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 Hickman County Property Valuation Administrator (PVA) violated the Open Records Act, or subverted the intent of the Act short of denial of inspection, by refusing to allow Ray Gough to browse through the PVA property record cards or equivalent information in a computer database. In accordance with OAG 89-40, we find no violation or subversion of the Act.
On April 25, 2014, Mr. Gough delivered in person a request to the PVA for "inspection of the PVA Cards that are located in your office." He acknowledged "if I request assistance or copies, that as a commercial business I will be charged by the fee schedule provided by the Department of Revenue instead of the fees that are outlined in KRS 61.874." The PVA, Anita C. Mullins, issued a response on April 30, 2014, stating that Mr. Gough had not given "an accurate description"
On April 25, 2014, Mr. Gough delivered in person a request to the PVA for "inspection of the PVA Cards that are located in your office." He acknowledged "if I request assistance or copies, that as a commercial business I will be charged by the fee schedule provided by the Department of Revenue instead of the fees that are outlined in KRS 61.874." 1 The PVA, Anita C. Mullins, issued a response on April 30, 2014, stating that Mr. Gough had not given "an accurate description" and asking that he "more precisely describe which records to which [he was] requesting access."
On May 5, 2014, Mr. Gough made a second request, this time in two parts. The first item repeated the request "to inspect the file and the records in the file that contain the PVA cards, " while the second item was a request "to access and inspect the computer database that contains the nonexempt property records that are under the care of your office." In an undated reply, the PVA indicated in response to the first item that "[a]ccess to the publicly available, non-exempt files will be granted as required by KRS 133.047," but cited OAG 89-40 for the proposition that Mr. Gough need not "be granted free, unfettered access to the records of this office." In response to the second item, she stated that "[t]his office does not have a public access database that contains nonexempt property information you are requesting. "
Some further exchanges of correspondence occurred between Mr. Gough and the PVA. While Mr. Gough characterizes his letters as additional open records requests, we find them in substance merely duplicative of his prior requests. In her last response to Mr. Gough, Ms. Mullins explained her reason for not allowing him entry to the office's database, which apparently stems from the same concerns as the PVA's unwillingness to allow him "free, unfettered access" to the property cards:
This office does not have a resident information technology person, nor does the PVA or her employees have the technological acumen to allow you to access its public records via any other means than the procedure previously recited. ?
There is a database, but it is not formatted to allow unfettered access to non-employees. ? [Citation to OAG 89-40.]
There is no access granted to any non-employee of this office or of state government to the computers contained in this office which contain the database to which you want unregulated access. There is no computer located in this office which could supply the access to the information sought because the state-developed programs run on the computers are not set up to differentiate between information which may be disclosed and which may be disseminated. Ergo, an employee must be assigned to extract the information sought by you
Mr. Gough initiated this appeal on October 23, 2014, claiming the right to inspect all property cards and the equivalent database information without assistance or supervision. Ms. Mullins responded on November 4, 2014, reiterating that Mr. Gough was told he could "see any card he wished" but "could not be allowed to rummage through the property cards willy-nilly." She also added that supervision was needed to ensure that the integrity of the PVA's records was maintained.
In OAG 89-40, relied upon by the PVA, we dealt with "'property record cards' (sometimes called mapping cards) " in the context of an individual who had requested unrestricted access to the records maintained in the Barren County PVA's office. We observed that the cards contain information about the ownership, description, and prior assessments of property, and also "may contain 'notes,' as blocks are provided for this purpose on them." We stated that pursuant to the exemption for notes under what is now KRS 61.878(1)(i) "[t]he 'note' areas of the cards may [be], but are not required to be, masked or covered when inspection is allowed." 2
In the same opinion, we made clear that property record cards are not "tax returns" within the meaning of the confidentiality provisions of KRS 131.190. Nevertheless, we stated:
Because of the nature of the records held by your office (many of which involve current, active public tax accounts), the relatively limited staffing of PVA offices, and the duty of the PVA to properly maintain PVA files, the PVA should not turn over the files for wholesale rummaging. The records must be protected against removal, alteration, and misfiling. Additionally, in some instances actual returns, schedules, and notes, are filed together with a given OAG 89-40 (emphasis added). According to the PVA's representations, the office's database, like the property card files, is likely to contain information that must be masked or segregated, and this cannot be done automatically. Thus, in either case, a PVA employee must assist Mr. Gough in obtaining access to individual property records, which must be specified so that the PVA can determine whether any confidential or exempt material must be segregated under KRS 131.190, KRS 61.878(1)(l), or KRS 61.878(1)(i), and the non-exempt material provided for inspection pursuant to KRS 61.878(4).
Therefore, we find that the Hickman County PVA did not violate or subvert the intent of the Open Records Act by requiring Mr. Gough to specify the property cards or individual electronic records he wished to inspect. Because this threshold issue is dispositive of the appeal, we do not reach the other issues that have been raised in this appeal, including the existence of a commercial purpose, the appropriateness of fees, and the availability of records online through a third party.
One additional issue raised by Mr. Gough concerns the adoption of rules or regulations by the PVA. KRS 61.876 requires each public agency to adopt rules and regulations "to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, " and to display them in a prominent location. If the PVA has not complied with these requirements, this would be a violation of KRS 61.876.
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 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.
Mr. Ray GoughAnita Mullins, PVASue Ellen Morris, Esq.Douglas Dowell, Esq.Greg A. Jennings, Esq.
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