Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle Harrison,Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether Marlena Slone, the Martin Co. Occupational Tax Administrator, violated the Kentucky Open Records Act in denying the request of Lilly Adkins, a reporter for The Big Sandy News, "to inspect records containing the names of the businesses and individuals who are, and are not, paying the recently imposed Business and Occupational Tax." Although a computerized database containing this information is currently being developed, a "master list" of the requested information does not yet exist and Ms. Slone is not obligated to compile such a list solely for the purpose of satisfying an open records request. See 03-ORD-239. 1 Pursuant to KRS 61.878(4), however, we conclude that Ms. Slone is obligated to redact the exempt material that is responsive to Ms. Adkins's request from the logs that have been compiled in the process of developing such a list and make the nonexempt material available for inspection by Ms. Adkins. Upon its completion, a redacted version of the list should also be made available to Ms. Adkins at her request.
On December 1, 2003, Ms. Adkins submitted the request at issue to Ms. Slone, indicating that the information sought would be used in an upcoming article of The Big Sandy News. In a timely response, Kennis Maynard, the Martin County Attorney, again denied Ms. Adkins's request on behalf of Ms. Slone, advising her as follows:
As it now stands, the records that you have requested do not exist in a form that would satisfy your request. At this time, the tax administrator is attempting to enter all names of individuals and businesses in a computer system that would facilitate the administration and collection of this tax. However, once such a system is in place, as it will be in the future, it is unclear that this information could be disclosed because of confidentiality agreements that the county has entered into with the Kentucky Revenue Cabinet.
Ms. Adkins now appeals from this denial.
According to her letter of appeal, Ms. Adkins volunteered to write down the names if necessary and "all [she was] asking for was the names." Ms. Adkins disputes Mr. Maynard's characterization of her request, clarifying that she did not request a particular format but, rather, "merely asked to view the records containing the names[.]" Citing 03-ORD-29 as authority, Ms. Adkins contends that the records contain "public information and should be made available for viewing and copying." In conclusion, Ms. Adkins emphasizes that The Big Sandy News has not requested access to "any personal information such as amounts, social security numbers, etc.," on either occasion. Although she acknowledges that people do have a right to their privacy, Ms. Adkins feels "that the public has the right to inspect public information such as the records that contain the names of the people who are and are not paying the tax."
In supplemental correspondence received by this office following initiation of the instant appeal, Mr. Maynard elaborates upon his earlier reasoning:
Since [the time of Ms. Adkins's initial request] substantially little has changed. The tax administrator is now entering many of the taxpayer names in a computerized program. Currently, not all [of] the information is on the system[,] but in the near future, the administration of the business and occupational tax will to a large extent be computerized. Until the time of completion, there are logs of the amount of payments that have been received in several places but a master [list] does not exist at this time.
It is possible that Ms. Adkins anticipated a system to be available for public perusal that would be similar to property taxes. Unlike property taxes, which are paid once and the amount paid and taxable value are [made] public, the B & O tax is substantially different. Ms. Adkins acknowledges that portions of the information are confidential. Ms. Adkins understands and respects the need for an individual's privacy and, to her credit, she is not seeking the amount of what individuals are paying. To generate and maintain such a list would be a daunting task and it would have to be compiled just for her. Payments received from a certain business or individual would, of course, be maintained. However, if a company does not make a profit, or does not have a payroll, it would not be obligated to pay and the fact that delinquency could be assumed by negative inference, could possibly lead to competitive advantage.
Eventually, the Tax Administration Office computer program will show name, address, amount paid and date received on screen. What Ms. Adkins is asking for is a list to be generated which shows whether an individual has paid or not. The information she is seeking would necessarily be commingled with portions she knows would be confidential. In essence, Ms. Adkins is requesting the generation of an amorphous list that could feasibly change with each pay period. The system could show the names and addresses of individuals and corporations obligated to pay such a tax but it is not required of that office to compile a [list] of who is and who is not paying.
According to Mr. Maynard, Ms. Adkins's request appears to be "an attempt to subvert the established delinquency procedure which was established when the business and occupational tax was enacted." In his view, even if a list of the type requested could be generated, "it is not clear whether the tax administrator could divulge such information" given the terms of the "Exchange of Information Agreement" and "Acknowledgement of Confidentiality" that Ms. Slone entered into with the Kentucky Revenue Cabinet. As interpreted by Mr. Maynard, "the specific confidentiality component of [KRS 131.190] 2 supports the general provisions as set forth in KRS 61.878(1)(l) " which prohibits the disclosure of public records or information, "the disclosure of which has been prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Mr. Maynard further asserts that the "magnitude" of KRS 131.190 is "further supported by the penalty provisions of KRS 131.990." In conclusion, Mr. Maynard suggests that an appeal to the circuit court was the appropriate remedy for Ms. Adkins to pursue rather than a second appeal involving "identical issues." For the following reasons, we conclude that the material contained in the logs referred to by Mr. Maynard that is responsive to Ms. Adkins's request is not exempt from inspection and, therefore, must be made available to Ms. Adkins.
In OAG 79-547, the Attorney General clarified that "[t]he purpose of the Open Records Act is not to provide information, but to provide access to public records which are not exempt by law." Id., p. 2; 03-ORD-239, supra, p. 3. Accordingly, this office has consistently recognized that public agencies are not statutorily obligated to honor requests for information as opposed to public records. 03-ORD-239, supra, p. 4. For example, in 93-ORD-51 we held that the Open Records Act:
was not intended to provide a requester with particular "information," or to require public agencies to compile information to conform to the parameters of a given request. See, e.g. OAG 76-375; OAG 79-547; OAG 81-335; OAG 86-51; OAG 87-84; OAG 89-77; OAG 89-81; OAG 90-19. Rather, the [Act] provides for inspection of reasonably identified records.
Id., p. 4; 03-ORD-239, supra, p. 4; 02-ORD-174; 02-ORD-165, p. 4. Because Ms. Adkins's initial request presumed the existence of a list and the information to which she sought access did not yet exist in that format, her request was properly characterized as a request for information rather than a request to inspect "reasonably identified records" and consequently denied. She is now requesting to inspect any records currently in existence identifying those businesses and individuals that have paid the recently imposed tax as well as those whose accounts are delinquent. Contrary to Mr. Maynard's assertion, her current request is distinguishable in this crucial respect.
At page 3 of OAG 87-84, the Attorney General observed:
Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information. (Emphasis added).
93-ORD-51, supra, p. 4; 02-ORD-174, supra, p. 2; 03-ORD-239, supra, p. 4. "It is not necessary for an agency to make a list of items from its records if such a list does not exist." 03-ORD-239, supra, p. 4, citing OAG 76-375. While the agency should make the records containing the information available for inspection and copying, a requester cannot require the agency to compile the information in a certain format. Id., p. 4, citing OAG 91-12, p. 5; OAG 82-279, p. 1. (Emphasis added). Rather, "'what the public gets is what [the public agency has] and in the format in which [the public agency] has it.'" 96-ORD-251, p. 1, citing OAG 91-12, supra, p. 4; 03-ORD-239, supra, p. 5. In 03-ORD-239, we found this precedent to be dispositive of the question presented. Although it dictates the opposite result, this precedent is equally applicable here.
According to Mr. Maynard, a list containing the information Ms. Adkins is requesting still does not exist. Now, as before, we have no reason to question the truthfulness of this assertion. It is axiomatic that "a public agency cannot afford a requester access to a document which does not exist." 93-ORD-51, supra, p. 4; 03-ORD-239, supra, p. 5. See 94-ORD-140. In responding to Ms. Adkins's letter of appeal, however, Mr. Maynard acknowledges the existence of "logs" containing the "amount of payments that have been received" with the necessary implication being that the names of those from whom the payments were received is also listed. No credible argument can be made that such logs do not constitute public records subject to inspection absent an applicable exemption. Ms. Adkins concedes that the logs contain confidential information as observed by Mr. Maynard. "[T]o her credit," however, Ms. Adkins is not seeking to learn the amount of taxes paid by the individuals and businesses, only the names of the parties and the status of their accounts.
Pursuant to KRS 61.878(4): "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." In light of this express mandate from the General Assembly, we conclude that Ms. Slone must redact the excepted material from the logs in question and then allow Ms. Adkins to examine the remaining material as requested in order to fulfill her obligation under the Open Records Act. Thus, the question becomes whether the information to which Ms. Adkins has requested access is among that "excepted" from inspection.
In 00-ORD-117, a copy of which was attached to 03-ORD-239 for the parties' reference, we found that the City of Hopkinsville had violated the Open Records Act by improperly withholding five entries from its business license database on the basis of a "promise of confidentiality" 3 and without reference to one or more of the exceptions codified at KRS 61.878(1)(a) through (l). Id., p. 5. As we observed in that opinion, this office has consistently recognized that business license records are generally open to public inspection. OAG 78-809; OAG 82-435; OAG 84-93; OAG 85-1; OAG 87-57; 92-ORD-1119; 94-ORD-64. Id., p. 5. These opinions were premised on the notion that:
An occupational license is a temporary grant of special privilege by the local government. As such, it is our opinion that public access to the information contained in the license, such as business name and address, is not an unwarranted invasion of personal privacy.
Said another way:
The very purpose of a license is to regulate businesses and professions in the interest of the public. We believe that the public is entitled to know what businesses and professions have been licensed to exist and operate within a local governmental unit.
Id., citing OAG 78-809, p. 2.
Unlike the City of Hopkinsville, Mr. Maynard does advance a statutory argument in support of his denial rather than relying solely upon a "promise of confidentiality. " More specifically, Mr. Maynard relies upon Section 1 of the Exchange of Information Agreement between the Revenue Cabinet and Ms. Slone which, in relevant part, provides:
(a) Information concerning the affairs of a taxpayer or the taxpayer's business is made available only on a confidential basis in accordance with the provisions of KRS 131.190.
(b) Such information is to be used for official purposes only.
(c) Such information is not to be disclosed to any third party, nor used in any way or in any manner that would cause it to become part of a public hearing or proceeding or to become part of any public record except as provided in KRS 131.190.
According to Mr. Maynard, when viewed in light of KRS 61.878(1)(l), the foregoing language operates to preclude Ms. Slone from disclosing any information related to the taxpayers with the exception of their names and addresses. Although we are aware of no authority interpreting KRS 131.190 in this exact context, we are not without guidance in addressing this apparent conflict.
In 94-ORD-64, we resolved a similar issue in favor of the requester. At issue in that appeal was whether an ordinance enacted by the City of Pikeville that restricted public access to information submitted by parties applying for a business license was properly invoked to deny a request for records reflecting delinquent payments of a business license tax and the amount of the penalty assessed in each instance of delinquency. We determined that the City had improperly relied upon the local ordinance in denying a request for the identities of those delinquent in paying the occupational tax, but properly withheld the amount of the taxes owed since disclosure of the latter would have revealed the taxpayers' business affairs. In so doing, we adopted the following excerpt from OAG 82-435:
In enacting the Open Records Law, KRS 61.870-61.884, the General Assembly preempted the field of inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.
94-ORD-64, p. 4, citing OAG 82-435, p. 2.
More recently, we were confronted with the question of whether the City of Sheperdsville and the Sheperdsville-Bullitt County Tourist & Convention Commission properly relied on a local ordinance that paralleled KRS 131.190(1) in significant respect, KRS 131.190 and KRS 61.878(1)(a), (c), (i), (j), and (l), in denying a request for the names and locations of businesses that were delinquent in paying their food/restaurant taxes. 01-ORD-63. Relying upon 94-ORD-64, we found that the ordinance in question did "not abrogate or supercede the mandatory disclosure provisions of the Open Records Act as construed" in the cited decisions. Id., p. 5. To begin, we reiterated the purpose of a business license and the general principle that disclosure of the information contained in an occupational license does not constitute an unwarranted invasion of personal privacy. Relevant for present purposes, we then engaged in the following analysis:
Hence, the public is entitled to know what businesses and professions have been licensed to exist and operate within the boundaries of the governmental unit. We have also recognized that nothing in the Open Records Act prohibits the disclosure of the fact that a person is delinquent in paying his or her occupational tax. " OAG 81-309. "Whether taxes are being paid by all persons who are legally obligated to pay them is a legitimate interest of the public and any person has a right to check on that matter." OAG 82-435, p. 3. (Emphasis added).
Nevertheless, we have held that the public's right of inspection is not unlimited. The public cannot have access to information about a license which is expressly made confidential. KRS 131.190(1) prohibits the release of certain tax records, and provides: [See footnote 2]
Records disclosed to the City to obtain an occupational license or collect a license fee, such as social security number[s] and federal identification numbers, remain confidential, and are exempt from public inspection. OAG 82-2; OAG 84-93. Information which reveals the affairs of the business, such as profits, taxes, deductions, and salaries, is also exempt. To the extent that disclosure of the amount paid or owing, or the penalty assessed reveals the private details of the taxpayer's business, it is not subject to disclosure.
94-ORD-64, p. 2, 3; See also, 96-ORD-96; 97-ORD-22; 00-ORD-117.
The existence of a city ordinance mandating the confidentiality of "all information obtained . . . in the administration of [the occupational license fee] ordinance . . ." On this issue, the Attorney General observed:
Id., p. 3.
We find this reasoning to be equally determinative here.
On its face, the language from the agreement between Ms. Slone and the Revenue Cabinet cited by Mr. Maynard in support of his position does not appear to conflict with the Open Records Act. As evidenced by the foregoing authority, however, the expansive interpretation of KRS 131.190 proposed by Mr. Maynard is not consistent with the Open Records Act and runs counter to the line of opinions interpreting the Act and its exceptions in this context. Whether a business and occupational license tax is "'being paid by all persons who are legally obligated to pay [it] is a legitimate interest of the public . . . .'" Id., p. 5, citing OAG 82-435, p. 3. The Attorney General has therefore determined that the public's interest in which businesses and individuals are being taxed, where they are located, and "whether they are delinquent in paying their taxes (but not the amount of the taxes owed or any other information that reveals the affairs of their businesses), is superior to any privacy interest asserted." Id. Accordingly, we conclude that Ms. Slone must redact the exempt material, i.e., the amounts owed by the parties, from the existing logs and make the nonexempt material, i.e., the names and delinquency status of the parties, contained therein that is responsive to her request available to Ms. Adkins. Upon completing the database currently in development, Ms. Slone must repeat this process and provide Ms. Adkins with a redacted version at her request.
A party aggrieved by this decision may appeal it by initiating an 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.
Lilly AdkinsThe Big Sandy NewsP.O. Box 1314Inez, KY 41224
Marlena SloneMartin County Tax Administrator Occupational Tax Administrator P.O. Box 309Inez, KY 41224
Kennis MaynardMartin County AttorneyP.O. Box 414Inez, KY 41224-0414
Footnotes
Footnotes
1 In 03-ORD-239, we were confronted with the related but distinct issue of whether Ms. Slone violated the Act in denying Ms. Adkins access to "a list of all businesses [and] individuals to whom a B & O tax form was sent and the names of all businesses [and] individuals who have paid the tax." Id., p. 1. At the time, Ms Slone was in the process of "entering data into a computer system to establish a manageable procedure for collection the tax and creating a suitable record keeping system" as explained by Kennis Maynard, the Martin County Attorney. Id., p. 2. Although Mr. Maynard conceded that compilation of a master list identifying those to whom the form was sent would be ideal manner of addressing this concern, no such list had been compiled yet. Id. Because Ms. Slone could not make available that which did not exist nor was she obligated to create a document that did not already exist, we concluded that she had properly denied the request from Ms. Adkins.
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2 KRS 131.190 contains exceptions to the general rule that information acquired in tax administration is not to be divulged. Pursuant to KRS 131.190(1):
No present or former secretary or employee of the Revenue Cabinet, member of a county board of assessment appeals, property valuation administrator or employee, or any other person, shall intentionally and without authorization inspect or 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 cabinet 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.
Pursuant to KRS 131.190(2):
The secretary shall make available any information for official use only and on a confidential basis to the proper officer, agency, board or commission of this state, any Kentucky county, any Kentucky city, any other state, or the federal government, under reciprocal agreements whereby the cabinet shall receive similar or useful information in return.
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3 With respect to the five entries, the City denied the requester access "'at the instruction of the City Attorney because applying businesses were told the City would hold the information in confidence. . . .'" 00-ORD-117.
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