Mass Live reports………The Massachusetts Department of Revenue can refuse to release a city-by-city list of how local marijuana taxes are distributed when there are fewer than three stores in a municipality, the state Supervisor of Records has ruled.
The ruling, which cited state law on taxpayer confidentiality, came in response to a public records request
As Massachusetts’ first legal marijuana stores are opening, cities and towns are beginning to reap the profits from a 3% local option sales tax, which municipalities can levy on marijuana businesses. The Department of Revenue collects the money, then returns it to municipalities under the same process used for hotel and meal taxes.
In April and again in July, a reporter from The Republican / MassLive.com requested a list from the Department of Revenue of how much money it distributed to each city and town from the local marijuana sales tax. Department spokeswoman Naysa Woomer provided the total amount distributed, but would not break it down by city and town.
She wrote, “Because of taxpayer confidentiality, DOR is unable to disclose the amount of the distribution data unless a community has at least three facilities.”
So far, no community has three or more marijuana stores.
The reporter appealed to the Supervisor of Records, who works for Secretary of the Commonwealth William Galvin.
The Department of Revenue, in a response to the appeal written by Tax Counsel Roger Randall of the department’s Litigation Bureau, took the position that in a city with only one store, disclosing the revenue paid to the municipality is tantamount to disclosing the amount collected from a specific tax filer. State law prohibits a state employee from disclosing taxpayer-specific information.
The department argues that when there are two retailers in a city or town, the split between the two tax filers can be determined by external information.
Randall wrote that because the disclosure is prohibited by state law, the information is not considered a public record.
The department takes the same stance on not releasing information on hotel and meal taxes in towns that have only one or two hotels or restaurants.
“With only one establishment in each city or town (with two establishments in Pittsfield), the information … is confidential tax return information, not statistical information that DOR may disclose,” Randall wrote.
In its appeal to the Supervisor of Records, The Republican/MassLive argued that the information is not actually private, because it can be obtained through other means.
Once the Department of Revenue makes a payment to a city, it becomes a public record on a municipal level. For a July story, a reporter was able to obtain the size of the marijuana tax distribution from 14 of the 15 cities and towns that received it for the quarter between February and April. Only Fall River did not respond.
However, collecting the information from municipal officials in each town is a far more onerous process — and one that will only get more complicated as new stores continue to open.
The appeal also argued that there is substantial public interest in understanding the fiscal impact of the newly legal marijuana industry. Unlike with the meals and rooms tax, there is no comparable data available, since the department will not yet release data from any municipalities.
Supervisor of Records Rebecca Murray wrote in a decision dated Aug. 15 that the Department of Revenue may withhold the records.
Murray accepted the department’s argument that disclosing tax distributions in municipalities with only one or two filers is tantamount to disclosing taxpayer-specific information, which is prohibited by state law.
“I find that the Department has met its burden to withhold responsive records,” Murray ruled.
Justin Silverman, a media law attorney and executive director of the New England First Amendment Coalition, said he believes the privacy interest of dispensaries “seems questionable,” since the information can be publicly accessed through cities and towns.
“Even if the Department of Revenue can withhold this information, that’s something that we should reconsider given how new the marijuana industry is to the commonwealth and the public interest in learning more about that industry and how it operates,” Silverman said.
Massachusetts is not alone in refusing to disclose this information says the report
The Colorado Department of Revenue similarly releases aggregated dataabout county marijuana tax distributions only when there are at least three taxpayers in a category and none represents more than 80% of the total. Oregon only releases data on a regional level and for the city of Portland, rather than by individual city or county.
However, Washington State does release county-level marijuana tax dataeven when there are only one or two businesses.