Request By:
Mr. C. W. Norton
Director
Division of Tax Collection
Lexington-Fayette Urban County Government
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
Ms. Betty Malkin of The Winchester Sun has appealed to the Attorney General under KRS 61.880 your denial of inspection of certain public records in your custody. The records are described as records containing "the date at which a particular Lexington business took out an occupational license. " In denying access to the information desired you cite OAG 78-809 and an opinion by Judge George E. Barker, Fayette Circuit Court, Civil Branch, Sixth Division, in the case of Lexington-Fayette Urban County Government v. Woestendiek, No. 79 CI 13. Both the Attorney General's opinion and the court opinion deal with the same controversy and the same parties. They also reach the same conclusion, to wit: that the names of individuals and businesses which are licensed by the Lexington-Fayette Urban County Government should be made available to the public.
You apparently based your denial of information as to the dates of licenses on your conclusion that the court decision and the Attorney General's opinion limit the public's right to know only the names of businesses which are licensed and that all other information is to be kept confidential.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the public has the right to know, in addition to the name of businesses licensed by Lexington-Fayette County Government, the dates of applications and issuances of business licenses.
We will not make a ruling at this time as to what other information about business licenses the public may be entitled to, but we have already ruled in OAG 81-309 that the public has the right to know the names of persons or businesses which are delinquent in paying their occupational taxes. In that opinion we said:
And, although, tax records cannot be made totally available for public inspection because of the restrictions placed by KRS 131.190, non-exempted information can be made available, and must be made available, under KRS 61.878(3) . . ."
We can understand how you make the interpretation which you do of the opinion of the Fayette Circuit Court because on the first page of the opinion it is stated that computer print-outs containing the names of those individuals and businesses which have requested by application that an account be set up in their name should be made available for public inspection, and the Court went on to say:
"It is further the opinion of this court that all other occupational license records maintained by plaintiffs are excluded from public access."
However, Judge Barker's opinion, on pages 6 and 7, expressly reserves judgment as to making other information available to the public. The opinion says:
"It is the opinion of this court that the request was not sufficiently definite to notify the plaintiff that only the names of current license holders were desired. If another request, more specific in nature, is made then the government should have the right to base their refusal specifically upon the provisions of KRS 61.872(5) which reads as follows:
'If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.'
"It is the opinion of the court that it would be improper and unwise to order the plaintiff to compile a list of licensed holders without giving plaintiff the opportunity to submit evidence as to whether or not this would place upon the government an unreasonable burden. "
Since Judge Barker has not ruled on the question of information additional to the names of licensees, we must give our opinion without the benefit of his judgment. We believe that the public is entitled to know all the information about a license issued by the government which is not expressly made confidential by statute. In City of Louisville v. Seebree, Ky., 214 S.W.2d 248, 253 (1948), the Court said:
"Specifically or technically speaking, to license means to confer on a person the right to do something which otherwise he would not have the right to do -- a special privilege rather than a right common to all persons. It imports regulation."
The public has the right to know whether or not a person or business is licensed by state or local government to practice the particular business or occupation. The public also has the right to know whether a person is enrolled on the tax roll and is paying his legally imposed taxes.
Since a license is a temporary grant of privilege, the effective period of the license is of the essence. To know simply that a person has been licensed at one time in a business or profession is meaningless unless the effective period of the license is also known.
Finally, KRS 139.190(1) makes tax records confidential only "insofar as the information may have to do with the affairs of the person's business." We believe that the date of application and the dates of the effectiveness of a license are not such information which reveals the affairs of a person's business. In his opinion Judge Barker indicates the kind of information which would be barred from disclosure by KRS 139.190.
"It is noted by the Court that the business form of the net profits license fee return requires such information as 'total gross receipts per federal return, form blank', 'total business deductions per federal return', 'net business income per federal return', 'state or local taxes based on income', 'net operating loss deduction', 'partner salaries', 'interest' and 'dividends'."
In order for the Division of Tax Collection to make available to the public the information as to the effective dates of business or occupational licenses it will be necessary for the Division either to allow inspection of its records after confidential matter has been deleted or to provide the requested information in lieu of allowing personal inspection by a member of the public. Whether either of these procedures would be placing an unreasonable burden on the custodian of the records under KRS 61.872(5), we are not able to say with the information we now have. The answer to that question would depend upon the scope of the request. Certainly, it would not be unreasonable if the request was confined to one or a few named persons or businesses.
As directed by statute we are sending a copy of this opinion to the requester.