Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Revenue Cabinet properly relied on KRS 61.878 (1)(l), which incorporates the confidentiality provision found at KRS 131.190 into the Open Records Act, in denying Michael Sullivan's March 19, 1998, request to inspect "the tax maps used to identify the mineral owners for our project. . . ." Mr. Sullivan's firm, American Consulting Engineers, PLC, has contracted with the Transportation Cabinet for the design of KY 114, and this contract includes submission of solid mineral plans. He argues that since information pertaining to solid mineral ownership is available from the Cabinet, "it would appear to be a great monetary savings to the Commonwealth to share the information rather than pay someone to gather the same information twice."
On behalf of the Revenue Cabinet, Stewart Douglas Hendrix responded to Mr. Sullivan's request on March 24, 1998. Although he advanced various arguments in support of the Cabinet's denial, Mr. Hendrix relied chietly on KRS 131.190, observing:
The Cabinet requests all mineral rights owners to provide the information you requested in order to assess those owners' unmined minerals in accordance with KRS 132.820 (Supp. 1996). Your request clearly seeks records or information prohibited from disclosure by the foregoing provisions.
Mr. Hendrix acknowledged that although Mr. Sullivan's company "has a connection with the Commonwealth many others making similar requests do not have, there is nothing in the relevant studies that would authorize an exception to the usual statutory provisions that prevent compliance with [his] request." We find that KRS 131.190 operates as an absolute prohibition on disclosure of the records requested, and therefore do not address the applicability of the other exceptions cited to the records withheld.
KRS 61.878(1)(l)authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 131.190(1) to preclude a present or former secretary or employee of the Revenue Cabinet, or employee in the Finance and Administration Cabinet's Office of Financial Management and Economic Analysis, member of a county board of assessment appeals, property valuation administrator or employee thereof, or any other person, from divulging:
any information regarding the tax schedules, returns or reports required to be filed with the cabinet 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.
KRS 132.820(2) requires the owner or lessee of property assessed for unmined coal, oil, and gas reserves and any other mineral or energy resources held separately from surface real property to file a return with the Cabinet. In a follow-up letter to this office dated April 6, 1998, Mr. Hendrix explained that these returns, and the accompanying maps, contain the names of owners, boundaries, locations of seams, and amounts of coal severed and remaining on the property as a reserve. The property tax return form itself specifically states that "all information contained in the return and all accompanying documentation (including maps) is strictly confidential" under the cited provision. It is clear that the confidentiality provision found in KRS 131.190(1)extends to the records which Mr. Sullivan requested.
It is equally clear that neither Mr. Sullivan nor his firm enjoy a greater right of access to these records by virtue of the fact that they have contracted with the Transportation Cabinet for the design of a road project. While compelling arguments can be made in support of governmental efficiency and economy, KRS 131.190 does not create an exception for private firms operating under a state contract. Indeed, as Mr. Hendrix notes, with the exception of providing information to the Internal Revenue Service, any person violating KRS 131.190 by divulging information contained in tax records or reports may be fined a maximum of $ 500 and imprisoned for a maximum of six months. As this office noted in OAG 83-78:
That specific statute dealing with the subject [of the confidentiality of tax records and reports] prevails over any provision of the Kentucky Open Records Law. . . . The Department of Revenue [now Revenue Cabinet] is not only allowed a policy of keeping such records confidential but is mandated by a statute with penal provisions to keep such records confidential. [Citations omitted.]
OAG 83-78, p. 2.
As a rule of general application, this office will defer to the public agency in its interpretation of confidentiality provisions which are binding upon it. See, e.g., 94-ORD-76 (deferring to Cabinet for Human Resources in its interpretation of KRS 620.050(4); 97-ORD-33 (deferring to Corrections Cabinet in its interpretation of KRS 197.025). It is the Revenue Cabinet's position that the records which Mr. Sullivan seeks are excluded from public inspection by KRS 131.190(1). In the absence of any legal authority which is contrary to this position, we affirm the Cabinet's denial of Mr. Sullivan's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.