Request By:
Mr. Reo Johns
Pike County Property Valuation Administrator
Pike County Courthouse
Pikeville, Kentucky 41501
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
The Courier-Journal and Louisville Times Co., through its counsel, Kimberly Greene, has, by letter of January 3, 1989, appealed your apparent verbal denial of inspection, except for the tax rolls, of certain records Courier-Journal Reporter Rich Whitt asked to inspect in mid-December, 1988, and your December 22, 1988 written denial of his December 20, 1988 written request to inspect certain records held by your office. A copy of Mr. Whitt's letter of request, and your letter of denial, are attached to this opinion and incorporated herein by reference.
In summary, it appears Mr. Whitt sought "all records and supporting documents" pertaining to the assessment of Pike County property of several individuals and several firms, for periods either from 1980 to the present, or from January 1, 1984 to the present.
From Mr. Whitt's December 20, 1988 letter to you, it appears you advised him verbally that records in your office - other than the tax rolls - were not public documents and were not open for inspection. It further appears that following Mr. Whitt's December 20, 1988 request to inspect certain records, you responded in writing (December 22, 1988) stating, in part:
Dear Mr. Whitt:
In response to your letter of December 20, 1988 please be advised that your requests are denied pursuant to KRS 61.870, KRS 61.872 and KRS 61.878.
If you need any additional information please contact me.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) states in part:
An agency response denying, in whole or in part, inspection of any record 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.
From a reading of your letter of December 22, 1988, it appears you did not comply with the requirements of KRS 61.880(1), and thus violated that provision of the Open Records Act.
Your letter of December 22, 1988 did not cite, as required by KRS 61.880(1), the "specific exceptions of the Open Records Act authorizing withholding of the records" sought, and did not give a "brief explanation of how the exception applies to the record withheld. " Mere citation to certain basic statutory sections of the Open Records Act does not comply with the requirements of KRS 61.880(1).
Additionally, a review of records in the Attorney General's Office does not locate a copy of the December 22, denial you issued to Mr. Whitt, that you forwarded to this office. KRS 61.880(2) requires that a copy of the written response denying inspection of a public record be forwarded immediately to this office. If you did not do so, it appears that in this respect as well, you violated the Open Records Act.
A broader question is whether you denied inspection of records that should have been made available.
If you denied inspection of a tax roll that had been certified within the meaning of KRS 133.047, for 1988, or any of the four years prior to 1988, you may have violated KRS 61.872(1) and (2).
KRS 133.047 provides:
(1) Notwithstanding the provisions of KRS 61.870 through 61.884, when the Department of Revenue has completed action on the assessment of property in any county and has certified the assessment to the county clerk of that county, as provided for in KRS 133.180, the property tax roll or a copy of the tax roll, shall be retained in the office of the property valuation administrator for maintenance as an open public record for five (5) years. Such property tax roll shall be available for public inspection during the regular working hours of the office of the property valuation administrator as provided for in KRS 132.410(2)
(2) Any person inspecting a property tax roll shall do so in a manner not unduly interfering with the proper operation of the custodian's office and said person shall not use information obtained from the property tax roll (s) for commercial or business purposes unrelated to property valuation and assessment.
It is clear from KRS 133.047 that in accordance with the terms of that section, a certified tax roll is to be maintained as an open public record available for public inspection for five years, irrespective of any exception or provision of KRS 61.870 - 61.884 that might otherwise preclude public inspection except by court order. On the other hand, it is not clear from the items submitted for review, whether you denied a request by Mr. Whitt to inspect a "tax roll" in accordance with KRS 133.047.
To the extent Mr. Whitt sought to inspect "all records and supporting documents" regarding assessment of certain property, his request appears to seek access to items that would be subject to inspection only upon order of a court of competent jurisdiction. KRS 61.878. His request, given the breadth of its terms ("all records and supporting documents"), would require disclosure of records that presumably contain detailed information about personal holdings of individuals (e.g., tangible and intangible tax returns containing information about personal holdings such as stock, personal accounts, personal effects, etc.). The tangible and intangible tax return are within the sweep of Mr. Whitt's request. These returns are recognized as confidential pursuant to KRS 131.190. Their disclosure probably would also be deemed an unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). Other preliminary work papers, notes, etc., of the Property Valuation Administrator, are excluded from inspection pursuant to KRS 61.878(1) (g) and (h).
You failed to act consistent with the provisions of KRS 61.870 to 61.884. First, you failed to provide a statement of the specific exception authorizing withholding of a record together with a brief explanation of how the exception applied to the records you withheld. KRS 61.880(1). Second, you apparently failed to immediately forward a copy of your written denial to the Attorney General's Office as required by KRS 61.880(2).
If you denied access to a tax roll within the meaning of KRS 133.047, you may have failed to act consistent with KRS KRS 61.870 to 61.884, by denying access to records made open to inspection by specific enactment (KRS 133.047).
The complete "tax roll, " within the meaning of KRS 133.047, is open for public inspection. The "tax roll" is an identifiable document (albeit sometimes a number of volumes). That entire document, in full text, to include all columns of each page thereof, and any information shown thereon, is open for public inspection. KRS 133.047. If Mr. Whitt has not already been provided access to such documents, that access must be provided. KRS 133.047, KRS 61.872(1) and (2).
To the extent you denied access to your work papers or notes, and tangible and intangible tax returns, etc., you acted consistent with the provisions of KRS 61.870 to 61.884. Inspection of these documents may be denied. OAG 78-549; OAG 87-55.
As required by statute, a copy of this opinion is being sent to the appealing party, Ms. Kimberly K. Greene, on behalf of the Courier-Journal and Louisville Times Co. Either you or Ms. Greene may have rights pursuant to KRS 61.880, to appeal regarding this opinion, to the Pike Circuit Court.