Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Office of the Butler County Judge/Executive's denial of Ms. Cheryl A. Martin's open records request, on behalf of the Butler County and the Green River Republican Banner (hereafter "Banner"), for a list of individuals and businesses who paid the county's net profits tax in 1995. In her request, Ms. Martin stated she was not asking for the amounts each entity paid or any other confidential material included in the reports.
Mr. Richard J. Deye, Butler County Attorney, in responding on behalf of the County Judge/Executive's office, initially denied Ms. Martin's request on the basis of KRS 61.878(1)(l), stating that disclosure of the records was prohibited by KRS 131.190. In his denial letter, Mr. Deye states:
KRS 131.190 states in pertinent part "No . . . 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 . . . (any) other proper officer insofar as the information may have to do with the affairs of a person's business."
Upon receipt of the denial letter, the Banner asked Mr. Deye to reconsider his position in light of OAG 87-57. In a follow-up letter, Mr. Deye again denied Ms. Martin's request, stating that OAG 87-57 was not applicable to their situation. In his follow-up letter, Mr. Deye states in part:
OAG 87-57 makes reference to OAG 84-93 wherein it states that information which reveals the affairs of the business such as profits, taxes, deductions and salaries would also be exempted (from an open records request). The request which has been filed by the Banner requests a listing of the individuals and businesses who paid the county's net profits tax in 1995. While the point is obviously arguable, the county supports the position that the release of a listing of individuals or entities that paid the net profits tax in fact reveals information concerning the affairs of that business. Those entities which would appear on any such list by definition had some type of profit. Furthermore, the fact that a particular individual or entity may not be on the list as having paid net profits taxes in 1995 would not necessary [sic] indicate that that business was or was not profitable nor that it was or was not in compliance with the net profits tax ordinance. The county routinely accepts any filing extensions granted for federal or state income tax purposes when considering whether or not a net profits tax return is delinquent.
In this appeal, we are asked to review whether this denial constituted a violation of the Open Records Law. For the reasons which follow, we conclude the Office of the Butler County Judge/Executive improperly denied the Open Records request.
This office has previously recognized that the identity of companies legally obligated to pay taxes and whether those taxes are being paid is a matter of legitimate public concern. 93-ORD-130; OAG 83-263; OAG 86-11. Information as to whether a company paid a net profits tax, without disclosing the amount paid, does not reveal the affairs of the business within the contemplation of KRS 131.190. OAG 86-11.
Moreover, in our opinion this would not be a violation of KRS 131.190 which, if it were, would potentially subject the Judge to a penalty. KRS 131.190 specifically excepts "public records" from the non-disclosure rule. KRS 131.190(1). Since we conclude there are indeed public and open records, then in our opinion the release of these records is not improper under this statute.
The fact that a company's name is not on a list which have paid the net profits tax does not, in and of itself, reveal the affairs of that business. The fact that a company's name does not appear on the net profits tax list may be due to a number of reasons as noted by Mr. Deye in his follow-up letter, quoted in part above.
Accordingly, the records containing the information requested by Ms. Martin should be made available for her inspection. The Open Records Act does not require an agency to create a record that does not already exist. However, since a public agency is required by KRS 61.878(4) to separate the excepted material from the nonexcepted material, it may either compile a list of companies that paid the net profits tax or provide a copy of the records in which the confidential portions of the records have been redacted.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.