Request By:
Harold Wayne Newton, Esq.
Hancock County Attorney
Administration Building, Third Floor
Hawesville, Kentucky 42348
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. John Troutman has appealed to the Attorney General pursuant to KRS 61.880 your refusal to respond to his request of July 30, 1987, and your apparent denial of his request of that date.
Mr. Troutman, a representative of the Kentucky State District Council of Carpenters, in a letter to the Hancock County Judge/Executive, Mr. Danny L. Boling, dated July 30, 1987, a copy of which was sent to you, requested that he be furnished with a list of the contractors employing people in Hancock County. He only wanted a list of the contractors and was not requesting information relative to amounts of money as set forth in the County's Occupational Tax Records. As of August 20, 1987, he had not received a reply from you, the county judge/executive or anyone else connected with county government.
In his letter of appeal to this office, dated August 14, 1987, Mr. Troutman said in part that his request concerned information as to the names of the contractors paying the one percent county occupational tax. He only wanted the names of the contractors paying the tax and was not requesting any information relative to amounts of money. He further stated that his organization's first written request on the subject was denied and the second request (his letter of July 30, 1987) was not answered.
In a letter to the Hancock County Judge/Executive, dated July 6, 1987, from Charles L. Berger, an Evansville, Indiana attorney, writing on behalf of the Kentucky State District Council of Carpenters, a request was made for the names of all construction companies in Hancock County who are required to pay the county occupational tax.
You replied on behalf of the county and the Hancock County Judge/Executive in a letter to Mr. Berger, dated July 17, 1987. You advised that the county has always treated such records as "completely and entirely confidential, and has consistently refused to disclose any portion of them to anyone." You concluded you letter with the following paragraph:
"If we are in error in following such a policy, we will change it. However, only a court of competent jurisdiction will be able to convince us that we are in error. If your clients pursue this and obtain a court ruling as to what portion of these records are not confidential, we will abide by such ruling. Until then, we prefer the clarity of our present policy."
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to the provisions of KRS 61.880(1) and (2), sections of the Kentucky Open Records Act which have been in effect since 1976.
These provisions require that a public agency, upon a request for records made under the Open Records Act, determine within three working days after the receipt of the request whether to comply with the request. The public agency is required to notify in writing the person making the request of its decision within the three day period. A response denying a request, in whole or in part, shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. A copy of the written response denying inspection of a public record shall be forwarded immediately by the public agency to the Attorney General.
You and the county in your handling of both Mr. Berger's letter and Mr. Troutman's letter have not followed the provisions of KRS 61.880(1) and (2) relative to requests made under the Open Records Act. We would expect the county to follow the provisions of the Open Records Act in the future as the Act clearly applies to county governments and fiscal courts [KRS 61.870(1)].
Normally when a public agency has refused to respond to a request under the Open Records Act, such as you have in connection with Mr. Troutman's letter, this office, when presented with the matter on an appeal, issues an opinion setting forth the statutory violation and directing the public agency to respond. Such an opinion in this situation would be a waste of time in view of your handling of Mr. Berger's letter of request. We are, therefore, treating your failure to respond to Mr. Troutman as a denial of his request and we will now deal with whether such a denial was proper under the terms and provisions of the Open Records Act (KRS 61.870 to KRS 61.884).
This office has on several occasions dealt with requests to inspect records and documents pertaining to occupational license fees and taxes. In OAG 84-93, copy enclosed, this office said that a person should be allowed to inspect a city's records of occupational licenses to obtain business names and addresses of city occupational license holders. The public is entitled to know what businesses and professions have been licensed to exist and operate within the boundaries of a governmental unit. Access to such information is not an unwarranted invasion of personal privacy under KRS 61.878(1)(a).
In OAG 82-2, copy enclosed, we concluded that the public has a right to know the names of the businesses licensed by a city and the dates of the applications and issuances of the licenses. This kind of information is not, in our opinion, information which reveals the affairs of a person's business and is not the type of information protected by KRS 131.190 (1). See also OAG 81-309, a copy of which is enclosed.
This office has recognized that there are limits as to what kind of and how much tax information can be made available for public inspection. In OAG 84-93, at page three, we said in part:
"The public is not entitled to know information about a license which is made confidential. OAG 82-2. Therefore records disclosed to the city in order to obtain an occupational license or collect a license fee such as social security numbers and federal identification numbers, would still be confidential and exempt from public access. Information which reveals the affairs of the business, such as profits, taxes, deductions and salaries would also be exempted."
Since a public agency is required by KRS 61.878(4) to separate the excepted material from the nonexcepted material, it may be more expedient for the county to compile a list of the names of the businesses requested rather than to allow the public or the requesting party to inspect the records and compile their own lists. Obviously if the requesting party inspects the actual records the county will have to delete or blot out the material which is not subject to public inspection.
In conclusion, it is the opinion of the Attorney General that the county improperly denied the request under the Open Records Act and the requesting party should be permitted to inspect county records relative to occupational license fees or taxes to obtain the names of the contractors or construction companies that are paying the county occupational tax. The county may compile the list containing such information or allow the requesting party to prepare his own list, with the excepted material separated from the nonexcepted material before he examines the records. See OAG 85-1, copy enclosed.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. John Troutman. If you or the fiscal court or county government decide not to comply with the findings and conclusions set forth in this opinion, further proceedings may be initiated in the appropriate circuit court pursuant to KRS 61.880(5).