Request By:
Mr. C. Cyrus Reynolds
Property Valuation Administrator
Boyd County Courthouse
Catlettsburg, Kentucky 41139
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Debra M. Martin has appealed to the Attorney General, pursuant to KRS 61.880, your denial of her request to inspect documents located in the office of the Boyd County Property Valuation Administrator. Those records are identified as the tax maps, mapping cards, and assessment cards for three properties which she was retained to appraise. Ms. Martin explains that she is a real estate appraiser in Ironton, Ohio. Her office is located across the Ohio River from Boyd County, Kentucky, and many of her clients conduct business in Kentucky. In the course of her employment, she must review these records "to determine not only pertinent information on the subject property, but also information on recent real estate sales."
On January 10, 1992, Ms. Martin requested access to the tax maps, mapping cards, and assessment cards for the referenced properties. Although you permitted her to inspect the tax maps and property assessment cards, but refused to provide her with copies upon request, you apparently denied her request to inspect the mapping cards for the taxing districts within which each of the properties was located, as well as her request for copies. Ms. Martin indicates that while she was waiting for your response, you allowed two other individuals to review and make copies of tax maps and mapping cards, free of charge.
You advised Ms. Martin that future requests must be submitted in writing, and that you would issue a response within three days. In response to her request for a copy of your office's written open records policy, you stated that no written policy exists. In addition, you stated that she could be denied access to the requested records because her purpose in reviewing the records was commercial.
Ms. Martin asks that we review your conduct to determine if you acted consistently with the Open Records Act. She expressly identifies five areas of concern:
1. Whether she may review and copy tax maps, mapping cards and property assessment cards?
2. Whether you may properly limit access to one or two records per visit?
3. Whether your agency must adopt a written open records policy, and make that policy available to the public?
4. Whether she must submit a written request for each item she wishes to review?
5. Whether the form prepared by your office for open records requests is proper under the law?
For the reasons set forth below, we conclude that your actions were only partially consistent with the Open Records Act.
OPINION OF THE ATTORNEY GENERAL
This Office has recently recognized that records maintained by the Property Valuation Administrator are generally subject to public inspection. OAG 89-40; OAG 89-50; OAG 89-66; OAG 89-77; OAG 90-31. Those opinions represent a departure from previous opinions in which we held that property record cards were exempt pursuant to KRS 61.878(1)(g) and (h), and are premised on the notion that:
[T]hese cards are not 'preliminary drafts' or 'notes' within the meaning of KRS 61.878(1)(g). They are cards containing recordation of factual information concerning ownership, description, and assessment of property through time. The forms in question, as 'records cards' for factual data or findings, are simply not 'preliminary drafts,' 'notes,' or 'preliminary recommendations.' Accordingly, they may not be exempted from inspection under KRS 61.878(1)(g) or (h).
OAG 89-40, at p. 5. Continuing, we noted:
The cards contain factual information about real property that is either publicly recorded in records recognized as being subject to routine public scrutiny, or that may be relatively readily observed from a public place.
In OAG 89-50, we rejected invocation of KRS 61.878(1)(a), the privacy exemption, to authorize nondisclosure of such records, reasoning that ". . . information concerning ownership, location, description, and valuation of real property and vehicles is information regarding 'property,' rather than information regarding a person . . . [and is therefore] not of a 'personal nature' within the meaning of KRS 61.878(1)(a)." Thus, in answer to Ms. Martin's first query, tax maps, mapping cards, and property assessment cards are "public records, "within the meaning of KRS 61.870(2), and should be made available for review.
We have, however, recognized that certain information contained in these documents may be exempt pursuant to KRS 61.878(1)(a). In OAG 89-50, we held that disclosure of information concerning stock holdings and intangibles, as well as other personal property not subject to public recordation and valuation, may be deemed an unwarranted invasion of personal privacy. Similarly, KRS 131.190(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(j), exempts inter alia, information relating to stock holdings, intangibles, and business inventories, since such information may relate to the "affairs of any person" or "their business," within the meaning of that provision. OAG 89-40; OAG 89-50 (copies enclosed). Finally, KRS 133.047(2) prohibits the use, for commercial or business purposes unrelated to property valuation and assessment, of information obtained from property tax rolls. This ban does not apply to other types of records in the office of the property valuation administrator. OAG 89-77. (Copy attached.)
It is important to note, however, that these limited exceptions to the general rule of disclosure must be enforced uniformly, or not at all. In other words, your office may elect to enforce these exemptions by masking the excepted information and releasing the nonexcepted information, but must do so with an even hand. The Open Records Act requires an agency to adopt a uniform policy. If one person is allowed to inspect a record, all should be allowed to inspect it. OAG 82-234; OAG 82-394; OAG 89-79; OAG 89-86. "It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement." OAG 82-394, at p. 3. Accordingly, a person who requests to inspect a public record cannot be required to disclose his purpose. Simply stated, the requester's purpose has no bearing on whether the public agency should grant or deny his request. KRS 61.872; OAG 89-79.
Your actions were inconsistent with the Open Records Act to the extent that you failed to permit Ms. Martin access to the mapping cards she requested, while permitting others to inspect them, and to provide her with copies of those cards along with tax maps and property assessment cards. This Office has consistently recognized that the right to copies of public records is ancillary to the right of inspection. OAG 76-375; OAG 83-204; OAG 88-54; OAG 90-31. KRS 61.874(1) provides that copies of records must be made available upon inspection. As we noted in OAG 90-31:
Requiring inspection prior to [furnishing] copies aids in preventing frivolous requests, and may prevent controversy regarding whether the proper records were copied.
Thus, although an agency may require a requester to review records as a precondition to copying them, it cannot refuse to provide copies upon inspection.
Moreover, you apparently permitted other individuals to inspect the tax maps, property assessment cards, and mapping cards, and to obtain copies of those documents. As we have noted, your office must adopt a uniform policy with respect to both the inspection and copying of these records. All of the records must be treated as open records, though you may elect to mask any excepted information. You cannot, however, release records, mask information, or provide copies based on the identity of the requester. It is the opinion of this Office that you must allow Ms. Martin to inspect and copy the tax maps, mapping cards, and property assessment cards housed in your office. You may mask excepted information so long as you do so uniformly and without reference to the identity of the requester.
Turning to Ms. Martin's second question, we do not believe that you may properly limit access to one or two records per visit. KRS 61.872(5) provides:
If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
This Office has opined that to sustain this evidentiary burden an agency must support its claims with facts, as, for example in OAG 89-88, where we upheld an agency's denial of inspection of some eight hundred documents. While we cannot draw a precise line, it is clear that a request for multiple documents does not necessarily place an unreasonable burden on the agency. Any attempt to limit access to one or two records per visit is therefore inconsistent with the Open Records law.
With respect to question three, it is our opinion that you erred in failing to advise Ms. Martin that pursuant to KRS 61.876(3), your office is governed by the uniform rules and regulations promulgated by the Finance and Administration Cabinet relative to open records. That statute provides:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(3) The executive department for finance and administration may promulgate uniform rules and regulations for all state administrative agencies.
(Emphasis added.) This provision has been interpreted to mandate that each public agency adopt rules pertaining to access to public records. OAG 78-340. If a public agency has not adopted its own rules and regulations, the uniform regulations are deemed to apply. OAG 81-269; OAG 84-300. Accordingly, you should have referred Ms. Martin to 200 KAR 1:020, a copy of which should be available in your office.
In response to Ms. Martin's fifth question, we find that the request for records form prepared by your office is inconsistent with the Open Records Act insofar as it requires a statement of purpose. We have previously recognized that:
The purpose for which a person seeks access to a public record is not relevant to the Open Records Law. A public agency has no right to inquire as to the purpose for the inspection and copying of the record. Any inspection request form which requires the statement of the purpose of inspection is contrary to the law.
OAG 82-234, at p. 2. See also OAG 78-231; OAG 79-275; OAG 81-345; OAG 82-394; OAG 84-93; OAG 85-120; OAG 86-36; OAG 89-79; OAG 89-86; OAG 91-129. As we have demonstrated, an agency cannot require a requesting party to state his purpose in making a request, nor can it, as a matter of policy, allow inspection and copying of records for certain purposes and deny it for other purposes. With specific reference to the office of the property valuation administrator, we believe that it is permissible to inquire into an individual's purpose only if he or she requests access to the property tax rolls, pursuant to KRS 133.047(2). That statute prohibits the use of information obtained from the tax rolls for commercial or business purposes unrelated to property valuation or assessment. Any other such inquiry is inconsistent with the Open Records Act.
It is, however, our considered opinion that, with respect to Ms. Martin's fourth question, you properly advised her that she must submit a written request for each group of records she wishes to inspect. KRS 61.872(2) provides:
Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may require written application describing the records to be inspected.
This Office has never recognized the validity of a standing request. OAG 91-78. Your actions with respect to this issue were therefore consistent with the Open Records Act.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Debra M. Martin. Both your office and Ms. Martin may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).