Request By:
Mr. Ronald G. Geary, Secretary
Revenue Cabinet
Capitol Annex
Frankfort, Kentucky 40620Attn: Ms. Peggy D. Guier
Legal Services Section
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Michael A. Owsley, Attorney for Minit Mart Foods, Inc., has appealed to the Attorney General pursuant to KRS 61.880 the denial by the Revenue Cabinet of an Open Records request made by Mr. Owsley on behalf of his client. The records requested were described as follows:
"Names and addresses of all persons, including corporations and partnerships, who have filed a protest during the calendar years 1981 and 1982 of assessments of sales tax resulting from audit or otherwise with the Sales and Use Tax Section of the Revenue Cabinet. The applicant further requests notification of a time and place for examination of the records of all said protestants regarding the formal protest filed on their behalf."
The response of the Revenue Cabinet was made by letter dated February 25, 1983 by Peggy D. Guier, Attorney, Legal Services Section. Ms. Guier stated the reason for the denial is KRS 131.190(1) which prohibits the Department of Revenue and any tax official or employee from divulging any information concerning the affairs of any person or information regarding the tax schedules, returns or reports required to be filed with the department or other proper officer insofar as the information may have to do with the affairs of the person's business. The letter also cites KRS 61.878(1)(j) which exempts from mandatory public inspection records made confidential by enactment of the General Assembly.
Mr. Owsley argues in his letter of appeal that KRS 131.190(1) does not apply to his request because he has not requested that the Cabinet divulge any information regarding the affairs of any person or person's tax schedule, returns or reports.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the Revenue Cabinet acted in accordance with the Open Records Law, KRS 61.870 to 61.884, in denying Mr. Owsley's request. We believe that the request was properly denied on the authority of KRS 131.190(1) and, in addition, that there are several other legal reasons for denying the request.
The request for the names and addresses of all tax payers who have protested assessment of sales tax resulting from audit or otherwise by the Sales and Use Tax Section of the Revenue Cabinet is a request for a list which does not exist. An agency is not required to prepare prepare a list which is not already in existence. OAG 76-375.
The subject request can also be denied under KRS 61.878(1)(g) which exempts from mandatory public disclosure "correspondence with private individuals."
The second part of the request is that the requester be notified of a time and place for examination of the records of all said protestants regarding the formal protest filed on their behalf. Compliance with that part of the request is directly prohibited by the confidentiality provision of KRS 131.190(1).
As directed by KRS 61.880(2) a copy of this opinion is being sent to the requester who has the right to challenge it in court under the provisions of KRS 61.880(5).