Request By:
Gary N. Brown, Esq.
Legal Services Section
Revenue Cabinet
Capital Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Susan Alley, Esq. on behalf of her law firm and its client, the Kentucky Coal Journal, has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request to inspect, abstract and copy the names and addresses of all coal companies which paid coal severance taxes to the state of Kentucky in 1985.
In your letter of December 18, 1985, addressed to William D. Kirkland, Esqu. who is a member of the same law firm as Ms. Alley, you stated that the Revenue Cabinet's denial was based upon the provisions of KRS 61.878(1) (j) and KRS 131.190. You maintain that the records requested are confidential.
In her letter of appeal to this office Ms. Alley alleges that while KRS 131.190 prohibits the release of information pertaining to the business affairs of a taxpayer, the mere release of the names and addresses of all coal companies who have paid coal severance taxes in 1985 would reveal nothing about the business affairs of the individual companies. In a telephone conversation with the undersigned Assistant Attorney General, on February 20, 1986, you stated that the release of the names and addresses of the coal companies who paid coal severance taxes in 1985 would divulge information relative to the affairs of a coal company's business as it would reveal which companies paid the severance tax and those companies who did not pay the tax.
OPINION OF THE ATTORNEY GENERAL
Among the public records excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) and subject to inspection only upon the order of a court of competent jurisdiction are those mentioned in 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."
The General Assembly has enacted KRS 131.190, subsection (1) of which provides in part as follows:
"No present or former secretary or employe of the Revenue Cabinet, member of a county board of assessment appeals, property valuation administrator or employe 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 a hearing or investigation, insofar as the information may have to do with the affairs of the person's business . . ." (Emphasis supplied).
The question presented by this appeal then is whether the records requested of the Revenue Cabinet, the names and addresses of coal companies which paid severance taxes to this state in 1985, is information having to do with the affairs of the coal companies business and thus privileged information under KRS 131.190 and KRS 61.878(1) (j).
This office in connection with the handling of appeals of denials of requests to inspect public records under the Open Records Law has consistently recognized that much but not all of the material generated in the administration of tax statutes and ordinances is privileged and not subject to public inspection. While we apparently have not previously dealt with material generated by the coal severance tax laws, we have in several previous opinions dealt with records and information gathered under provisions imposing occupational license fees and taxes.
In OAG 85-1, copy enclosed, at page four, we concluded in part that a person should be permitted to inspect records pertaining to occupational license fees to obtain the principal business location, address and telephone number of each person or entity filing questionnaires with the Sinking Fund. In OAG 81-309, copy enclosed, we said in part that a person may inspect the records of a city containing information as to persons or businesses who are delinquent in paying their occupational taxes. Those specific records are not among the tax records protected from public inspection and that kind of information is not information having to do with the affairs of a person's business. Finally in OAG 82-2, copy enclosed, at page four, we noted that while KRS 131.190 makes tax records confidential insofar as the information may have to do with the affairs of a person's business, such information as the date of application and the dates of the effectiveness of a license is not that kind of information which reveals the affairs of a person's business.
One of the purposes of the Open Records Law is to allow any person to check on the operation of the government by inspecting the records of its various cabinets, departments and agencies. Whether taxes are being paid by persons and companies legally obligated to pay them is a legitimate interest and any person has a right to check on that matter. The only information revealed here concerns the names and addresses of coal companies who paid a legally imposed tax in a particular year. No information pertaining to the affairs of the business of any particular coal company will be revealed such as the amount of taxes paid or the amount of coal extracted.
We do not know whether the records involved here are computerized or how easily obtainable such records might be. In any event, KRS 61.878(3) requires a public agency to separate exempted material from nonexempted material and to make the nonexempted material available for public inspection. It may be easier for the public agency to compile the list of coal companies and their addresses than to allow the public to examine the records in compiling their own lists. An advantage to the public agency would be that if the agency compiled the list, the agency could sell the list and include the cost of staff required to prepare the list since no list is apparently available at this time. See OAG 84-93, copy enclosed at page three.
In conclusion, it is the opinion of the Attorney General that the public agency's denial of the request to inspect its public records was in error to the extent that the material to be obtained consists of a list of the names and addresses of coal companies which paid coal severance taxes to the state of Kentucky in 1985. This specific information is not information relative to the business affairs of the coal companies and thus is not exempt from public inspection pursuant to KRS 61.878(1) (j) and KRS 131.190. The public agency may either separate the exempt material from the nonexempt material and permit the requesting party to inspect the records and compile his or her own list or it may prepare the list for the requesting party and charge for its preparation since there is apparently no such list in existence at this time.
As required by statute a copy of this opinion is being sent to the appealing party, Susan Alley, Esq. If you decide not to comply with this opinion and decision, you may initiate further proceedings in circuit court pursuant to KRS 61.880(5) .