Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Pulaski County Property Valuation Administrator (PVA) violated the Open Records Act by refusing to provide Ray Gough with several "Application for Exemption under the Homestead/Disability Amendment" forms filed by Floyd and Elva Kirkpatrick for their residence in Somerset. We find that the PVA improperly relied on KRS 131.190 to deny Mr. Gough's request.
Section 170 of the Constitution of Kentucky provides for a disability exemption from real property tax liability, in pertinent part, as follows:
There shall be exempt from taxation ? real property maintained as the permanent residence of the owner, who is sixty-five years of age or older, or is classified as totally disabled under a program authorized or administered by an agency of the United States government or by any retirement system either within or without the Commonwealth of Kentucky, provided the property owner received disability payments pursuant to such disability classification, has maintained such disability classification for the entirety of the particular taxation period, and has filed with the appropriate local assessor by December 31 of the taxation period, on forms provided therefor, a signed statement indicating continuing disability as provided herein made under penalty of perjury ?
(Emphasis added.) On January 23, 2014, Mr. Gough requested copies of all disability exemption application forms filed by Floyd and Elva Kirkpatrick from 1997 onward for their residence in Somerset. Sherry Tomlison in the PVA's office promptly faxed Mr. Gough the Kirkpatricks' exemption forms for 2002 and 2010, but not for any other years.
On January 24, 2014, in response to a follow-up e-mail, Ms. Tomlison informed Mr. Gough that "[t]he only other info I have on Mr. Kirkpatrick are the letters he returned into our office yearly to confirm his Disability Exemption. " When Mr. Gough followed up again on January 30 and asked for those documents specifically, Ms. Tomlison replied: "I have given you the information regarding the tax bill ? and I am not at liberty to give out any other documents."
Mr. Gough requested the Kirkpatricks' exemption application forms from the PVA once again on March 21, 2014, but never received a reply. He appealed to the Attorney General on April 23, 2014.
KRS 61.880(1) requires that a public agency either grant or deny a request for records within three business days. If an agency denies inspection of a record, it must "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " Since the withheld application forms were within the scope of Mr. Gough's January 23 request, and since Ms. Tomlison's January 30 response was untimely as to those records and stated no basis for denying inspection, we find that the PVA committed a procedural violation of KRS 61.880(1). Likewise, the lack of any written response to Mr. Gough's second request on March 21, 2014, constituted a procedural violation.
We turn to the substantive issues on appeal. In the PVA's response to this appeal dated May 5, 2014, Assistant County Attorney Jessica M. Crockett cites KRS 131.190(1)(a), which states in pertinent part:
No ? 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 any information regarding the tax schedules, returns, or reports required to be filed with the [D]epartment [of Revenue] 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.)
Ms. Crockett maintains that the final limiting phrase, "insofar as the information may have to do with the affairs of the person's business," applies only to the immediately preceding item, "information produced by a hearing or investigation," and thus does not operate to limit the statute's prohibition on disclosing "information ? of the affairs of any person." Therefore, the PVA argues that information on the "affairs of any person" is confidential whether it is business-related or not. This argument is consistent with our analysis of KRS 131.190(1) in 04-ORD-038. Under any reading of the statute, however, we find that the information at issue is not confidential.
In the PVA's May 5 response, Ms. Crockett identifies the allegedly protected information as follows:
Here, while the only generally confidential information written on the form is indeed the party's social security number, the Pulaski County PVA asserts when determining whether or not a document deals with the "affairs of any person" the document must be viewed as a whole as to what information the document reflects. Here, the Homestead and/or Disability Exemption Form is certifying that the taxpayer has been determined disabled.
(Emphasis added.) Thus, the only information for which confidentiality is claimed, besides the social security number (which Mr. Gough agrees may be redacted), is the existence of a disability determination.
The PVA contends that the fact "that the taxpayer has been determined disabled" is confidential information under KRS 131.190(1)(a) . Yet, in its communications with Mr. Gough, the PVA has already divulged the granting of the disability exemption for the years at issue, which necessarily means there has been a disability determination. Since KRS 131.190(1)(a) is concerned with divulging information, the statute does not prevent the PVA from allowing Mr. Gough to inspect a form containing only the same information the PVA has already divulged.
Furthermore, the "affairs of any person" are "matters associated with a person that are recognized as being private, and not subject to routine public perusal." OAG 89-50, cited in 04-ORD-038. The fact of the Kirkpatricks' disability is inseparable from their tax exemption, which is a matter of public record.
This analysis is in agreement with KRS 131.190(1)(b)(2), which states as follows:
The prohibition established by paragraph (a) of this subsection does not extend to [a]ny matter properly entered upon any assessment record, or in any way made a matter of public record.
(Emphasis added.) The fact that Mr. and Mrs. Kirkpatrick were disabled is self-evident from the granting of a disability exemption. Under Section 170 of the Kentucky Constitution, people cannot qualify for the disability exemption from property tax unless they have "filed with the appropriate local assessor [,] on forms provided therefor, a signed statement indicating continuing disability. ..." The fact of the disability determination, as the sole legal basis for the tax exemption, is inevitably already "a matter of public record" under KRS 131.190(1)(b)(2). Therefore, the prohibition in KRS 131.190(1)(a) does not apply. See 11-ORD-174.
Ms. Crockett additionally cites 5 U.S.C. § 552a, a section of the federal Administrative Procedure Act, for the proposal that no record may be disclosed without the consent of "the individual to whom the record pertains." Since the Administrative Procedure Act governs only federal agencies, under 5 U.S.C. § 551(1), this argument is without merit.
In conclusion, we find that the Pulaski County PVA procedurally violated KRS 61.880(1) by failing to make a timely written disposition of Mr. Gough's request as to the withheld records and failing to cite a statutory exemption. Furthermore, the PVA improperly invoked KRS 131.190 to withhold the disability exemption application forms, since the existence of a disability is public record where a disability exemption from property tax is granted.
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 proceedings.
Distributed to:
Mr. Ray GoughMs. Sherry TomlisonMr. T. W. ToddJessica M. Crockett, Esq.