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STATE BOARD OF EQUALIZATION PROPERTY AND SPECIAL TAXES DEPARTMENT

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STATE BOARD OF EQUALIZATION PROPERTY AND SPECIAL TAXES DEPARTMENT
STATE OF CALIFORNIA
BETTY T. YEE
First District, San Francisco
STATE BOARD OF EQUALIZATION
PROPERTY AND SPECIAL TAXES DEPARTMENT
BILL LEONARD
Second District, Ontario/Sacramento
450 N STREET, SACRAMENTO, CALIFORNIA
PO BOX 942879, SACRAMENTO, CALIFORNIA 94279-0064
916 445-4982 z FAX 916 323-8765
MICHELLE STEEL
Third District, Rolling Hills Estates
www.boe.ca.gov
November 19, 2007
JUDY CHU, Ph.D.
Fourth District, Los Angeles
JOHN CHIANG
State Controller
RAMON J. HIRSIG
Executive Director
No. 2007/044
TO COUNTY ASSESSORS AND INTERESTED PARTIES:
GUIDELINES ON THE PROPER HANDLING OF
CONFIDENTIAL INFORMATION
Board staff has initiated a project to develop Guidelines on the Proper Handling of Confidential
Information. These guidelines will primarily address documents and procedures in county
assessors' offices.
Enclosed is a draft of the proposed guidelines. Interested parties may provide suggested revisions
to the guidelines in the form of alternative text. Proposed revisions should be sent by
January 25, 2008 to Mr. Michael McDade at [email protected] or mailed to the
above address.
After reviewing comments received, staff will meet with interested parties to discuss any
outstanding issues. It is anticipated that the guidelines will be presented to the Board's Property
Tax Committee for discussion in summer 2008.
All documents for this project will be posted to the Board's website at
www.boe.ca.gov/proptaxes/otherprojects07.htm. If you have questions regarding this project,
you may contact Mr. McDade at 916-445-3150 or Ms. Sherrie Kinkle at 916-322-2921.
Sincerely,
/s/Mickie Stuckey
Mickie Stuckey
Acting Deputy Director
Property and Special Taxes Department
MS:mpm
Enclosure
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GUIDELINES ON THE PROPER HANDLING
OF CONFIDENTIAL INFORMATION
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6
The purpose of this document is to provide guidance to county assessors for the proper handling
of confidential information by presenting a comprehensive summary of the statutory provisions,
explaining their application in commonly encountered situations, and resolving some of the
apparent conflicts in those provisions.
7
GENERAL DISCLOSURE PROVISIONS
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The right to privacy is a personal and fundamental right protected by section 1 of article 1 of the
California Constitution and by the United States Constitution. All individuals have a right of
privacy in information pertaining to them. In order to protect that privacy, the dissemination and
maintenance of personal information must be subject to strict limits. 1
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The California Public Records Act (Act), codified by Government Code section 6250 et seq., is
the general provision governing the public disclosure of information by all state and local
agencies in California. The Act implements the Legislature's finding and declaration that
"mindful of the right of individuals to privacy…access to information concerning the conduct of
the people's business is a fundamental and necessary right of every person in this state." 2 In
enacting those provisions, the Legislature also took measures to protect the confidentiality of
individual members of the public by prohibiting the disclosure of specified types and forms of
information such as property statements, change in ownership statements, and homeowners'
exemption claim forms.
21
COUNTY ASSESSORS' INQUIRY RIGHTS
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Pursuant to the California Constitution, article XIII section 1, and Revenue and Taxation Code
sections 110, 110.1 and 401, 3 county assessors are required to value and enroll all locally
assessable property at its fair market value. To allow a county assessor to perform this task,
every person owning, claiming, possessing, controlling, or managing property shall furnish any
required information or records to a county assessor for examination at any time. 4 Property
owners with business-related personal property having a value in excess of $100,000 are
obligated to file annual property statements describing the cost of all taxable property acquired or
disposed of during the preceding assessment year. 5 County assessors may also pose specific
property valuation questions and request specific property-related documents. 6
1
Civil Code section 1798.1.
Government Code section 6250.
3
All statutory references are to the Revenue and Taxation Code unless otherwise designated.
4
Section 442.
5
Section 441, subdivision (a).
6
Sections 441, 454, and 470.
2
Guidelines on Proper Handling of Confidential
Information--DRAFT
1
November 2007
1
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A county assessor's ability to request property information is only limited by the requirements
that the inquiry is within the authority of the agency, the demand is not too indefinite, and the
information sought is reasonably relevant to the discovery and valuation of taxable property. 7 In
accordance with section 19551, for example, a county assessor may request and receive assessee
tax return information from the Franchise Tax Board. 8
6
PROPERTY OWNERS' INQUIRY RIGHTS
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A property owner is entitled to require a county assessor to disclose the basis and methodology
used for the assessment of the owner's property. The property owner may inspect the county
assessor's records concerning the particular appraisal of his or her property and review publicly
available market data used as basis for the appraisal. In certain instances, the property owner
may secure a court order to force disclosure of confidential business information of others which
the county assessor may have used to value the property. 9
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INFORMATION PROVIDED TO THE PUBLIC
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The types of information held by county assessors fall into two general categories:
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(1) Public information filed by taxpayers that a county assessor is statutorily required to
maintain. These include the assessment roll, assessment maps, list of all property
transferred in the last two years, welfare exemption claims and supporting documents,
market data, and information maintained on property characteristics.
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(2) Other information not required by the statute to be kept but that is used for purposes of
conducting appraisals. These include change in ownership statements, personal property
statements, and other appraisal information obtained by a county assessor.
22
Government Code section 6253, subdivision (a), 10 provides in relevant part that:
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Public records are open to inspection at all times during the office hours of the
state or local agency and every person has a right to inspect any public record,
except as hereafter provided. Any reasonably segregable portion of a record shall
be available for inspection by any person requesting the record after deletion of
the portions that are exempted by law.
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Public records that are generally subject to inspection and copying as defined under the Act
include "any writing containing information relating to the conduct of the public's business
7
Roberts v. Gulf Oil Co. (1983) 147 Cal.App.3d 770, 796.
Lyons v. Estes (1969) 6 Cal.App.3d 979.
9
Henderson v. Bettis (1975) 53 Cal.App.3d 486.
10
For ease of reference in this document, we may refer to subdivisions as, for example, section 6253(a).
8
Guidelines on Proper Handling of Confidential
Information--DRAFT
2
November 2007
1
2
prepared, owned, used, or retained by any state or local agency regardless of physical form or
characteristics." 11
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A public agency must justify withholding any record by demonstrating that the record in
question is statutorily exempt from public inspection or that the public interest served by not
disclosing it clearly outweighs the public interest served by disclosure of the record. 12
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The disclosure provisions governing information collected and maintained by county assessors
are set forth in section 408, which provide that information and records in a county assessor's
office that are not required by law to be kept or prepared by a county assessor are not public
documents and are not open to public inspection. 13
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Government Code section 25303 sets forth the authority of the board of supervisors to supervise
the official conduct of all county officers and to investigate the conduct of a county assessor's
office. It provides in part:
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The board of supervisors shall supervise the official conduct of all county
officers, and officers of all districts and other subdivisions of the county, and
particularly insofar as the functions and duties of such county officers and officers
of all districts and subdivisions of the county relate to the assessing, collecting,
safekeeping, management, or disbursement of public funds….
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Section 408(b) incorporated the above Government Code section into the Revenue and Taxation
Code in order to confirm the authority and jurisdiction of the board of supervisors and to ensure
that the board of supervisors has access to all documents in a county assessor's possession.
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Section 408(b) provides an exception to the general rule of confidentiality for certain
governmental agencies or representatives. It requires that a county assessor disclose information
or permit access to all records sought by a county assessor of any other county and the following:
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•
Law enforcement agencies
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County grand jury
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Boards of supervisors or their duly authorized agents employees or representatives when
conducting an investigation of a county assessor's office pursuant to section 25303 of the
Government Code
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•
State Controller and employees of the State Controller for property tax postponement
purposes
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•
Probate referees
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•
Employees of the Franchise Tax Board for tax administration purposes only
11
Government Code section 6252(e).
Government Code section 6255(a).
13
Statewide Homeowners, Inc. v. Williams (1973) 30 Cal.App.3d 567.
12
Guidelines on Proper Handling of Confidential
Information--DRAFT
3
November 2007
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Staff appraisers of the Department of Financial Institutions
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•
State Department of Transportation
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•
State Department of General Services
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State Board of Equalization
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State Lands Commission
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State Department of Social Services
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State Department of Child Support Services
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State Department of Water Resources
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Other duly authorized legislative or administrative bodies of the state pursuant to their
authorization to examine records
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ASSESSMENT ROLL
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Section 601 instructs a county assessor to prepare an assessment roll showing all assessable
property within the county. The assessment roll must contain the following information: 14
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The name and address, if known, of the assessee. (A county assessor is not required to
maintain electronic mail addresses.)
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Land, by legal description.
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A description of possessory interests sufficient to identify them.
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Personal property. (A failure to enumerate personal property in detail does not invalidate
the assessment.)
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The assessed value of real estate, except improvements.
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The assessed value of improvements on the real estate.
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The assessed value of improvements assessed to any person other than the owner of the
land.
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The assessed value of possessory interests.
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The assessed value of personal property, other than intangibles.
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The revenue district in which each piece of property assessed is situated.
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The total taxable value of all property assessed, exclusive of intangibles.
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Section 602.
Guidelines on Proper Handling of Confidential
Information--DRAFT
4
November 2007
1
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Section 1602 provides that the information contained on the roll is public and must be made
available for inspection during regular office hours.
3
ORGANIZATIONAL EXEMPTIONS
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Organizational exemption claims and related documents are available for public inspection
pursuant to the Act and section 408.2. All documents filed with an organizational exemption
claim may be inspected, including supplemental affidavits, financial statements, organizational
documents, and federal or state tax exempt letters.
8
These exemptions include cemetery, college, church, religious, welfare, and lessor.
9
PROPERTY CHARACTERISTICS
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Property characteristics information maintained by a county assessor is a public record and must
be open to public inspection. 15 Property characteristics include, but are not limited to, the
following: 16
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The year of construction of improvements to a property
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The square footage
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The number of bedrooms and bathrooms of all dwellings
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The property's acreage
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Other attributes of or amenities to a property, such as swimming pools, views, zoning
classifications or restrictions, use code designations, and the number of dwelling units of
multiple-family properties
20
COUNTY ASSESSOR'S MAPS
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Section 327 provides that where any county or county officer possesses a complete, accurate
map of any land in the county, the map or a copy of it must be displayed publicly at all times in
the office of the county assessor.
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Parcel boundary map data maintained by a county assessor in an electronic format is also subject
to public inspection and copying under provisions of the Act. When requested by a member of
the public, a copy of parcel boundary map data must be furnished upon request. 17
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LIST OF TRANSFERS
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Section 408.1 provides in part that a county assessor must maintain a list of property transfers
within the county that have occurred within the preceding two-year period. The list must be open
for public inspection and must contain the following information:
•
31
Transferor and transferee, if available
15
Section 408.3(a).
Section 408.3(b).
17
Attorney General Opinion No. 04-1105, October 3, 2005.
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Guidelines on Proper Handling of Confidential
Information--DRAFT
5
November 2007
1
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Assessor's parcel number
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Address of the sales property
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Date of transfer
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Date of recording and recording reference number
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Consideration paid for such property (if known)
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A county assessor is prohibited from including information on the list which relates to:
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The business or business affairs of the owner of the property or the income or income
stream generated by the property 18
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Information from the Preliminary Change of Ownership Report (PCOR) or Change of
Ownership Statement (COS) which is not otherwise public information 19
11
MARKET DATA
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If a county assessor bases the assessment of property on comparable sales, then upon the
assessee's request, the following information must be provided:
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The names of the seller and buyer of each property on which the comparison is based
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The location of each property
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The date of each sale
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The consideration paid for each property (if known)
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Section 408(d) defines market data as any information in a county assessor's possession, whether
or not required by law to be prepared or kept by a county assessor, relating to the sale of any
property comparable to the property of the assessee.
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COST OF PROVIDING DATA
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Section 409(a) provides that if a county assessor, pursuant to the request of any party, provides
information or records that a county assessor is not required by law to prepare or keep, the
county may require that a fee reasonably related to the actual cost of developing and providing
that information be paid by the party receiving the information.
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The actual cost of providing the information is not limited to duplication or reproduction costs,
but may include recovery of developmental and indirect costs, such as overhead, personnel,
supply, material, office, storage, and computer costs. 20 The county may impose this fee for
information and records maintained for county use, as well as for information and records not
maintained for county use.
18
Section 408.1(b)(7).
Section 481.
20
Section 408.3(c).
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Guidelines on Proper Handling of Confidential
Information--DRAFT
6
November 2007
1
INFORMATION PROVIDED TO OR OBTAINED FROM OTHER AGENCIES
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Section 408(b) provides that a county assessor is required to disclose information, or permit
access to all records in a county assessor's office, to:
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Law enforcement agencies
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The county grand jury
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The board of supervisors or their duly authorized agents, employees or representatives
when conducting an investigation of a county assessor's office pursuant to section 25303
of the Government Code
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The State Controller
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Probate referees
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Employees of the Franchise Tax Board for tax administration purposes only
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The State Board of Equalization
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Other duly authorized legislative or administrative bodies of the state pursuant to their
authorization to examine the records
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Examples of other duly authorized legislative or administrative bodies include agencies or
committees authorized to investigate matters to which access to county assessors' records is
necessary and proper such as legislative committees, the State Auditor, and any other agency
having specific statutory authority.
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INFORMATION PROVIDED TO OTHER DEPARTMENTS
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There is a general prohibition of disclosure contained in section 408. Only specific agencies
listed in the statutes are allowed access to confidential taxpayer information gathered for tax
collection and assessment purposes. There is a public purpose to promoting full disclosure from
taxpayers. Since taxpayers are required by the law to provide the information for the particular
purpose of taxation, public policy is against revealing that information. Inspection is permitted
only if it is necessary in the administration of tax law. 21
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County Planning Commission
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County planning commissions are agencies created by the Legislature pursuant to Government
Code section 65101, and are authorized by section 65106 to request information from all public
officials as may be required for their work. Such a commission qualifies as a legislative or
administrative body authorized under section 408 to examine the records of a county assessor.
21
Franchise Tax Board v. Superior Court (1950) 36 Cal.2d 538.
Guidelines on Proper Handling of Confidential
Information--DRAFT
7
November 2007
1
County and Local Planning Departments
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Although county and local planning departments are responsible for enforcing county and local
ordinances with respect to the regulation of construction of buildings, they are not law
enforcement agencies pursuant to section 408(b). Law enforcement agencies are those local,
state, or federal, agencies such as the police, sheriff, or the Federal Bureau of Investigation that
enforce the penal statutes. Many state and local administrative agencies enforce one or more
statutes, and in the course of such enforcement conduct investigations.22 Those agencies are not
allowed the same access to confidential information as other law enforcement agencies.
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District Attorneys
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The district attorneys, and their deputies and employees, in the 58 California counties are "law
enforcement agencies" within the meaning of section 408(b). Accordingly, county assessors are
required to disclose information, furnish abstracts, or permit access to all records in their offices
to the district attorney or their authorized deputies, agents, and employees.
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County Tax Collector
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Section 408(c) provides that upon the request of the tax collector, a county assessor is required to
disclose and provide to the tax collector information used in the preparation of that portion of the
unsecured roll for which the taxes are delinquent. The tax collector is to certify to the county
assessor that the information requested is needed for the enforcement of the tax lien in collecting
those delinquent taxes. Information requested by the tax collector may include social security
numbers. A county assessor is authorized to recover from the tax collector reasonable costs for
providing the information.
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INFORMATION FROM THE STATE BOARD OF EQUALIZATION
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Section 833(c) states that except as provided in section 38706, the State Board of Equalization
(Board) may provide any assessment data in its possession to an assessor of any county. When
requested by resolution of the board of supervisors of any county, or the city council of any city
that prepares its own local roll, the Board shall permit the auditor or the assessor of the county or
city, or any duly authorized deputy or employee of that officer, to examine any and all records of
the Board.
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Documents that are confidential and privileged, such as the property statements of state
assessees, remain so as long as the privilege is not waived and they do not become public
information. If both the Board and a county assessor receive confidential data under section 833,
then they both are bound by its restrictions and limitations. Further, a county assessor does not
have the authority to share the information received from the Board with either a city council or
board of supervisors.
22
State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778.
Guidelines on Proper Handling of Confidential
Information--DRAFT
8
November 2007
1
INFORMATION SHARING AMONG COUNTY ASSESSORS
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Section 408 allows one county assessor to share relevant confidential information concerning
property owners with other county assessors. Section 408(b) provides in part:
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The assessor may provide any appraisal data in his or her possession to the
assessor of any county.
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This provision allows county assessors to determine the fair market value of certain types of
properties that share common market characteristics such as oil, gas, gravel, geothermal, regional
shopping centers, central wholesale distribution centers, and amusement parks.
9
CALIFORNIA COUNTIES COOPERATIVE AUDIT SERVICE EXCHANGE
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Many counties conduct audits through the inter-county cooperative audit program. This program
is called the California Counties Cooperative Audit Services Exchange (CCCASE). It can be an
efficient and effective means of audit for both the county assessor and the assessee. Using this
program, a county assessor's staff in the county where the assessee is headquartered gathers
information for the audit for all participating counties. A similar arrangement is used for
assessees headquartered outside of California. One auditor may go to a particular state or city
and gather information for all counties who have audit accounts at that location.
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Each participating county's board of supervisors establishes a Joint Powers Agreement with the
other counties. The agreement specifically references the confidentiality provisions of
sections 408 and 451. 23
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AIRCRAFT ADVISORY SUBCOMMITTEE OF THE CALIFORNIA ASSESSORS' ASSOCIATION
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Section 1153.5 provides for the establishment of a lead county assessor's office for each
commercial air carrier operating certificated aircraft. The lead county office receives the property
statements from the carrier, calculates the unallocated value of the aircraft, electronically
transmits the calculated values to the county in which the aircraft has situs, and leads the audit
team when an audit of the designated carrier is conducted.
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In this capacity, the lead county assessor is subject to the provisions of Property Tax Rule 322 24
and sections 408, 451, and 1606 to the same extent as the local assessor. 25
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FEDERAL SUMMONS
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A county assessor is required, pursuant to an administrative summons issued by the Internal
Revenue Service, 26 to produce information contained in property tax records made confidential
under sections 408, 451, or 481 of the Revenue and Taxation Code, where the federal interest in
disclosure outweigh the state interest in confidentiality. Conversely, a county assessor is
23
CCCASE Joint Powers Agreement, Section 12: Authorization-Information Held Secret.
All references to Rules are Property Tax Rules from Title 18, Public Revenues, California Code of Regulations.
25
Section 1153.5(c)(2). Section 1153.5 is in effect until December 31, 2010.
26
Article 26, United States Code, section 7602.
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Guidelines on Proper Handling of Confidential
Information--DRAFT
9
November 2007
1
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prohibited from producing such information where the state interests in confidentiality outweigh
the federal interests in disclosure. 27
3
Title 26, United States Code, section 7602(a), provides:
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For the purpose of ascertaining the correctness of any return, making a return
where none has been made, determining the liability of any person for any
internal revenue tax or the liability at law or in equity of any transferee or
fiduciary of any person in respect of any internal revenue tax, or collecting any
such liability, the Secretary is authorized—
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(1) To examine any books, papers, records, or other data relevant or material to
such inquiry.
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(2) To summon the person liable for tax or required to perform the act, or any
officer or employee of such person, or any person having possession, custody, or
care of books of account containing entries relating to the business of the person
liable for tax or required to perform the act, or any other person the Secretary may
deem proper, to appear before the Secretary at a time and place named in the
summons and to produce such books, papers, records, or other data, and to give
such testimony, under oath, as may be relevant or material to such inquiry.
18
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(3) To take such testimony of the person concerned, under oath, as may be
relevant or material to such inquiry.
20
Example
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The Internal Revenue Service requests an examination of the homeowners'
exemption claims to determine the accuracy of the federal tax returns filed by
certain individuals.
24
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26
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Opinion 84-1104 of the California Attorney General considered the issue of releasing
confidential records in a county assessor's possession in response to a summons issued under
Title 26, section 7602. The Attorney General set factors which would weigh in favor of
disclosure, and others that would weigh in favor of nondisclosure.
28
Considerations that weigh in favor of disclosure include, but are not limited to:
29
1. The importance of the federal proceedings;
30
2. The information would directly affect the resolution of a primary issue;
31
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3. Under similar circumstances, disclosure by the federal government of federal tax
information would be permitted;
27
Attorney General Opinion No. 84-1104, July 30, 1985.
Guidelines on Proper Handling of Confidential
Information--DRAFT
10
November 2007
1
2
4. Under similar circumstances, disclosure by the state to another state taxing agency would
be permitted;
3
4
5. The taxpayer whose records are to be disclosed is a party or is directly interested in the
investigative proceeding.
5
6
7
However, a county assessor is prohibited from producing such information where the state
interest in confidentiality outweighs the federal interest in disclosure. Considerations which
would weigh in favor of nondisclosure would include:
8
1. The information sought may be readily acquired from another source;
9
10
2. The information sought would be cumulative of other competent evidence acquired or
available;
11
12
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3. The disclosure of information not otherwise a matter of public record or knowledge
would constitute a substantial invasion of privacy or impairment of competitive
advantage;
14
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4. Disclosure of information would have a substantial adverse effect upon voluntary
compliance with revenue requirements;
16
17
5. Disclosure of information would identify a confidential informant or impair a state
investigation in progress.
18
CONFIDENTIAL INFORMATION
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Certain documents filed by taxpayers contain personal information, and are statutorily required
to be kept confidential. These include property statements, Preliminary Change of Ownership
Report (PCOR), 28 Change of Ownership Statement (COS), 29 and the Claim for Homeowners'
Property Tax Exemption. 30
23
PROPERTY STATEMENTS
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Each person owning taxable personal property, other than a manufactured home, having an
aggregate cost of $100,000 or more for any assessment year must file a signed property
statement with the assessor of the county where the property is located. Every person owning
personal property that does not require the filing of a property statement, upon request of a
county assessor, must file a signed property statement. 31
28
Form BOE-502-A.
Form BOE-502-AH.
30
Form BOE-266.
31
Section 441(a).
29
Guidelines on Proper Handling of Confidential
Information--DRAFT
11
November 2007
1
2
3
A county assessor is authorized to examine information or records related to the assessee's
property or any other personal property located on the assessee's premises that is considered
essential to the proper discharge of an assessor's duties. This information may include: 32
4
5
•
Details of property acquisition transactions such as price paid, delivery and installation
cost
6
•
Construction and development costs
7
•
Rental income
8
•
Other data relevant to the determination of an estimate of value
9
10
11
All information requested by a county assessor or furnished in the property statement will be
held secret by the county assessor. The statement is not a public document and is not open to
inspection, except as provided in section 408. 33
12
Property statements include:
13
•
Mutual or Private Water Company Property Statement (BOE-540-S)
14
•
Oil, Gas and Geothermal Personal Property Statement (BOE-566-J)
15
•
Agricultural Property Statement (BOE-571-A and BOE-571-F)
16
•
Power Plant Property Statement (BOE-571-C)
17
•
Horse Property Statement (BOE-571-K)
18
•
Business Property Statement (BOE-571-L)
19
•
Miscellaneous Property Statement (BOE-571-M)
20
•
Pipeline Property Statement (BOE-571-P)
21
•
Apartment House Property Statement (BOE-571-R)
22
•
Right-of-Way Property Statement (BOE-571-RW)
23
•
Insurance Company Separate Account Property Statement (BOE-572)
24
•
Vessel Property Statement (BOE-576-D)
25
Business Property Statement Electronic Filing
26
27
28
Section 441(k) authorizes electronic filing (e-filing) and authentication of business property
statements. Some county assessors are participating in a program whereby business property
statements may be filed electronically via the Internet. In the California Assessor Standard Data
32
33
Section 441(d)(1).
Section 451.
Guidelines on Proper Handling of Confidential
Information--DRAFT
12
November 2007
1
2
Record (SDR) Network Group, the confidentiality of data is addressed in the Conditions of Use
Policy. 34
3
4
Other county assessors are currently working with their property tax software providers to permit
online filing.
5
6
In using either the SDR filings or online filing, the Internet transactions must use secure websites
to prevent unauthorized exposure of the data.
7
8
County assessors are also prohibited from releasing information related to the property or
business affairs of other taxpayers.
9
Civil Code section 1798.3 provides the following definition of personal information:
10
11
12
13
14
Any information that is maintained by an agency that identifies or describes an
individual, including, but not limited to, his or her name, social security number,
physical description, home address, home telephone number, education, financial
matters, and medical or employment history. It includes statements made by, or
attributed to, the individual.
15
HOMEOWNERS' EXEMPTION
16
17
18
Section 408(a) provides that property receiving the homeowners' exemption must be clearly
identified on the assessment roll. A county assessor must maintain records that are open to public
inspection to identify those claimants who have been granted the homeowners' exemption.
19
20
21
Certain documents, however, are not open to public inspection. The Claim for Homeowners'
Property Tax Exemption contains confidential information, such as social security numbers.
Therefore, the claims may not be disclosed. 35
22
VETERANS' EXEMPTIONS
23
24
The Claim for Disabled Veterans' Property Tax Exemption 36 is confidential because it contains
the applicant's social security number.
25
26
However, the Claim for Veterans' Exemption 37 is not considered confidential because it does not
contain the applicant's social security number.
27
CHANGE IN OWNERSHIP STATEMENTS
28
29
30
31
Anytime there is any change in ownership of real property or of a manufactured home that is
subject to local property taxation, the transferee is required to file a signed change in ownership
statement in the county where the property is located. The type of information provided on the
statement includes:
34
http://www.sdrtest.org, Section D: Public Disclosure.
Property Tax Rule 135, subsection (e)(4).
36
Form BOE-261-G.
37
Form BOE-261.
35
Guidelines on Proper Handling of Confidential
Information--DRAFT
13
November 2007
1
•
A description of the property
2
•
Identification of the parties to the transaction
3
•
The date of acquisition
4
•
The amount paid for the property measured in money or otherwise
5
•
The terms of the transaction
6
7
8
All information furnished in the change in ownership statement must be held secret by those
authorized by law to receive or have access to this information. These statements are not public
documents and are not open to inspection, except as provided in section 408. 38
9
SUMMARY OF CONFIDENTIAL CLAIMS AND FORMS
10
11
The following claims and forms contain confidential information and are not subject to public
inspection:
12
CONFIDENTIAL—SOCIAL SECURITY NUMBERS
Form
BOE-58-AH
BOE-58-G
BOE-60-AH
BOE-60-NR
BOE-62
BOE-261-G
BOE-266
Title
Claim for Reassessment Exclusion for Transfer Between Parent and Child
Claim for Reassessment Exclusion for Transfer from Grandparent to
Grandchild
Claim of Person(s) at Least 55 Years of Age for Transfer of Base Year
Value to Replacement Dwelling
Notice of Rescission of Claim to Transfer Base Year Value to
Replacement Dwelling
Disabled Persons Claim for Transfer of Base Year Value to Replacement
Dwelling
Claim for Disabled Veterans' Property Tax Exemption
Claim for Homeowners' Property Tax Exemption
13
14
CONFIDENTIAL—BUSINESS AFFAIRS OF OTHERS
Form
BOE-502-A
BOE-502-AH
BOE-502-G
BOE-502-P
BOE-540-S
BOE-560-A
BOE-560-B
BOE-560-C
38
Title
Preliminary Change of Ownership Report
Change of Ownership Statement
Change of Ownership Statement, Oil and Gas Property
Possessory Interests Annual Usage Report
Mutual or Private Water Company Property Statement
Aggregate Production Report
Mining Production Report
Mining Claim Production Report
Section 481.
Guidelines on Proper Handling of Confidential
Information--DRAFT
14
November 2007
Form
BOE-566-D
BOE-566-F
BOE-566-J
BOE-566-K
BOE-567-D
BOE-567-K
BOE-571-A
BOE-571-C
BOE-571-F
BOE-571-K
BOE-571-L & S
BOE-571-M
BOE-571-P
BOE-571-R
BOE-571-RW
BOE-572
BOE-572-A
BOE-576-D
BOE-510 through
530
1
2
Title
Oil and Dissolved Gas Production Report
Dry Gas Production, Equipment, New Well, Redrill and Rework Report
Oil, gas and Geothermal Personal Property Statement
Annual Oil and Gas Operating Expense Data
Geothermal Production Report
Annual Geothermal Operating Expense Data
Agricultural Property Statement
Power Plant Property Statement
Agricultural Property Statement
Horse Property Statement
Business Property Statement
Miscellaneous Property Statement
Pipeline Property Statement
Apartment House Property Statement
Right-of-Way Property Statement
Insurance Company Separate Account Property Statement
Insurance Company Statement of Transfer
Vessel Property Statement
Appraisal Records 39
The following claims do not contain confidential information and therefore are subject to public
inspection:
Form
Title
BOE-63
BOE-64
BOE-65-CP
Disabled Persons Claim for Exclusion of New Construction
Claim for Seismic Safety Construction Exclusion from Assessment
Claim for Transfer of Base Year Value from Qualified Contaminated Property
to Replacement Property
Claim for Intercounty Transfer of Base Year Value from Principal Residence
Damaged or Destroyed in a Governor-Declared Disaster to Replacement
Property
Claim for Veteran's Exemption
BOE-65-PT
BOE-261
3
RECONCILIATION OF SECTIONS 408.1 AND 481
4
5
6
7
Section 481 requires a county assessor to hold secret all information furnished on either the
PCOR or COS. Section 408.1 requires a county assessor to maintain a list of transfers of property
that have occurred within the preceding two years and hold that list open for public inspection. In
most instances, the source of information for that list is obtained from the PCOR or COS.
39
These are not Board-prescribed forms. County assessors may be using different forms or the records may exist in
a computer file. In any case, the information contained therein is confidential except for property characteristics in
accordance with section 408.3.
Guidelines on Proper Handling of Confidential
Information--DRAFT
15
November 2007
1
2
3
4
The specific information required to be placed on the transfer list under section 408.1 constitutes
an exception to the hold secret requirement in section 481. However, subdivision (f) of section
408.1 mandates that a county assessor include on the transfer list only information from the
PCOR or COS that is otherwise public information.
5
6
7
8
9
10
11
12
In this context, public information means any information concerning real property transfers that
is available from documents accessible by the public. For example, the name of the transferor
and transferee, the assessor's parcel number, the property address, date of transfer, and date of
recording is information that is typically available to the public from the recorder's office. The
consideration paid for the property can usually be calculated from the amount of documentary
transfer tax shown on the recorded deed. In some cases, real estate publications and Realtors'
Multiple Listing Service databases disclose information to the public concerning the sales price
or liabilities assumed.
13
INFORMATION RELATED TO BUSINESS AFFAIRS OF OTHERS
14
15
16
17
A county assessor is prohibited from disclosing to one taxpayer information and records that
relate to the property or business affairs of another taxpayer. An exception occurs when the
disclosure is ordered by a competent court in a proceeding initiated by a taxpayer seeking to
challenge the validity of the assessment of his or her property. 40
18
19
Government Code section 6254(i) describes records that may not be disclosed by a county
assessor:
20
21
22
23
Information required from any taxpayer in connection with the collection of local
taxes that is received in confidence and the disclosure of the information to other
persons would result in unfair competitive disadvantage to the person supplying
the information.
24
25
26
27
Section 408 states that a county assessor shall permit the assessee or representative to inspect or
copy all information, documents, and records, including auditors' narrations and workpapers,
whether or not required to be kept or prepared by a county assessor, relating to the appraisal and
the assessment of the assessee's property.
28
29
Subsequent to a change in ownership, a prior owner is not permitted to have the same access to
those confidential records because he or she is no longer the assessee.
30
CONTRACTORS HIRED BY COUNTY ASSESSORS
31
32
Section 674(e) defines a contractor as any person who is not an employee of the state, any
county, or any city who performs appraisal work pursuant to a contract with a county assessor.
40
Section 408(e)(3).
Guidelines on Proper Handling of Confidential
Information--DRAFT
16
November 2007
1
2
3
4
County assessors contract with non-employee appraisers (contractors) to perform appraisal work,
typically for specialized properties such as petroleum and mining properties. Section 674
requires specific standards of confidentiality to be included in all contracts executed between
county assessors and contractors. Some of the provisions include:
5
6
7
8
•
Any request for information and records from an assessee must be made by a county
assessor. A county assessor may authorize a contractor to request additional information
or records, if needed. However, a contractor is not allowed to request information or
records without the written authorization of the county assessor. 41
9
10
11
12
•
A contractor shall not provide appraisal data in his or her possession to the county
assessor or a contractor of another county who is not a party to the contract. A county
assessor may provide that data to the assessor of another county as provided in
section 408(b). 42
13
14
15
16
•
A contractor may not retain information contained in, or derived from, an assessee's
confidential information and records after the conclusion, termination, or nonrenewal of
the contract. Within 90 days of the conclusion, termination, or nonrenewal of the
contract, the contractor must do the following: 43
17
18
19
o Purge and return to the county assessor any assessee records, whether originals,
copies, or electronically stored, provided by the county assessor or otherwise obtained
from the assessee.
20
21
o Provide a written declaration to the county assessor that the contractor has complied
with this subdivision.
22
INTERNET PUBLICATION RESTRICTIONS
23
24
25
Government Code section 6254.21(a) prohibits the publication on the Internet of home addresses
or telephone numbers of any state or local agency official, whether elected or appointed, without
first obtaining the written permission of that individual.
26
27
Government Code section 6254.21(f) defines elected or appointed official to include, but not be
limited to, all of the following:
28
1. State constitutional officers
29
2. Members of the Legislature
30
3. Judges and court commissioners
31
4. District attorneys
41
Section 674(b)(1).
Section 674(b)(2).
43
Section 674(c).
42
Guidelines on Proper Handling of Confidential
Information--DRAFT
17
November 2007
1
5. Public defenders
2
6. Members of a city council
3
7. Members of a board of supervisors
4
8. Appointees of the Governor
5
9. Appointees of the Legislature
6
10. Mayors
7
11. City attorneys
8
12. Police chiefs and sheriffs
9
13. A public safety official as defined in Government Code section 6254.24
10
14. State administrative law judges
11
15. Federal judges and federal defenders
12
16. Members of the United States Congress and appointees of the President
13
E-MAIL CONFIDENTIALITY
14
15
16
The most widely used Internet e-mail protocol, Simple Mail Transfer Protocol (SMTP), is
inherently not secure. Messages sent in this fashion are easily readable by others. A general
recommendation is that confidential information should not be exchanged via e-mail.
17
ASSESSMENT APPEALS
18
19
20
21
22
23
Section 1605.4 and Rule 313 require that appeals board hearings must be open, accessible, and
audible to the public. When a portion of a hearing involves evidence regarding trade secrets for
which the county assessor or applicant wishes to maintain confidentiality, that portion of the
hearing may be closed to the public. If the appeals board grants the request of the county assessor
or applicant to close a portion of the hearing, only evidence relating to the confidential
information may be presented during the time the hearing is closed to the public.
24
25
26
A trade secret: 44
…means information, including a formula, pattern, compilation, program, device,
method, technique, or process, that:
27
28
29
(1) Derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use; and
44
Civil Code section 3426.1(d).
Guidelines on Proper Handling of Confidential
Information--DRAFT
18
November 2007
1
2
(2) Is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
3
4
5
6
7
When the county assessor presents detailed information on the methodology employed to arrive
at a value during an appeals hearing, such information may have been derived from confidential
data submitted by the assessee. 45 If the information is included as an exhibit, or if the minutes of
the hearing delineate the information, confidentiality would not be maintained. Therefore, the
confidential information must be redacted/deleted from the published minutes.
8
Example
9
10
11
In the minutes of a gas well appeal, the county assessor's exhibits include appraisal
calculations that contain the taxpayer's name, current and prior years' production, and
estimated reserves.
12
13
14
15
The Oil, Gas and Geothermal Personal Property Statement (form BOE-566-J) contains the
statement "The information contained herein will be held secret by the Assessor (Code section
451)..." Therefore, prior to inclusion in the minutes, all confidential information should be
redacted.
16
Example
17
18
19
The minutes of a cable television appeal contain specific references, by the county assessor
and assessee, to growth rate, market rent, discount rate, expense ratios, contract terms, and
competitive issues.
20
21
This portion of the hearing could have been closed, at either party's request, if confidentiality had
been a concern.
22
23
Local county rules of notice and procedure 46 should include procedures for maintaining the
confidentiality of transcripts and exhibits presented during closed portions of appeals hearings.
24
OBTAINING INFORMATION FOR THE HEARING
25
26
27
28
For an appeals hearing to be most effective, taxpayers and county assessors should provide the
board members with comprehensive information regarding the subject property and the
taxpayer's and the county assessor's opinions of value for the subject property. There are various
means for both the taxpayer and a county assessor to obtain pertinent information for the hearing.
29
INSPECTION OF COUNTY ASSESSOR'S RECORDS
30
31
32
33
34
Section 408 allows an assessee, or a representative of the assessee, to inspect records at a county
assessor's office regarding the assessment of his or her property, as well as market information
regarding any comparable properties that the county assessor used in the valuation of the
assessee's property. The assessee or representative may inspect or copy all information,
documents, and records, including auditors' narrations and workpapers, whether or not required
45
46
Chanslor-Western Oil v. Cook (1980) 101 Cal.App.3d 407.
Article XIII, section 16 of the California Constitution.
Guidelines on Proper Handling of Confidential
Information--DRAFT
19
November 2007
1
2
3
4
5
to be kept or prepared by a county assessor, relating to the appraisal and the assessment of the
assessee's property, and any applicable penalties and interest. A county assessor is prohibited by
law from disclosing market information that relates to the business affairs of another taxpayer
unless the county assessor is provided with a written waiver from that taxpayer allowing the
county assessor to disclose the information.
6
7
8
9
Information obtainable under section 408 is relevant to a determination of value and may be
introduced at an appeals hearing. County assessors are expected to comply with an assessee's
reasonable request pursuant to that provision. 47 A taxpayer has a right to inspect records under
section 408 whether or not an appeal has been formally filed.
10
INFORMATION FROM TAXPAYER'S RECORDS
11
12
13
14
15
16
Section 441(d) requires a taxpayer to make available to a county assessor, for assessment
purposes, information or records regarding the taxpayer's property or any other personal property
located on premises the taxpayer owns or controls. A county assessor may obtain details of
property acquisition transactions, construction and development costs, rental income, and other
data relevant to the determination of an estimate of value, and this information may be
introduced at an appeals board hearing.
17
18
Taxpayers are expected to comply with a county assessor's reasonable requests pursuant to the
provisions of section 441(d).
19
INFORMATION FROM THIRD PARTY RECORDS
20
21
22
Section 441 permits a county assessor to gather information from as many sources as necessary
to arrive at an opinion of value. Information from other taxpayer records may be used as
reference data as long as confidentiality is maintained.
23
Example
24
25
26
27
28
In a multi-unit apartment appeal, data supporting the county assessor's use of the income
approach was obtained from several recent sales of comparable apartment buildings. To
maintain confidentiality, the comparable properties are identified in the assessor's exhibits as
A, B, C, and D, with no references to owner's name, APN, street address, or other similar
items.
29
SUBPOENAS
30
31
32
33
34
35
Rule 322 allows an applicant or a county assessor to request that the appeals board issue a
subpoena for attendance of witnesses at a hearing, or to produce books, records, maps, and
documents relevant to the issues contemplated in the application. Additionally, the appeals board
may issue a subpoena on its own motion. Subpoenas will be restricted to compelling the
appearance of a person or the production of things at the hearing and will not be used for
purposes of prehearing discovery.
47
Henderson v. Bettis, (1975) 53 Cal.App.3d 486.
Guidelines on Proper Handling of Confidential
Information--DRAFT
20
November 2007
1
2
3
4
5
When subpoenaed to appear before an assessment appeals board, a county assessor remains
subject to the confidentiality requirements of sections 408, 451 and 481. 48 If a county assessor is
requested by the subpoena to disclose confidential documents and records concerning the
property owner which constitute trade secrets, the county assessor may present such evidence
but should request that the evidence should only be examined in closed session.
6
7
8
9
10
11
12
13
14
If an applicant has subpoenaed confidential information in a county assessor's possession
concerning the business affairs of third parties, the county assessor must invoke the
confidentiality provisions of sections 408, 451, and 481 and refuse to offer evidence on that
matter unless the applicant has first sought and obtained a judicial order for disclosure.49 In order
to obtain such a disclosure, the applicant must successfully convince a court that the applicant's
due process need for access to all of the information on which the county assessor relies for the
valuation of the applicant's property outweighs the third party taxpayer's confidentiality rights.
The applicant must also prove that adequate protections are in place to prevent the misuse of the
third party confidential information.
15
16
17
18
19
Evidence Code section 1040(a) defines official information as information acquired in
confidence by a public employee in the course of his or her duty that is not open, or officially
disclosed, to the public prior to the time the claim of privilege is made. A public entity has a
privilege to refuse to disclose official information, and to prevent another from disclosing official
information, if the following conditions are met:
20
•
The privilege is claimed by a person authorized by the public entity to do so.
21
22
•
Disclosure is forbidden by an act of the Congress of the United States or a statute of this
state.
23
24
25
•
Disclosure of the information is against the public interest because there is a necessity for
preserving the confidentiality of the information that outweighs the necessity for
disclosure in the interest of justice.
26
27
28
29
30
County assessors cannot claim the privilege of refusing to release confidential information if the
person to whom the information relates authorizes the release and consents that the information
be disclosed in the proceeding. In determining whether disclosure of the information is against
the public interest, the interest of the public entity as a party in the outcome of the proceeding
may not be considered. 50
48
Section 1609.6.
Section 408(e)(3).
50
Evidence Code section 1040(b).
49
Guidelines on Proper Handling of Confidential
Information--DRAFT
21
November 2007
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