Request By:
Mr. E. H. Flint
President
Horsemen's Benevolent and
Protective Association, Inc.
700 Dudley Pike
Edgewood, Kentucky 41017
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
As President of the Kentucky Division of the Horsemen's Benevolent and Protective Association, Inc. (HBPA) you have written this office concerning a recent change in policy by the Kentucky State Racing Commission (KSRC) pertaining to the release of information under the Kentucky Open Records law. Specifically you indicate that the HBPA is an organization of owners and trainers of Thoroughbred race horses that compete and are licensed in the Commonwealth by KSRC. As a charitable corporation, HBPA dispenses in excess of $300,000.00 annually in financial benevolence to its members. Membership list compilation and benevolence verification have been made from social security numbers provided by KSRC. You indicate that social security numbers are used only to identify HBPA members as Kentucky licensees, and thereby enable HBPA to operate its benevolence program.
As of February 1, 1984, KSRC has refused to provide social security numbers to HBPA on the basis of OAG 84-51. This office held in OAG 84-51 that social security numbers are not public records available for public inspection, as they are exempted by KRS 61.878(1)(a) which exempts "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
The exemptions from public inspection outlined in KRS 61.878 are permissive and not mandatory. OAG 79-275. Therefore, under the Open Records law, KSRC has the discretion of whether to release the social security numbers of its licensees. Due to the custom established by KSRC before the issuance of OAG 84-51 wherein KSRC supplied HBPA with the social security numbers of its Kentucky licensees, it is our opinion that KSRC should continue to supply HBPA with the licensee social security numbers in order that HBPA may continue its benevolence dispensation. This opinion therefore modifies OAG 84-51, for although it is still our position that social security numbers are exempt from public inspection under KRS 61.878(1)(a), the permissive nature of the KRS 61.878(1) exemptions allows release of this information due to the reasons stated above.
You also indicate that you are a board member of the Kentucky Racing Health and Welfare Fund, Inc. (KRHWF), established in 1978 by the Kentucky General Assembly under KRS 230.374. KRS 61.878(4) provides that the KRS 61.878 exemptions are not to prohibit the exchange or sharing of public records between public agencies when the exchange serves a legitimate governmental need or is necessary in the performance of a legitimate government function. As a public agency, KSRC must release social security numbers to other state agencies if that information is needed for a government purpose or function. KRHWF is a public agency for the purpose of the Open Records law as defined by KRS 61.870(1). Therefore, KSRC must release the social security numbers of its licensees under KRS 61.878(4).
Therefore, due to the permissive nature of the KRS 61.878(1) exemptions, as well as the custom of release of licensee social security numbers by KSRC to HBPA which has gone uncontested until recently, it is our opinion that KSRC should continue to release the social security numbers of its licensees to HBPA. Additionally, KSRC must release the social security numbers to KRHWF due to KRS 61.878(4) which provides for the exchange of public records between public agencies for a legitimate government function.