Request By:
Mr. Ralph W. Wible
Sandidge, Holbrook & Craig, P.S.C.
100 St. Ann Building
P.O. Box 727
Owensboro, Kentucky 42301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
As counsel for Hatfield Coal Company, you have appealed to the Attorney General the denial of inspection of certain records in the custody of the Kentucky Department of Revenue. The denial was made by Mr. Larry C. Moore, Supervisor, Severance Tax Section. You describe the document as "the narrative report of the severance tax audit of Hatfield Coal Company for the years 1974 and 1975."
The appeal authority of the Attorney General under KRS 61.880 pertains only to public records which the public at large is entitled to inspect. We do not deal with records which are properly excluded from inspection by any member of the public. We do not have the authority to say that a certain record must be made available to an individual who is particularly interested in the record, but which may be withheld from the public generally. Tax records which are made confidential by KRS 131.190(1) are, therefore, not within the purview of our appeal authority.
I have talked with Mr. Moore on this matter and he stated that he should have also cited KRS 61.878(1)(h) as a reason for denying inspection of the audit document you requested. Said statute provides:
"(1) The following public records are excluded from the application of KRS 61.870-61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
* * *
(h) preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
Mr. Moore said that the Auditor's narrative report of the severance tax audit includes recommendations of the Auditor and data concerning other taxpayers and opinions of the auditor; that based on the Auditor's narrative report a decision was made and reported to the taxpayer and the Auditor's work papers were made available to the taxpayer; that the decision of the Department of Revenue and the audit work papers are the only documents which the Department makes available to a taxpayer.
We believe that due to the preliminary recommendations and preliminary memoranda which are included in the Auditor's narrative report, the Department may properly withhold the narrative report from public inspection under KRS 61.878(1)(h). Under that provision of the Open Records Law and under KRS 131.190, the documents requested may only be inspected under an order of a court of competent jurisdiction.
It is, therefore, the opinion of the Attorney General that the Department of Revenue was within its authority in denying inspection of the narrative report of the severance tax audit of the Hatfield Coal Company for the years 1974 and 1975.