Request By:
Mr. Reo Johns
Property Valuation Administrator
Pike County Courthouse
Pikeville, Kentucky 41501
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of July 18, 1989, James L. Thomerson, an attorney representing the Lexington Herald-Leader Company, has appealed your July 14, 1989 denial of Herald-Leader Staff Writer Kit Wagar's request to inspect property assessment and property record cards related to some 155 named individuals or businesses.
FINDINGS IN BRIEF
You acted consistent with the provisions of KRS 61.870 to 61.884 to the extent that you promptly responded in writing to a request to inspect certain records held by your office, cited specific statutory exceptions as a basis for denying inspection of property record and assessment cards, and, provided a brief explanation of how the exceptions applied to those records. You also acted consistent with KRS 61.870 to 61.884 in immediately forwarding a copy of your denial to this office. Blanket denial of inspection of the cards in question, however, may not be properly based upon KRS 61.878(1)(a) and (b). They must be made available for inspection following masking of confidential information contained thereon.
FACTUAL BACKGROUND
By letter of July 12, 1989, Herald-Leader Staff Writer Kit Wagar requested access to a variety of records possibly held by your office. Among them were, in substance, maps utilized in connection with property assessment, tax rolls, and building permits or permit applications. With regard to these records, you indicated inspection of the maps would be permitted, that the tax rolls were in the office of the county clerk, and that your office had no building permits or permit applications for the period sought by the request.
Mr. Wagar's request also sought access to "property assessment cards" and "property record cards, " from 1983 to the present, for some 155 named individuals or businesses.
You responded to Mr. Wagar's request regarding inspection of property assessment and property record cards by saying:
With regard to your request for property assessment cards from the [sic] 1983 to the present, I respectfully must deny you access to these records pursuant to KRS 61.878(1)(a)(b). While it may result that a court of competent jurisdiction orders the release of these records, I feel that the information on the records if released voluntarily by me, would violate the provisions of the statutes set out above.
As understood from the Herald-Leader's appeal of your denial, Mr. Wagar provided to your office, a copy of Opinion of the Attorney General (OAG) 89-40, at the time of tendering his request on July 12. That Opinion had ruled that cards of the type Mr. Wagar requested to inspect were subject to inspection without a court order.
By letter of July 19, 1989, the Herald-Leader appealed your partial denial of access to, and thus inspection of, property assessment and property record cards.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
You denied Mr. Wagar's request to inspect property assessment cards and property record cards held by your office citing KRS 61.878(1)(a)(b). Those provisions exclude from the application of KRS 61.870 to 61.884, and make subject to inspection only upon order of a court of competent jurisdiction:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
(b) Records confidentially disclosed to an agency and compiled and maintained for scientific research, in conjunction with an application for a loan, the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential, or for the grant or review of a license to do business and if openly disclosed would permit an unfair advantage to competitors of the subject enterprise. This exemption shall not apply to records the disclosure or publication of which is directed by another statute.
It is not necessary to engage in an element-by-element analysis regarding KRS 61.878(1)(b) vis-a-vis property assessment and record cards. That provision simply does not provide a basis for exclusion of the cards in question. The cards are not "records confidentially disclosed to an agency," a condition precedent to applicability of KRS 61.878(1)(b). They are cards upon which Property Valuation Administrators and their deputies record factual information concerning location, ownership, description, and valuation of property. KRS 61.878(1)(b) is inapposite to denying inspection of the cards in question.
The only real question here is whether a blanket denial of inspection of the cards in question may be properly based upon KRS 61.878(1)(a). We believe it cannot. Inspection of the cards in question must be permitted, subject to the terms noted herein, and in OAG 89-40.
Two conditions must be met in order for inspection of public records to be properly denied pursuant to KRS 61.878(1)(a). First, the records involved must be of a "personal nature." Second, disclosure of the records, if they are of a personal nature, must constitute a "clearly unwarranted invasion of personal privacy. "
Even if the two conditions noted above are present, if a record contains some information that meets those conditions, and other information that does not, KRS 61.878(4) requires, regarding material not excepted from inspection under KRS 61.878, that:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted material and make the non-excepted material available for examination.
Incident to preparation of OAG 89-40, we carefully reviewed the types of cards here involved regarding the character of information contained or called for thereon. Information regarding the location of real property, its description, ownership history through time, and valuation history, as well as information concerning the description and valuation of tangible personal property such as vehicles, watercraft, and mobile homes, are the principal types of information recorded upon the cards in question. Such information, in being factual information about property, rather than a person, is not of a "personal nature." This is particularly so where the information (e.g., ownership, location, etc.,) regarding that property is, in general, subject to recognized public recordation and routine public perusal - for example, in a deed book. Much of the property description information contained upon the cards in question is typically readily observable such as from a public street (number of stories, type of construction, etc.). What might be termed the major elements of concern, upon, or called for by, the cards in question, are the same elements that appear on the standard tax roll forms published by the Revenue Cabinet. The Tax Rolls, pursuant to KRS 133.047(1), are an "open public record for five years." If information is subject to routine public scrutiny under one statute (e.g., KRS 133.047(1)), that same information, in general, cannot be properly termed confidential pursuant to KRS 61.878(1)(a).
Because information concerning ownership, location, description, and valuation of real property and vehicles is information regarding "property," rather than information regarding a person, and because information of such character is subject to recognized public recordation and routine public perusal, we find information of such character is not of a "personal nature" within the meaning of KRS 61.878(1)(a). Accordingly, information of such character contained upon the cards in question must be made available for inspection without a court order. Inspection of such information cannot be properly denied pursuant to KRS 61.878(1)(a).
Information regarding property, of course, can be of a recognized "personal nature." Information about an individual's stock holdings, or bank shares, for example, that may be contained upon some editions of the cards in question, though it regards property, is generally recognized by the public as not subject to routine public perusal. There is a recognized privacy interest associated with one's stock holdings. Records concerning such holdings are not publicly filed, for example, as is a deed, in a book recognized as being subject to routine public perusal. Further, such holdings, since their market value can be relatively readily ascertained, are presumably less amenable to subjectivity in valuation. There is, therefore, not the same cause for disclosure of information as is perhaps necessary to allow the public to verify equality of valuations in the subjective area of valuation of real property. Accordingly, disclosure of information concerning stock holdings, and intangibles, and other personal property not subject to public recordation, and their valuation (except the gross intangible assessment), may be deemed an unwarranted invasion of personal privacy. Inspection of such information must be denied pursuant to KRS 61.878(1)(a) unless disclosure is ordered by a court of competent jurisdiction.
KRS 131.190(1) must also be taken into account in relation to the records Mr. Wagar sought to inspect. In sum, that statute bans release by a property valuation administrator or employee thereof, of information regarding the affairs of any person or the affairs of their business. In our view, "affairs of any person" and "affairs of the person's business," as used in KRS 131.190(1), refers to matters associated with a person that are recognized as being private, and not subject to routine public perusal. Stock holdings and other intangibles, and business inventories, we believe, fall in the category of information regarding the "affairs of a person or their business." Such information, in accordance with KRS 131.190(1) and KRS 61.878(1)(j), may not be divulged by a property valuation administrator or employee thereof.
KRS 61.878(4) provides, regarding information not excepted from inspection pursuant to KRS 61.878, that:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted material and make the non-excepted material available for examination.
From this language, it is clear that a blanket denial of inspection of an entire record (e.g., a property assessment or record card) is not supported by KRS 61.878(1)(a), where the record contains some information that is not of a personal nature. Information properly excepted from inspection pursuant to KRS 61.878, or KRS 131.190, that is contained on the cards in question, must be separated from non-excepted information, as by masking. KRS 61.878(4), OAG 89-40.
You acted consistent with the provisions of KRS 61.870 to 61.884 to the extent you promptly responded in writing to a request to inspect public records, indicated inspection of some records would be permitted, and advised where others were located. You also acted consistent with KRS 61.870 to 61.874 to the extent you set forth in writing in your response, specific exceptions pursuant to KRS 61.878 as a basis for denying inspection of certain records, gave a brief explanation of how such exceptions applied to the records involved, and immediately forwarded a copy of your denial to this office. For the reasons indicated, however, the exceptions you cited do not support a blanket denial of inspection of the records in question.
You should promptly notify Mr. Wagar he is entitled to inspect the record cards in question subject to the conditions noted herein.
We realize that the breadth of Mr. Wagar's request (inspection of property and assessment record cards regarding some 155 individuals and businesses) presents you with a presumably formidable task in masking confidential information. The magnitude of the undertaking may, of course, be taken into account in arranging the inspection. See OAG 89-40.
Both you and Mr. Wagar (or the Herald-Leader Company) 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, Esq., who requested it on behalf of the Lexington Herald-Leader Company.