Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Ms. Pamela T. Robinette on behalf of her client, the Pikeville United Methodist Hospital, to the City of Pikeville on February 16, 1994. Those records are identified as:
Records which identify all "persons," as defined in the city ordinance titled "An Ordinance Imposing License Fees Upon All Persons Engaged in Any Trade, Occupation or Profession Within the City of Pikeville . . . .," [sic] adopted September 25, 1991, who filed Occupational Tax Returns in compliance with said ordinance reflecting a postmark of the 31st day of January, 1994, which were remarked by the post office reflecting a post mark of February 1, 1994 and were assessed a penalty. Additionally, any records documenting the amount of each penalty.
Ms. Robinette's request was made under the Kentucky Open Records Law.
In a letter dated February 18, 1994, Ms. Karen Harris, Pikeville City Clerk, denied Ms. Robinette's request. Ms. Harris explained:
The City of Pikeville's Ordinance, which provides for the Occupational License Fee, affords each taxpayer with the assurance that "All information obtained by the Administrator or any of his agents or employees, or any other official or employee of the City, from any reports, examination or audit of books, records, account, income tax returns or any other source, in the administration of this ordinance, shall be treated and considered as confidential and privileged except for official purposes, unless otherwise treated by judicial decree or specific provision of law, and shall not be open to inspection by the public."
In addition, Ms. Harris asserted that "KRS 61.878 allows for the exclusion from inspection those records which have been confidentially disclosed to an agency, generally recognized as confidential or proprietary, which have been submitted to the agency for the grant or review of a license to do business [sic]." She thus concluded that Ms. Robinette's request must be denied.
We are asked to determine if the City of Pikeville properly relied on City Ordinance 0-91-016 and KRS 61.878(1)(c)1.c. in denying Ms. Robinette's request. For the reasons set forth below, we conclude that the City improperly denied her request for the identities of delinquent taxpayers, but properly withheld her request for the amount of the penalties assessed against these taxpayers.
This Office has consistently recognized that occupational license records are open to public inspection to obtain the names and addresses of licensees. OAG 82-435; OAG 84-93; OAG 85-1; OAG 87-57; 92-ORD-1119. At p. 2, of OAG 84-93, we observed:
An occupational license is a temporary grant of special privilege by the local government. As such, it is our opinion that public access to the information contained in the license, such as business name and address, is not an unwarranted invasion of personal privacy.
Hence, the public is entitled to know what business and professions have been licensed to exist and operate within the boundaries of the governmental unit. We have also recognized that nothing in the Open Records Act prohibits the disclosure of the fact that a person is delinquent in paying his or her occupational tax. OAG 81-309. "Whether taxes are being paid by all persons who are legally obligated to pay them is a legitimate interest of the public and any person has a right to check on that matter." OAG 82-435, at p. 3.
Nevertheless, we have held that the public's right of inspection is not unlimited. The public cannot have access to information about a license which is made expressly confidential. KRS 131.190(1) prohibits the release of certain tax records, and provides:
No present or former secretary or employee of the revenue cabinet, member of a county board of assessment appeals, property valuation administrator or employee 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.
Records disclosed to the City to obtain an occupational license or collect a license fee, such as social security number and federal identification numbers, remain confidential, and are exempt from public inspection. OAG 82-2; OAG 84-93. Information which reveals the affairs of the business, such as profits, taxes, deductions, and salaries, are also exempt. To the extent that disclosure of the amount of tax paid or owing, or the penalty assessed reveals the private details of the taxpayer's business, it is not subject to disclosure. In a letter to this Office dated April 2, 1994, City Attorney Russell H. Davis, Jr. explained that under Pikeville's current occupational tax structure, the amount of a taxpayer's tax and net profits derived from his or her occupation can be determined through simple mathematical calculations. Therefore, the City of Pikeville may not reveal the amount of occupational taxes paid or owing or the penalty assessed since to do so reveals the affairs of the taxpayer's business.
It should be noted that this Office has repeatedly stated that a city cannot, by ordinance or any other device, regulate access to records in a manner which conflicts with the Open Records Law. In OAG 82-435, at page 2, we observed:
In enacting the Open Records Law, KRS 61.870-61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.
See also , OAG 82-518, at p. 1 ("The Mayor does not have the authority to countermand the requirements of the Open Records Law" ), 92-ORD-1136.
On its face, the Ordinance enacted by the City of Pikeville does not appear to conflict with the Open Records Law. In many respects, it follows the language of KRS 131.190(1). As interpreted and applied by the City Clerk, however, we believe the Ordinance runs counter to a long line of opinions of this Office interpreting the Open Records Law and the exceptions to it in this particular context. We therefore conclude that the City's reliance on Ordinance 0-91-016 and KRS 61.878(1)(c)1.c. was partially misplaced, and direct it to release the names of delinquent taxpayers. The City need not release the amount of the penalty assessed to each taxpayer.
The City of Pikeville and Ms. Robinette may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.