Request By:
Ms. Olene Follis
Property Valuation Administrator
Barren County Court House
Glasgow, Kentucky 42141
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of April 18, 1989, James L. Thomerson, an attorney representing the Lexington Herald-Leader Company, has appealed your denial of access to certain records and refusal to furnish a copy of a building permit, as had been requested by Herald-Leader staff writer Kit Wagar.
FINDINGS IN BRIEF
You failed to act consistent with the provisions of KRS 61.870 to 61.884 in failing to respond in writing to a verbal request for access to records, and in responding to a written request by forwarding it to another agency. With certain limitations, access to the records requested must be permitted.
FACTUAL BACKGROUND
Based upon Kit Wagar's letter to you dated April 11, 1989, and your April 13, 1989, response to that letter, both provided to this office by Herald-Leader counsel Jim Thomerson, the following facts appear:
On April 6, 1989, Mr. Wagar verbally requested access to certain categories of records held by your office. You verbally denied his request, stating, inter alia, that while you often allowed people access to records maintained in your office, you would not allow Mr. Wagar access because you didn't know why he wanted to see them. You also indicated that county tax rolls were open to public inspection only two weeks a year. Additionally, while you allowed Mr. Wagar to inspect one building permit, you declined to furnish a copy of it to him.
By letter of April 11, 1989, Mr. Wagar sought access to eight categories or types of records possibly held by your office. You responded to his written request by letter of April 13, 1989, to the Herald-Leader Co., to Mr. Wagar's attention. Your letter indicated his April 11, 1989 request had been forwarded to the Commissioner of the Department of Property Taxation in Frankfort, who, you indicated, could properly and promptly handle the matter.
Mr. Wagar's April 11, 1989 letter to you, and your April 13, 1989 response to it, are attached hereto and incorporated herein in by reference.
OPINION OF THE ATTORNEY GENERAL
First, KRS 61.880(1) establishes the general procedure to be followed by a public official upon receipt of a request to inspect public records. Such provision is applicable to your actions as Property Valuation Administrator (hereinafter "PVA") upon a request to inspect records held by your office. KRS 61.880 provides, in part, that:
(1) Each public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(2) A copy of the written response denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General of the Commonwealth of Kentucky.
KRS 61.880(5) provides in part for the Attorney General to, upon request, review a denial of a request to inspect public records, and issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
It appears you made no written response to Mr. Wagar's April 6, 1989 verbal request to inspect public records. In so failing, you did not act consistent with provisions of KRS 61.870 to 61.884. Specifically, KRS 61.880(1), supra, requires a written response to a request to inspect public records.
Upon Mr. Wagar's written request dated April 11, 1989, you responded in writing, but not by way of a determination of whether to allow access, as called for by KRS 61.880(1). Instead, you referred his request to another agency. This action also was not "consistent with provisions of KRS 61.870 to 61.884."
It should be noted that if an agency (e.g., the PVA) does issue a written denial of inspection of public records, the agency is required by KRS 61.880(2), to forward a copy of its denial to the Attorney General.
Mr. Wagar's April 11, 1989 letter to you states you indicated that the tax rolls were open to public inspection "only two weeks a year." While KRS 133.045 provides for a two week inspection period in relation to possible appeals of assessments, that provision does not overwhelm KRS 133.047. That statute provides, in part, that the tax roll, or a copy thereof, shall be retained in the property valuation administrator's office "as an open public record for five (5) years." There is no "two week" limitation upon inspection of the tax rolls except as related to inspection incident to possible appeal of an assessment in accordance with KRS 133.045.
According to Mr. Wagar's April 11 letter, you allowed him to inspect a building permit, but refused to supply a copy of it. Refusal to supply a copy of a record, after inspection has been permitted, is an action inconsistent with KRS 61.874. If, after you permitted inspection of the building permit, you refused to provide a copy of it in accordance with KRS 61.874, then in this respect as well, you failed to act "consistent with provisions of KRS 61.870 to 61.884."
On a broader plain, Mr. Wagar requested, and was effectively denied, access to "all" of eight types or categories of records held (or that may be held) by your office - (1) current tax rolls; (2) building permits or applications; (3) assessment record cards; (4) property record cards; (5) lists of autos registered or taxed in Barren County since January 1, 1988; (6) lists of aircraft registered or taxed in Barren County since January 1, 1988; (7) PVA copies of boat registration forms since January 1, 1988; and (8) assessment records, including tax rolls, for aircraft, boats, and vehicles registered or taxed in Barren County.
In general, subject to limitations discussed below, inspection of the types of records sought by Mr. Wagar must be permitted.
Regarding the first two categories of records, "all current tax rolls, " and "all building permits or building permit applications," we are not aware of any provision of the statutes under which inspection of these records may be withheld. You should promptly allow inspection of these records.
Regarding the ban imposed by KRS 133.047(2) on use of information obtained from the tax rolls "for commercial or business purposes unrelated to property valuation and assessment," if a PVA has reason to believe information from the tax rolls is to be used in contravention of that provision, the PVA should deny inspection in writing in accordance with KRS 61.880(1) and (2). The written denial should cite as the basis of denial KRS 61.878(1)(j), and give the brief explanation that the request appears to involve use of information for commercial or business purposes unrelated to property valuation and assessment as prohibited by KRS 133.047(2). We note that use of information by a newspaper to inform the public of matters pertaining to property valuation and assessment, is, in our view, not a "use for commercial or business purposes unrelated to property valuation and assessment" within the meaning of KRS 133.047(2).
Regarding the second and third categories of records, "all assessment record cards, " and "all property record cards, " access to these records, under the terms noted herein, should be promptly provided. We specifically reverse, to the extent it is inconsistent with this Opinion, Opinion of the Attorney General (OAG) 87-55.
In OAG 87-55, we concluded that denial of inspection of commercial and industrial property record cards was supported by KRS 61.878(1)(g)(h) and KRS 133.045 "as such document is a preliminary working paper pertaining to the tax rolls. . . ."
Upon examination of both "property record cards" (sometimes called mapping cards) , and assessment record cards, at least in the form issued by the Revenue Cabinet (some localities may use their own forms), these cards are not "preliminary drafts" or "notes" within the meaning of KRS 61.878(1)(g). They are cards containing recordation of factual information concerning ownership, description, and assessment of property through time. The forms in question, as "record cards" for factual data or findings, are simply not "preliminary drafts," "notes," or "preliminary recommendations." Accordingly they may not be exempted from inspection under KRS 61.878(1)(g) or (h). The cards may contain "notes," as blocks are provided for this purpose on them. The "note" areas of the cards may, but are not required to be, masked or covered when inspection is allowed.
"Earlier" editions of property record cards and assessment record cards (e.g. 62A375-S9 (7/82) and 62A375-S12 (9/82)) may have areas for recordation of information about property that is not of general public recordation or observation (e.g., information concerning merchant's inventories and manufacturers' finished goods; business furniture and fixtures; drilling mining and construction equipment; manufacturing machinery held for use; manufacturing inventories of raw materials and goods in process; intangible personal property; unmanufactured agricultural products; and bank shares). Such information falls within the category of information about the "affairs of any person or the affairs of their business." Release of such information is banned by KRS 131.190(1). Accordingly, assessment record cards that contain such information, must have the portions of the cards containing such information masked before inspection is permitted.
Later editions of the assessment record cards (e.g. Revenue forms 62A375-S20 and S21 (3/89) and 62A375-S19 and S22 (4-89)), are sometimes termed "eight year cards. " Information of the type indicated above as having to do with the "affairs of a person or their business" does not appear on the later edition cards. The cards contain factual information about real property that is either publicly recorded in records recognized as being subject to routine public scrutiny, or that may be relatively readily observed from a public place. Information regarding ownership and taxation of motor vehicles, aircraft, and watercraft, contained upon the forms in question, is subject to recognized public scrutiny. Vehicles are used in the public ways and are subject to public scrutiny. Such information does not fall within the category of information about the "affairs of any person or a person's business" within the meaning of KRS 131.190(1). Accordingly, the entire card, except for "notes" contained thereon, is subject to inspection.
Of further note regarding the property and assessment record cards, although they are styled as returns, the cards, normally prepared by the PVA, and at most only acknowledged by signature of a taxpayer, are not by virtue of this "style" constituted "tax returns" within the meaning of KRS 131.190(1). For the ban on release of information regarding returns or schedules to apply, an instrument must in fact be a return or schedule. A record card principally prepared by a PVA is simply not a "return" within the meaning of KRS 131.190. We note below, that returns or schedules may accompany property or assessment record cards in PVA files. PVA's should take appropriate action to protect confidentiality of such returns or schedules.
With regard to the fifth, sixth, and seventh categories of records to which access is sought (all lists of autos and all lists of aircraft registered or taxed in Barren County since January 1, 1988, and, all PVA copies of boat registrations since January 1, 1988), we are not aware of any statute banning inspection of such records. Accordingly, if you have such listings, you must allow inspection of them. If you do not have such lists, you should so state in an appropriate response consistent with KRS 61.870 to 61.884.
Regarding the eighth category of records to which access is sought (all assessment records, including tax rolls, of aircraft, boats, and vehicles registered or taxed in Barren County), unless a specific exception in KRS 61.878(1) applies to a specific record among those within the scope of this request, inspection of these should be permitted. Records regarding ownership and taxation of vehicles (trucks, cars, motorcycles, aircraft, boats, etc., are recognized as matters of public recordation, and are thus subject to public scrutiny.
Because of the nature of the records held by your office (many of which involve current, active public tax accounts), the relatively limited staffing of PVA offices, and the duty of the PVA to properly maintain PVA files, the PVA should not turn over the files for wholesale rummaging. The records must be protected against removal, alteration, and misfiling. Additionally, in some instances actual returns, schedules, and notes, are filed together with a given card. The PVA must segregate or mask information that is not subject to disclosure. Accordingly, the PVA may reasonably require specification of particular cards to be examined, and may extract them and provide them for inspection. Although one may be entitled in literal terms to inspect "all" of a given category of records, the character of records held by a PVA, in view of applicable statutory provisions, does not permit, and the PVA may not allow, a person making such a request to conduct their own search among the files.
Both you and Mr. Wagar, or the Herald-Leader, may have rights pursuant to KRS 61.880(5), to appeal the findings of this opinion. As required by statute, a copy of this opinion is being sent to Mr. James L. Thomerson, who appealed your denial of inspection on behalf of the Lexington Herald-Leader Company.