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 questions presented in this appeal are whether the City of Hopkinsville violated the Open Records Act by improperly denying Kentucky New Era staff writer E. L. Gold access to portions of its business license database, and whether the city otherwise subverted the intent of the Act by failing to afford Mr. Gold timely access to the remainder of the database. It is the opinion of this office that both of these questions must be answered affirmatively.
On March 20, 2000, Mr. Gold requested access to the "computer database records of current Hopkinsville business or privilege licenses. " 1 Acknowledging that the city "has designed that database to mingle public records with certain information, such as fees based on net profits, that could be considered confidential, " Mr. Gold identified 22 entries appearing on the business registration form that he "believed to be non-proprietary and public," and therefore subject to the mandatory disclosure requirements of the Open Records Act.
On March 23, 2000, Hopkinsville city clerk T. Mark Withers II responded to Mr. Gold's request, advising him:
At this time our work schedule precludes me from committing to a date certain for providing you with the requested information. We must first focus on the essential functions of city government. However, I will work on a timetable and communicate that to you at the first available opportunity.
Mr. Withers explained that "these type requests are labor intensive," diverting the city away from its "primary mission to provide services to the public," but reiterated that he would "work out a timetable with [city] staff as soon as possible and communicate that to [Mr. Gold]."
In a subsequent conversation with Mr. Gold, Mr. Withers indicated that the city had been unable to honor his request in the succeeding weeks because its "first responsibility is to get the work done that is required by law." 2 On April 11, Mr. Gold was contacted by Mr. Withers's secretary and advised that he could pick up the single floppy disk containing the requested records, and a memorandum explaining that six entries he had requested were excluded because "the information isn't included in [thedatabase, " and five other entries were excluded "at the instruction of the City Attorney because applying businesses were told the City would hold the information in confidence. . . ." This appeal followed.
In his letter of appeal, Mr. Gold argues that the City of Hopkinsville unreasonably delayed access to its business license database, and that when at last the city disclosed the database, it improperly withheld five entries on the basis of a promise of confidentiality, and without reference to one or more of the statutory exemptions. We agree.
KRS 61.880 sets forth the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party within three working days of receipt of the request, notifying the party whether it will comply with his request. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the "provision [of] services to the public." (March 23, 2000, response from Mark Withers to E. L. Gold.)
In a seminal decision addressing these duties, the Attorney General observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline . . . The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
93-ORD-134, p. 3. In 93-ORD-134, the Attorney General concluded that the agency failed to provide timely access to the records identified in the request. We reach the same conclusion in the appeal before us.
At page 11 and 12 of 93-ORD-134, the Attorney General reasoned:
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request."
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. . . . KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. 3
In an early opinion, this Office recognized:
OAG 77-151, at p. 3. . . . We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
Although there was no lack of cooperation among the parties to this appeal, there was a failure, on the part of the City of Hopkinsville, to conform its conduct to the strict legal requirements of the Open Records Act.
Having given the city advance notice of his intent to request access to the business license database in the hope of expediting a response, Mr. Gold tendered his formal request on March 20. The city responded within three business days, but that response did not conform to the specific requirements set forth at KRS 61.872(5) or KRS 61.880(1). Although the city intimated that the request would be honored in time, its response did not contain a detailed explanation of the cause of the delay, nor did it state the earliest date on which the records would be available. As Mr. Gold correctly observes, an agency response that it cannot immediately comply with a request "because of the press of business [is] insufficient to meet the requirements of" the Open Records Act, and in particular, KRS 61.872(5) and KRS 61.880(1). 96-ORD-238, p. 3. The duty to respond to an open records request, and to afford the requester timely access to the records identified in his request, is, as we have noted, as much a public servant's legal duty as any other essential function.
On April 11, 2000, Mr. Gold was notified that the records he requested on March 20 were available. Thus, some 22 days elapsed between the date of his request and the date on which it was partially honored. Inasmuch as the requested records were of an identified, limited class, and could be readily accessed through an existing database, we find that a delay of this duration was not reasonable, and that the City of Hopkinsville failed to afford Mr. Gold timely access within the contemplation of the Open Records Act. We therefore conclude that the city subverted the intent of the Act short of denial of inspection. KRS 61.880(4).
We further find that the city improperly withheld five entries pertaining to each business licensed, and appearing in the database, on the basis of a promise of confidentiality, and without reference to one or more of the exceptions codified at KRS 61.878(1)(a) through (l). This office has consistently recognized that business license records are, in general, open to public inspection. OAG 78-809; OAG 82-435; OAG 84-93; OAG 85-1; OAG 87-57; 92-ORD-1119; 94-ORD-64. These opinions were premised on the notion that:
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.
OAG 84-93, p. 2. Stated alternatively:
The very purpose of a license is to regulate businesses and professions in the interest of the public. We believe that the public is entitled to know what businesses and professions have been licensed to exist and operate within a local government unit.
OAG 78-809, p. 2. 4 The City of Hopkinsville does not advance any statutory argument in support of its decision to partially deny Mr. Gold's request, but instead relies on a promise of confidentiality.
In 94-ORD-64, this office dealt with a similar issue. There, the City of Pikeville enacted an ordinance restricting public access to information submitted in order to obtain a business license. Relying on this ordinance, the city denied a request for records reflecting delinquent payment of business license taxes, and the amount of the penalty assessed for each delinquency. Although the Attorney General affirmed the city's denial of that portion of the request which would have required disclosure of the amount of taxes paid or owing, or the penalty assessed, we held that, in general, a promise of confidentiality could not, and would not, be honored. We reasoned:
[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:
See also OAG 82-518, p. 1; 92-ORD-1136.
94-ORD-64, p. 4. Unless it is consistent with one or more of the exceptions to public inspection found in the Open Records Act, a promise of confidentiality has no legal effect.
Mr. Gold speculates that the city might have based its promise of confidentiality on KRS 61.878(1)(c) which authorizes nondisclosure of:
1. Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records;
2. Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
Bearing in mind that the burden of proof in sustaining a denial of an open records request rests with the public agency, 5 and that no evidence has been produced that would suggest that the entries withheld 6 contain information that is generally recognized as confidential and proprietary, we find that the City of Hopkinsville violated the Open Records Act in partially denying Mr. Gold'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.
Footnotes
Footnotes
1 In his letter of appeal, Mr. Gold explained that, in the interest of expediting access, he placed the city on notice that he intended to file an open records request for these records one month before he submitted the request. He conceded that the Open Records Act does not mandate advance notice, but aimed to give the city "additional weeks to research the forthcoming request and have an answer ready."
2 Neither the city, nor Mr. Withers, dispute that this conversation took place, or that Mr. Withers was misquoted. The city apparently elected not to respond to Mr. Gold's appeal, notice of which was mailed to Mr. Withers and the city attorney on May 1, 2000.
3 If the public agency cannot permit inspection on or before the third business day because the requested records are "in active use, in storage or not otherwise available," KRS 61.872(5) requires the agency to provide "a detailed explanation of the cause . . . [of the] delay," and to state the "place, time, and earliest date on which the public record will be available for inspection. "
4 The Attorney General has recognized that the public's right of access to business licenses is not unlimited. Records disclosed to a public agency to obtain a business license, such as social security number or federal identification numbers may be withheld on the basis of KRS 61.878(1)(a). OAG 82-2; OAG 84-93. So, too, may information that reveals the affairs of the business, such as profits, taxes, deductions, and salaries. Mr. Gold concedes that this information may properly be withheld, and does not contest the city's right to do so.
5 See KRS 61.880(2)(c).
6 Namely, whether the business engages in alcohol sales; the business's home office address, phone number, fax number, and contact person; the names of the business's owners or partners; the names of the business's corporate officers; and the titles of the business's corporate officers.