We were back in Franklin Circuit Court on July 10 for a hearing in an open records case, Department of Revenue v. Sommer, that is now seven years old. The hearing was unspectacular. What is spectacular is the number of days that elapsed between the date of the original request and the July 10 court date.

That number, to be precise, is 2,694. That's 2,694 days and still no records.

The open records case arose from a February 2012 request submitted by attorney Mark Sommer to the Department of Revenue. Sommer requested unappealed "final rulings" issued by the Department in tax assessment protests from January 1, 2004, to "the current date." He acknowledged the necessity of redacting any identifying or confidential data to protect taxpayer identity.

It was his position that failing to release redacted copies of the final rulings created a body of "secret law" to which Revenue alone had access, placing taxpayers at an unfair disadvantage in protesting tax assessments.

Revenue denied the request in its entirety based on two Kentucky statutes that protect taxpayer privacy. In addition, Revenue argued that redaction of the final rulings would be unreasonably burdensome under the open records law.

Sommer unsuccessfully appealed that denial to the attorney general, an erroneous interpretation for which I am responsible.

https://ag.ky.gov/orom/20121/12ORD225.doc

The Franklin Circuit Court reversed the open records decision, holding that Revenue could comply with its open records duty to disclose the substance of the final rulings "without unduly infringing on the privacy rights of taxpayers." The Kentucky Court of Appeals affirmed the Franklin Circuit Court's opinion in 2017, declaring that the final rulings could "be made available without jeopardizing the privacy interests of individual taxpayers." In November 2018, the Kentucky Supreme Court affirmed the Court of Appeals opinion.

https://cases.justia.com/kentucky/court-of-appeals/2017-2015-ca-001128-…

Revenue asked the Supreme Court to reconsider its opinion. In April, 2019, the Court declined the request. 251 days have elapsed since the Court ruled and 83 days have elapsed since it denied Revenue's request for reconsideration.

https://www.nkytribune.com/2019/04/ky-supreme-court-rules-in-favor-of-f…

While its request for reconsideration was pending, Revenue succeeded in securing passage of a new open records exception as part of a 233 page tax clean-up bill in the 2019 Regular Session. The new exception applied to—you guessed it—unappealed final rulings in tax assessment protests (more broadly stated as "information acquired by the Department of Revenue in tax administration").

Revenue did not advise lawmakers that the courts had unanimously rejected its argument that disclosure of the unappealed final rulings violated taxpayer privacy. On the final day of the session, lawmakers repealed the new exception, giving it the dubious distinction of being the shortest lived exception to the open records law in the law's 40 plus year history.

https://www.courier-journal.com/story/opinion/2019/04/01/kentucky-open-…

Because Revenue failed to produce a single final ruling after the case became final, on June 17 Sommer and his attorney, Jennifer Barber, filed a motion with the Franklin Circuit Court to compel Revenue to produce the final rulings within ten days.

This was the matter before the court on July 10.

In its defense, the attorney for Revenue argued that several procedural hurdles had to be cleared before the final rulings could be produced. Specifically, Revenue indicated that Sommer was required to submit a certified statement that he did not intend to use the final rulings for a commercial purpose.

Barber noted that a statement certifying that Sommer did not intend to use the final rulings for a commercial purpose was already a part of the record. She later advised that it was, in fact, filed with the Franklin Circuit Court during the 2014 appeal of the attorney general's decision.

(By statutory definition, commercial purpose excludes "the use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.")

That issue having been resolved, Judge Shepherd ordered Revenue to produce the final ruling by July 22. Depending on the extent of the redactions, there may be more to this very old tale.

Seven years is a long time to wait for public records. In most instances the value of the record is lost or greatly diminished. This is why we have a three day deadline for production of public records and not, as some agencies believe, a three day deadline for issuing a "placeholder" response that merely acknowledges receipt of the request.

In Sommer's case, the records have long term value. Revenue's interpretation of the tax law in assessment appeals will place taxpayers on a level playing field in pursuing assessment appeals. Its about fairness and everyone playing by the same rules. Kentucky, like many other states, will at long last make it's final rulings accessible to the public, albeit over lengthy protest.

Certainly, Revenue or any other agency, has a right to exhaust all available judicial remedies. It cannot be faulted for doing so here.

But leaving aside the protracted appellate litigation, the legal issue in the case was fully and finally resolved against Revenue 83 days ago. That's 80 days more than the open records law allows for production of public records. And still Sommer waits.

He'll wait a bit longer. What's twelve more days on top of the 2694 days that preceded it.

That number, to be precise, is 2,706 days.