Request By:
Hon. Peggy D. Guier, Attorney
Legal Services Section
Revenue Cabinet
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Ray A. Cohn, a reporter for the Lexington Herald Leader Company, has appealed to the Attorney General pursuant to KRS 61.880 the denial by the Revneue Cabinet his request for certain information as follows:
"1. Has the Revenue Cabinet closed out the motor vehicle use tax account of the office of the late C. Ollie Robinson, clerk of Floyd County?
2. If so, did Robinson owe any money?
3. If the account has been settled, what are the terms of the settlement?
4. Did Robinson owe anything on the same account in calendar years 1976, 1977, 1978, 1979, 1980, 1981 and 1982?
If so, how much did he owe and how much and when did he pay off those debts?
6. Although audits done for those years state that Robinson did not keep books in accordance to uniform accounting practices required by state law the Revenue Cabinet took no action to enforce this requirement. Why was no action taken?"
In your letter of reply to Mr. Cohn dated May 17, 1983 you stated that the Revenue Cabinet could not reveal the requested information because of the provisions of KRS 131. 190(1) which reads as follows:
"No present or former commissioner of the department of revenue, member of a county board of assessment appeals, property evaluation administrator or employe thereof, or any other person, shall divulge any information acquired by him of 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, or any information produced by a hearing or investigation, insofar as the information may have to do with the affairs of the person's business. This prohibition does not extend to information required in prosecutions for making false reports or returns of property for taxation, or any other infraction of the tax laws, nor does it extend to any matter properly entered upon any assessment record, or in any way made a matter of public record, nor does it preclude furnishing any taxpayer or his properly authorized agent with information respecting his own return. Further, this prohibition does not preclude the commissioner or any employe of the department of revenue from testifying in any court, or from introducing as evidence returns or reports filed with the department, in an action for violation of state or federal laws."
You also stated that the Revenue Cabinet would withhold the requested information because "the information you have requested would be unavailable under KRS 61.878(1)(g)(h)."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that a proper request to inspect the documents containing the information requested by Mr. Cohn should be complied with by the Revenue Cabinet and that the reasons you gave in your letter for denying the requested information have no validity.
KRS 131.190(1) provides a cloak of confidentiality for taxpayers, not for public officials. It also applies only to living taxpayers who are still in business and not to deceased persons.
The permissive exemptions provided in the Open Records Law by KRS 61.878(1)(g)(h) have no application to reports required to be filed by local officers with a state cabinet or department. Those exemptions exempt preliminary drafts, notes, correspondence with private individuals, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Your response to Mr. Cohn was not in accordance with the Open Records Law, KRS 61.870 to 61.884. On the other hand, Mr. Cohn did not state a proper request to inspect public records since he requested information rather than access to public records. We believe that Mr. Cohn is entitled to inspect the records which contain the information he requested if such records exist. Under the Open Records Law a public official is not required to answer what, why and how but is required to allow inspection and furnish a copy for a fee of any original public record which is not exempt by law.
The Revenue Cabinet has the right to challenge this opinion in court as provided by KRS 61.880(5). As directed by statute a copy of this opinion is being sent to the requester.