Request By:
Mr. Edward D. Hays
Legal Counsel for City of Danville
114 South Fourth Street
Danville, Kentucky 40422
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to whether an ordinance of the City of Danville making certain records confidential is in conflict with the Kentucky Open Records Law, KRS 61.870-61.884. You state the following facts: The City of Danville imposes an annual license fee for the privilege of engaging in business; at the beginning of each year it is necessary for the licensee to pay a minimum fee of $25.00 in advance which will be credited to the occupational tax which the licensee is required to pay during the year. [City Ordinance 25.070(9)]; City ordinance 25.170 provides, in part, as follows:
"Any information gained by the Treasurer, Director of Finance, or any other official or agent or employee of the City as a result of any returns, investigations, hearings or verifications required or authorized by this Ordinance shall be confidential, except in accordance with proper judicial order, and any person or agent divulging such information shall, upon conviction, be subject to a fine of not less than $250.00 nor more than $500.00 or imprisonment not to exceed 60 days, or both, at the discretion of the Court, and shall be dismissed from employment by the City upon conviction. . . ."
Your question to us is whether the confidentiality provision of Ordinance 25.170 contravenes the Kentucky Open Records Law. It is our opinion that it does.
In enacting the Open Records Law, KRS 61.870-61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided in KRS 61.878.
One of the exceptions to the requirement of mandatory public inspection is KRS 61.878(1)(j), "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Certain tax records are made confidential by KRS 131.190 which reads, in part, as follows:
"(1) No present or former commissioner or employee of the Department of Revenue, member of a county board of supervisors, property valuation administrator or employee thereof, or any other person, shall divulge any information acquired by him of the affairs of any person, or information regarding the tax schedules, returns or reports required to be filed with the Department or other proper officer, or any information produced by hearing or investigation, insofar as the information may have to do with the affairs of the person's business. . . ."
This statute makes confidential tax records of a city which reveals details of the business of taxpayers. For example, in OAG 77-586, we held that detailed reports by hotels and motels of their occupancy and gross revenues which were filed with the Department of Finance of the Lexington-Fayette Urban County Urban County Government were made confidential by this statute since they had to do with the operation of a private business. However, in OAG 81-286, we held that the total amount of city payroll tax received by the city from a private hospital was open to inspection despite a city ordinance purporting to make tax records confidential, since such information was not revealing the details of private business.
In the case you present, raising the issue of information as to who has paid the minimum license fee required of all persons and entities in business in the city each year, the information sought tells nothing of the details of private business, only whether a person or entity is licensed to do business in the city. Whether such information is made confidential by Ordinance No. 25.170 is not ours to decide, but, if the ordinance is so interpreted, we believe it is in conflict with the Open Records Law. One of the purposes of the Open Records Law is to allow any member of the public to personally check on the operation of the government by inspecting the original records of public agencies or by purchasing copies thereof. Whether taxes are being paid by all persons who are legally obligated to pay them is a legitimate interest of the public and any person has a right to check on that matter. The public's right of inspection is limited, however, in that it cannot have access to the details of the taxpayer's business which the taxpayer has revealed to the taxing authorities as required by law or which have been uncovered by investigation. Since every licensee in the City of Danville must pay the $25 minimum license fee, the public disclosure of who has paid the fee reveals no private detail concerning a taxpayer's business. The information should be made available to the public under the provisions of the Open Records Law.