Request By:
Mr. Franklin Hampton Moore, Jr.
Cole, Harned and Broderick
Attorneys at Law
921 College Street-Phoenix Place
P.O. Box 1869
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Assistant Attorney General
By letter to the attorney general dated November 17, 1982 you requested reconsideration of OAG 82-539 in which we held that the Department for Human Resources properly denied your request for information concerning individuals against whom the Commonwealth of Kentucky has received a subrogated claim for recovery of support payments paid in connection with the Aid to Families with Dependent Children Program. In your letter requesting reconsideration you state the following:
"It is my client's belief that he provides a needed service to the people of this Commonwealth and that the denial of this information not only prevents him from providing that service at the cheapest cost to the consumers, but protects individuals who have not only been derelicting their parental responsibilities but also their responsibility as citizens of this Commonwealth."
First, we would point out that in our review of open records requests under the provisions of KRS 61.880 we invariably consider the issue without regard to the purpose for which a requester seeks to inspect a record because under the open records law, KRS 61.870 - 61.884, a requester does not have to state any special standing or interest or any special purpose for inspecting the record. The record is either to be open for inspection by any person in the general public or may be withheld from inspection by every person of the public under one of the exceptions provided in KRS 61.878(1) except upon an order of a court of competent jurisdiction. However, before preparing our opinion, OAG 82-539, we had phone conversations with you and with Mr. David E. Cathers, staff attorney for DHR, which revealed the purpose for your request on behalf of your client, Arthur Eugene Deaton.
We understand that Mr. Deaton is in the business of purchasing at a discount federal income tax refunds expected to be received by the taxpayers; that when the time comes for the refund to be received it is revealed that certain taxpayers have had a lien placed against their refund because of their failure to make child support payments under the Child Support Recovery Act, KRS 205.710 - 205.800; that such a lien prevents your client from receiving the benefit of the tax refund he has purchased from the defaulting parent: that if your client could receive in advance a list of all taxpayers who have defaulted on their child support obligations he could avoid purchasing the tax refund expected by such a parent.
No matter how salutory may be the purpose of inspecting public records, if the requested records are made confidential by a statute enacted by the general assembly a public agency cannot make the records public. The problem is one which would have to be corrected by the general assembly by an enactment changing the statutes. OAG 82-539 was based on our interpretation of a statute which we believe makes the requested records confidential We are, therefore, reconsidering our statutory interpretation made in that opinion.
You question whether KRS 205.175 states a legislative intent which would prevent your client from receiving the information he desires. We are inclined to agree with you as far as KRS 205.175 is concerned. Our opinion did not rely on that statute but on KRS 205.730 and 205.735. Those statutes pertain to the location of absent responsible parents of children whose families have received public assistance on behalf of needy dependent children. The Department for Human Resources shall serve as a registry for receipt of information which directly relates to the identity or location of absent parents. KRS 205.730(4) provides:
"The information which is obtained by the department shall only be available to such governmental agency or political subdivision of any state for purposes of locating an absent parent to enforce their obligation of support."
KRS 205.735 reads as follows:
"All business concerns doing business in this state, to the extent that they have employees working within this state, or maintain personnel files within this state, or are incorporated under the laws of this state, are required to provide the department with the following information upon certification by the secretary that the information is for the purpose of locating a parent and that the information obtained will be treated as confidential information by this department or the agency or department of any other state which administers the public assistance program for the other state: full name, social security account number, date of birth, home address, wages, and number of dependents listed for tax purposes." (emphasis ours)
You state in your letter -- "My client would be satisfied with a list of social security numbers pertaining to the individuals involved, even a list of complete birth dates and counties of residence for the individuals involved." It appears to us that this is a part of the very information which is made confidential by KRS 205.735. Under the open records law such records are excepted from the requirements for mandatory public disclosure by KRS 61.878(1)(j).
After reconsideration we believe that the conclusion reached in OAG 82-539 is correct.