Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Transportation Cabinet's denial of the City of Pikeville, Office of Occupational Tax Administrator's request for the name and address of each individual employed at the District Twelve Office, Keyser Heights and Garage/Traffic Headquarters, violated the Open Records Act. For the reasons that follow, and based on the authorities cited, we remand the appeal back to the Cabinet with directions that it issue a new response to the City's request within three business days after receipt of the remand.
By letter dated August 30, 2002, Grace Ratliff, Tax Administrator, City of Pikeville, submitted the following request to the Cabinet:
As Tax Administrator for the City of Pikeville, I am requesting the following information:
This information is being requested for the collection of our Occupational License Fee . . . .
By letter dated September 5, 2002, Ed Roberts, Commissioner, Department of Administrative Services and Custodian of Records, responded to the City's request, advising:
Please be advised that the records you have requested are in active use, in storage or not otherwise available. Pursuant to KRS 61.872(5), the Cabinet will make these records available to you on or before September 10, 2002. The records made available to you will not include records exempt from disclosure pursuant to KRS 61.
The reason for the delay is the time required for the Cabinet's personnel to identify, search and retrieve the records responsive to your inquiry. Cabinet personnel will conduct this search with due diligence, but due to the nature of work duties of Transportation Cabinet personnel, the records will not be available until the date stated in the previous paragraph.
By letter dated September 9, 2002, Mr. Roberts advised the City that it was denying its request for the names and addresses, stating that release of the information "could be considered an invasion of personal privacy" and withheld disclosure of the information under authority of KRS 61.878(1)(a) .
In his letter of appeal on behalf of the City, Russell H. Davis, Jr., City Attorney, explained:
The City of Pikeville routinely audits the Kentucky Highway Department's District 12 offices located within the corporate boundaries of the City of Pikeville to insure full compliance with the City of Pikeville's Occupational License Fee Ordinance. In the past, the local highway department office has cooperated with this audit.
Recently, while cross-checking employment records with the Commonwealth of Kentucky Treasury Department, it came to the Tax Administrator for the City of Pikeville's attention that the Commonwealth of Kentucky Transportation Cabinet was not withholding occupational taxes on certain employees working in the District 12 offices within the corporate boundaries of the City of Pikeville as required. In order to verify which employees the Kentucky Transportation Cabinet should be withholding occupational license fee on behalf of the City of Pikeville, the City of Pikeville requested the identity of the Transportation Cabinet's employees working within the corporate boundaries of the City of Pikeville. The City of Pikeville was promised cooperation but never received it.
In his letter of appeal, Mr. Davis asked this office to determine whether the Cabinet's responses violated the Open Records Act. Addressing the substantive issue, he argued:
It has long been recognized that the public is entitled to know the name, position, work station and salary of a state employee. OAG 76-717; OAG 78-231; OAG 7-837; OAG-506.
While arguably the state may not have to disclose the requested employees' home addresses if the Cabinet does have a policy prohibiting such, they clearly had an obligation to release at least the names of the persons employed by the Transportation Cabinet working within the geographical boundaries of the City of Pikeville.
I would also request the Attorney General's office begin an investigation concerning the District 12, Department of Highway's lack of cooperation in determining if the Transportation Cabinet is properly withholding Occupational License Fees for its employees that work within the corporate boundaries of the City of Pikeville. KRS 82.090 provides that legislative bodies of this Commonwealth are authorized to impose occupational taxes on all state employees and officers. A department of this Commonwealth should not be permitted to avoid an audit of its records to determine if it is complying with state or local law.
After receipt of Notification of the appeal and a copy of the letter of appeal, Todd Shipp, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Shipp advised:
Be advised that the Transportation Cabinet has provided to the Occupational Tax Administrator and to the Pikeville City Attorney, Russell Davis, a complete list of the District Twelve (12) employees along with their job titles and salaries. Pursuant to KRS 61.878(1)(a), these employees home addresses have not been provided as they are specifically exempt from disclosure.
Any correspondence to these employees can be directed to the District Twelve (12) address in Pikeville. The Transportation Cabinet is trying to work with the City of Pikeville over this tax issue.
We are asked to determine whether the Cabinet's responses to the City's request constituted a violation of the Open Records Act. For the reasons that follow, we remand the appeal back to the Cabinet with directions that it issue a new response to the City's request within three business days after receipt of the remand.
The Cabinet denied the request for the names and addresses, under authority of KRS 61.878(1)(a). In its response to the letter of appeal, the Cabinet indicated that the City had been provided with a "complete list of the District Twelve (12) employees along with their job titles and salaries, " but continued to withhold the employees' home addresses. Thus, the remaining issue is the whether Cabinet violated the Open Records Act in denying the City of Pikeville's request for the home addresses of the Cabinet's District Twelve employees.
Generally, this office has recognized that personal information, such as home addresses of public employees, are within the privacy exception to public inspection under KRS 61.878(1)(a). 00-ORD-203. However, in the instant case, we have a request from another public agency that is requesting the information to enable it to perform a "legitimate government function. " KRS 61.878(5). That statute provides:
The provisions of this section [containing the exceptions to public inspection] shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
Applying what is now KRS 61.878(5), this office, in OAG 85-94, said that even if records are exempt from inspection by the general public generally, they should be made available by one agency to another for legitimate governmental purposes. See also, 93-ORD-131. We have also recognized that KRS 61.878(5) is not a mandatory provision, requiring public agencies to exchange otherwise exempt information, but is instead a matter of agency discretion. 01-ORD-119. In recognizing the provision was not mandatory, we stated that we believed that "the clear legislative intent is that governmental agencies shall cooperate with one another in carrying out governmental functions." OAG 82-548. Moreover, in 96-ORD-164, we stated, in reference to KRS 61.878(5):
This provision is aimed at avoiding duplication of public agency efforts, and is grounded in the notion that the recipient agency will responsibly and appropriately use the information. As a precondition to its invocation, a public agency seeking access to another agency's records must demonstrate that those records are "serving a legitimate governmental need or [are] necessary in the performance of a legitimate government function. "
In the instant appeal, the City's Office of Tax Administrator indicated it needed the information to verify employees from whom the Cabinet should be withholding occupational license fees on behalf of the City, in other words, to ensure the proper collection of the City's occupational tax, a legitimate governmental function.
In construing KRS 61.878(5), we believe it is the clear legislative intent, that "governmental agencies shall cooperate with one another in carrying out governmental functions." OAG 82-548. In light of our observations on this issue set out above and recognizing that sharing of the requested information is not mandatory, we remand the appeal back to the Cabinet with directions that it issue a new response to the City's request for the home addresses within three business days after receipt of the remand.
In this regard, the Cabinet, in its response to the letter of appeal, indicated its willingness to work with the City over this tax issue. Since the home address of a public employee is personal information which generally falls within the privacy exception to public inspection under KRS 61.878(1)(a), and if the Cabinet decides to provide the requested home addresses, the City should exercise caution in the use of such information and protect against the general release or publication of that information. 93-ORD-132.
If the parties can agree on a less restrictive alternative than providing the home addresses that would satisfy the City's needs in verifying employees from whom the Cabinet should be withholding occupational license fees on behalf of the City, the parties, in a spirit of cooperation should so do.
Because of the disposition of the substantive issue in this appeal, we do not address the procedural issues raised.
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.