Could South Carolina prosecutors disclose confidential tax returns required as evidence in a criminal case?

Official title

Regarding whether a properly filed Rule 5 discovery motion, and applicable case law pertaining to discovery in criminal cases, would permit the disclosure of tax related information without violating Section 12-54-240.

Requester

Joe. S. Dusenbury, Jr., General Counsel, SC Department of Revenue.

Plain-English summary

South Carolina’s Department of Revenue asked whether disclosing tax returns or related records in criminal discovery would violate the state tax-confidentiality statute. The Attorney General concluded that the statute’s “otherwise provided by law” exception allowed disclosure of material evidence requested under a properly filed Rule 5 or Brady motion in a criminal prosecution.

The opinion reasoned that criminal discovery and constitutional disclosure requirements could require prosecutors to turn over material evidence. It applied that duty to tax information covered by the confidentiality statute. The answer did not treat tax returns as generally open to the public.

Currency note

This opinion was issued in 2014. 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

Q: Did tax confidentiality always bar disclosure in a criminal case? A: The AG said no when a properly filed Rule 5 or Brady motion sought evidence that criminal-disclosure law required the prosecution to provide.

Q: Did the opinion authorize public release of tax returns? A: No. It addressed material evidence in a criminal prosecution under the statute’s stated exception.

Q: What statutory language supported the AG’s answer?
A: The office relied on the exception for disclosure “as otherwise provided by law.”

Background and statutory framework

The tax statute generally protected returns and reports filed with the Department of Revenue. The office compared that confidentiality rule with the prosecution’s evidence-disclosure duties under state criminal procedure and constitutional law. Its conclusion applies the statutory exception to properly requested material evidence. The PDF is linked below.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-26-2014/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/08/Dusenbury-J.-OS-9739-FINAL-OPINION-8-26-2014-00426233xD2C78.pdf

Original opinion text

M] ^

Alan Wilson

Attorney General

^OLrnA ^
August 26. 2014

Joe S. Dusenbury. Jr.
General Counsel

South Carolina Department of Revenue
300A Outlet Pointe Blvd.
Columbia, SC 29210
Dear Mr. Dusenbury:

We are in receipt of you letter requesting an opinion as to whether "a properly filed Rule

5 discovery motion, and applicable case law pertaining to discovery in criminal cases, would permit the disclosure of tax returns and other tax related information in criminal cases without violating Section 12-54-240 [of the South Carolina Code]." Our response follows. I.

Law/Analvsis

According to its legislative title, Section 12-54-240 of the Code generally prohibits,

among other things, the "[djisclosure of records . . . reports and returns filed with the Department of Revenue."

Specifically, Section 12-54-240(A) explains that, "[ejxcepl in accordance with

proper judicial order or as otherwise provided by law, it is unlawful for a person to divulge or make known in any manner any particulars set forth or disclosed in any report or return required under Chapters 6, 8, 11, 13, 16, 20, or 36 or Article 17. Chapter 21 of this title." S.C. Code Ann.
§ 12-54-240(A) (2014) (emphasis added).

As we understand it, your question focuses on

whether, in a criminal prosecution, Section I2-54-240(A),s "as otherwise provided by law" exception applies to criminal discovery provisions such as those mandated by Bradv v. Maryland. 373 U.S. 83 (1963) and Rule 5 of the South Carolina Rules of Criminal Procedure. We believe that it does.

While we have previously construed Section 12-54-240(A)'s "as otherwise provided by law" language to mean "permitting disclosure where the Legislature has otherwise directed" Op. S.C. Att'v Gen.. 1994 WL 50387 (January 21, 1994), we have never said stale statutory law is the exclusive source of "law" for purposes of construing this phrase. To the contrary, we believe Section 12-54-240(A),s "otherwise provided by law" language would necessarily include those

legal sources mentioned in your letter—federal constitutional law and state rules of criminal procedure—as it is abundantly clear that both would apply in a state criminal prosecution in South Carolina. Moreover, because both sources of legal authority clearly require disclosure in

certain circumstances, it seems clear that the phrase "otherwise provided by law" would include both federal constitutional and state procedural law.

RSMBEKtC. Dennis Building

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PostOfhcbBox 11549

• Columbia, SC 292! 1-1549

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Mr. Joe S. Dusenbury, Jr., Esq.
Page 2

August 26, 2014

A. Constitutional Law Requires Disclosure in Certain Circumstances Under Bradv and its' progeny, "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Bradv. 373 U.S. at

87; see also Clark v. State. 315 S.C. 385, 388, 434 S.E.2d 266, 268 (1993) ("Brady requires the State to disclose evidence in its possession favorable to the accused and material to guilt or punishment."). The requirements of Bradv also apply to impeachment evidence.

See U.S. v.

Bagley, 473 U.S. 667, 682 (1985) (explaining there is no difference between exculpatory and impeachment evidence for Bradv purposes). For purposes of determining evidence that may be subject to disclosure, Bradv places the burden of determining the relevant facts of a case on the prosecutor. Kvles v. Whitlev. 514 U.S. 419, 436-40 (1995); Gibson v. State. 344 S.C. 515, 524 n.3, 514 S.E.2d 320, 324 n.3 (1999). Notably, the Supreme Court of the United States and our Supreme Court have both advised, "in close cases, 'the prudent prosecutor will resolve doubtful questions in favor of disclosure.'" Gibson. 344 S.C. at 526, 514 S.E.2d at 325 (quoting in part Kvles. 514 U.S. at 438-40).

Thus, because the Fourteenth Amendment of the United States

Constitution clearly requires a criminal prosecutor to disclose evidence which is material either to guilt, punishment or impeachment under Bradv. we believe Section 12-54-240(A)'s "as

otherwise provided by law" language must be read as permitting the State to provide materials

that would otherwise be subject to the non-disclosure protections of Section 12-54-240 of the Code. B. South Carolina Procedural Law Requires Disclosure in Certain Circumstances Similar to Bradv. Rule Five of the South Carolina Rules of Criminal Procedure ("Rule

5") require a prosecutor in a criminal trial to provide certain types of material evidence to the defense.

Rule 5(a)(l)(A-D), SCRCrim.P. (2014).

In particular, the prosecution, under Rule

5(a)(1)(A), must provide "any relevant written or recorded statements made by the defendant . . .

within the possession, custody or control of the prosecution, the existence of which is known, or by the existence of due diligence may become known, to the attorney for the prosecution." Rule 5(a)(1)(A), SCRCrim.P (2014).

Additionally, Rule 5(a)(1)(B) of the Rules of Criminal

Procedure requires a prosecutor to disclose a defendant's prior record.

See Rule 5(a)(1)(B),

SCRCrim.P. ("Upon request of the defendant, the prosecution shall furnish to the defendant such

copy of his prior criminal record, if any, as is within the possession, custody, or control of the prosecution, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the prosecution.").

Further, Rules 5(a)(1)(C) and 5(a)(1)(D) of the

Rules of Criminal Procedure mandate the disclosure of certain "[djocuments and [tjangible
[ojbjects" as well as "[rjeports of [ejxaminations and [tjests." See Rule 5(a)(1)(C), SCRCrim.P. ("Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects, buildings or places, or copies or

Mr. Joe S. Dusenbury, Jr., Esq.
Page 3

August 26, 2014

portions thereof, which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial, or were obtained from or belong to the defendant."); Rule 5(a)(1)(D), SCRCrim.P. ("Upon request of a defendant the prosecution shall permit the

defendant to inspect and copy any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or

control of the prosecution, the existence of which is known, or by the existence of due diligence may become known, to the attorney for the prosecution, and which are material to the

preparation of the defense or are intended for use by the prosecution as evidence in chief at the trial."). Thus, it is clear that Rule 5, like Brady, requires disclosure of certain types of material evidence in a criminal trial and therefore, Section 12-54-240(A)'s "as otherwise provided by law" language must be read as permitting the State to disclose material evidence that would

otherwise be subject to Section 12-54-240's non-disclosure provisions. II.

Conclusion

In conclusion, because the Fourteenth Amendment of the United States Constitution as

well as Rule 5 of the South Carolina Rules of Criminal Procedure both require the prosecution to disclose certain types of material evidence in a criminal prosecution, we believe Section 12-54-

240(A)'s "as otherwise provided by law" exception applies in this situation. Thus, while Section 12-54-240 of the Code generally prohibits the disclosure of certain records and returns that are filed with the Department of Revenue, where such evidence is requested pursuant to a properly filed Rule 5 or Bradv motion in the context of a criminal prosecution, it is the opinion of this

Office that the statute, by virtue of its' "otherwise provided by law" language, does not prohibit disclosure of such evidence.

Sincerely,

Brendan McDonalc

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook

Solicitor General