Request By:
Mr. J. Rick Jones
Attorney
Department of Banking and Securities
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Mr. Lamonte Hornback, president, First Hardin National Bank and Turst, has appealed to the Attorney General as provided by KRS 61.880 the denial of his request for inspection of a certain public record in the custody of the Department of Banking and Securities. The record is described as the application filed with the Department for the granting of a bank charter to a group of Elizabethtown businessmen.
The Department released to Mr. Hornback the names of six directors who are also the incorporators of the Bank. The Department refused to release the name of the person who will be the chief executive officer of the Bank if the application for organization of the Bank is approved and refused to allow inspection of the application containing the name of that person. You responded on behalf of the Department and stated that the name of the proposed chief executive officer was being withheld from Mr. Hornback on the authority of KRS 61.878(1)(a) which exempts from mandatory public inspection "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In your letter you state as follows:
"As you are certainly aware, it is most likely that the officers of the proposed bank are presently employed in existing banks. It is entirely possible that a premature release of their names would cause them difficulty in their present employment. If and when the application is formally approved, then this information will be released."
Mr. Hornback contends that the identity of the chief executive officer of the proposed bank is material information to him and his bank in deciding whether to protest the application. We have examined the banking statutes and regulations and found that they require that the application shall present a copy of the proposed articles of incorporation and the names of the incorporators who will be the directors of the bank, but they do not require that the bank's executive officers be identified. In a telephone conversation you informed us that it is the practice of the Department of Banking to require that the identity of the executive officers be given in the application.
OPINION OF THE ATTORNEY GENERAL
It is our opinion that if the identity of the chief executive officer of the proposed bank is material to the Department of Banking in passing on an application to organize a bank, it is, also, material to any persons having standing to protest the application. Under the Open Records Law, however, it is not for the Attorney General to say who is entitled to see a particular record but only to pass upon whether the record should be made available to the public at large. You have withheld the record on the grounds that the disclosure would be an unwarranted invasion of the privacy of the proposed executive officer. The question presented is, therefore, whether the privacy rights of the individual outweigh the public interest in the disclosure of the information contained in the application. We conclude that the public interest requires that the entire application of the proposed bank should be open to public inspection.
The statute, KRS 287.050, only requires the Commissioner of Banking to investigate "the financial standing, moral character and capability of each of the incorporators, and determine whether there is reasonable assurance of sufficient volume of business for the proposed corporation to be successful, and whether the public convenience and advantage will be promoted by the opening of the proposed corporation." There is nothing in the statute giving confidentiality to any of the matters investigated by the Commissioner. Since the proposed executive officer of the proposed bank is not mentioned in the statute the Commissioner is not required to know his identity, but if the Commissioner elicits that information from the applicants and has the information on file in a public record, it should be available for public inspection.
In summary, it is our opinion that the Department of Banking improperly denied inspection of subject document under the Open Records Law, KRS 61.870-61.884.