Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Department of Revenue properly relied on, inter alia, KRS 131.190(1)(a), incorporated into the Open Records Act by KRS 61.878(1)(l), in denying James L. Hamilton's March 1, 2011, requests for all Kentucky Coal Severance Tax Returns, annual production reports, quarterly production reports, and digital maps filed by five named corporate entities for designated periods of time. Although Mr. Hamilton indicates, in his letter of appeal, that the requested records are "needed for pending litigation in Pike Circuit Court," and that the records will "not be disseminated other than for the sole purposes of the underlying litigation," we believe that KRS 131.190(1)(a) is facially applicable to those records, and that Mr. Hamilton is statutorily foreclosed from accessing or obtaining copies of them whatever his intended use. It is our position that 09-ORD-015, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal.
In 09-ORD-015, the Attorney General affirmed the Louisville-Jefferson County Metro Revenue Commission's denial of a request for the identities of a company's independent contractors that appeared on the IRS Form 1099 submitted to the Commission by the company each year. A copy of that open records decision is attached hereto and incorporated by reference. At page 3 of the decision, the Attorney General recognized that:
because they are employed by the public agency charged with collecting occupational license taxes, the Commission's employees are strictly bound by the statutory prohibitions on disclosure of information that "may have to do with the affairs of the person's business" acquired in the discharge of their duties. KRS 131.190(1)[.]
See also OAG 86-11. The illegality of divulging severance tax returns, annual production reports, quarterly production reports, and digital maps is even more apparent here than the illegality of divulging subcontractors' identities on a tax form in the referenced open records decision.
KRS 131.190(1) provides:
No present or former commissioner or employee of the Department of Revenue, present or former member of a county board of assessment appeals, present or former property valuation administrator or employee, present or former secretary or employee of the Finance and Administration Cabinet, former secretary or employee of the Revenue Cabinet, 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 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.
(Emphasis added.) That confidentiality provision is deemed incorporated into the Open Records Act by operation of KRS 61.878(1)(l) authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
The records to which Mr. Hamilton requests access fall squarely within the parameters of KRS 131.190(1)(a), and any Department of Revenue employee who divulges them may be fined up to $ 1,000 and imprisoned for up to one year. However legitimate Mr. Hamilton's need for these records may be, the Department may not divulge them except under one or more of the exceptions codified at KRS 131.190(1)(b) and (2) through (7). Mr. Hamilton offers no proof that he falls within one or more of the excepted classifications. We therefore find that the Department of Revenue did not violate the Open Records Act in denying his request in toto. Compare 10-ORD-184 (recognizing requester's limited right of access to those portions of taxpayer applications for utility license tax that do not have to do with the affairs of the taxpayers' business); see also 93-ORD-130.
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.
Distributed to:
James L. HamiltonSarah E. Pence