpayer who shall bring action to set aside the tax thereon, or against whom any action or proceeding has been instituted to recover any tax or penalty imposed.

The Mississippi Supreme Court has held "there is to be a liberal construction of the general disclosure provisions of a public records act, whereas a standard of strict construction is to be applied to the exceptions to disclosure; [and] any doubt concerning disclosure should be resolved in favor of disclosure." Miss. Dept. of Wildlife, Fisheries and Parks, 740 So.2d 925, 936 (Miss. 1999). The above-cited statutory exemptions to the Public Records Act prohibit the release of an individual's tax return information filed with the Department in accordance with the Children's Promise Act. As you note in your request, these exemptions are not clearly extended to the charities who receive donations. Further, Section 27-7-83(9) specifically allows the publication of statistics.

According to your request, the data in question does not reveal information specific to the individual donor but merely an aggregate amount of money received by each charitable organization pursuant to the Children's Promise Act. Thus, it is the opinion of this office that the total contribution amounts to the individual charitable organizations are not exempt from disclosure under the Public Records Act.

If we may be of further service, please let us know.

Very truly yours,

LYNN FITCH, ATTORNEY GENERAL

By: Beebe Garrard
Special Assistant Attorney General