Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Treasurer violated the Open Records Act in responding to the February 9, 2001 request of Debbie Berryman for a copy of:
A list of unclaimed property accounts that have a value of $ 4,000 or greater, for the years 1991-2000, with the following information provided for each listed amount;
1) Dollar amount being held;
2) Holder Name for that amount;
3) Holder ID and SUFFIX number for that amount;
4) Holder Address for that amount; and
5) Property Type/Description for that amount.
By letter dated March 12, 2001, Tim Lester, Unclaimed Property Branch Manager, responded to Ms. Berryman's request, advising her, in relevant part:
The lists that we have available are lists for the years 1991 through 1999. These lists are printed on an as-requested basis. Also, per a court decision rendered in Franklin Circuit Court, the lists are to be printed at a cost to you of $ .10 per page.
The information contained in the lists is the owner name; property type/description; holder ID, suffix and year; holder name and address.
Should you wish to purchase a list for any of the years available, please let me know and I will inform you of the cost of any/all lists requested. Our office must receive payment by certified/cashier's check or money order in advance. If you have any questions, please do not hesitate to contact me.
In her letter of appeal to this office, Ms. Berryman stated that "[a]though the Treasury does not say it denies my request, i[t] offers me an alternative list which is not what I requested, therefore I will proceed under the assumption that my request has been denied."
After receipt of Ms. Berryman's letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the Department, through its attorney, Assistant Attorney General Robert S. Jones, provided this office with a response to the issues raised in the appeal. In his response, Mr. Jones explained, in part:
Mr. Tim Lester, Unclaimed Property Branch Manager, responded to Ms. Berryman's request in his letter of March 12, 2001, attached hereto as Exhibit B. Therein, Mr. Lester agreed to provide Ms. Berryman a commercial finders' list which is regularly provided by the Treasury to the general public at the cost of $ 0.10 per page. The list provides the owner's name, property type/description, holder ID, suffix and year, and the holder name and address for all accounts held by the Treasury valued at more than $ 500.00. However, the Treasury refuses to provide a list of accounts which would include both the dollar amount being held and the name or other identifying information about the owner. This has long been the position of the Treasury and is necessary to protect the privacy of property owners for whom the Treasury maintains unclaimed property accounts. The practice has been upheld consistently in the Franklin Circuit Court and recently, in the Kentucky Court of Appeals in the case of Mindy Hines v. Commonwealth of Kentucky, Dept. of Treasury, Appeal No. 2000-CA-000675-MR, rendered March 30, 2001, and ordered published by the Court of Appeals. Said Opinion is attached hereto as Exhibit C. This Opinion is not final. However, the Treasury incorporates the reasoning of that decision as the legal basis for its decision to deny, in part, the request received from Ms. Berryman on February 9, 2001.
In response to Ms. Berryman's assertion that a similar request had been granted, Mr. Jones explained that after reviewing the previous request and the information provided, the Treasury determined that if the previously provided information was used in combination with the finders' list provided to the public, one could deduce the names of the individuals for whom the Treasury holds large accounts, by matching up the corresponding holder information on both lists. In his response, Mr. Jones further explained:
In response to Ms. Berryman's request, the Treasury offered to provide its regular finders' lists. However, if that is not satisfactory to Ms. Berryman, the Treasury would be willing to provide a list of accounts that have a value $ 4,000 or greater for the years 1991 through 2000, which are limited to a provision of the dollar amount being held, and the property type/description for each amount. However, the Treasury objects to providing the holder name for each account, and the holder ID and suffix number for each account, and the holder address for each account. It is asserted by the Treasury that by providing the dollar amount for each account, and the Treasury is providing sufficient information to serve the principle purpose of the Open Records Act.
We are asked to determine whether the response of the Treasury was a violation of the Open Records Act. For the reasons that follow, we conclude the response was consistent with prior decisions of this office and the courts and did not constitute a violation of the Act.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. From documents provided this office, the Treasury did not respond in writing to Ms. Berryman's request, dated February 9, 2001, until March 12, 2001. To this extent, the agency's action constituted a procedural violation of the Open Records Act. The procedural requirements of the Act "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.
Turning to the substantive issue, we conclude the actions of the Treasury did not violate the Open Records Act. This office and the courts have held that the Treasury may withhold from disclosure the amount in an unclaimed property owner's account. In 99-ORD-34, p. 7, this office held:
Thus, the public's right to know under the Open Records Act is premised upon its right to expect its agencies properly to execute their statutory functions. Providing access to the amount in the unclaimed property owners account, while maybe of understandable interest to a commercial finder, would reveal little or nothing about either the conduct or functioning of the Department in its efforts to locate the owner of that property. Accordingly, we conclude the disclosure of the amount of the account would constitute an unwarranted invasion of personal privacy and the Department could properly withhold that information under KRS 61.878(1)(a).
In Mindy Hines v. Commonwealth of Kentucky, Dept. of Treasury, No. 2000-CA-000675-MR, rendered March 30, 2001, the Kentucky Court of Appeals, affirmed the Treasury's practice of not providing access to the amount in an unclaimed property owner's account. At pages 6-7 of its opinion, the Court stated:
Although the public has a right to be informed regarding appellee's [Treasury's] execution of its statutory functions, that right is satisfied by appellee's publication of the names of owners of unclaimed property, as well as information regarding the total values of the property which it holds and disburses each year.
The Court concluded that the release of additional information concerning the value of each private citizen's items of property would reveal little or nothing about Treasury's conduct in executing its statutory functions under the Open Records Act and thus held that disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
In the instant case, the Treasury refused to provide holder information from its records which, if matched up with information in the commercial finders' list, would allow the requester to deduce the amount of the unclaimed property owner's individual account. This was consistent with 99-ORD-34 and Mindy Hines v. Commonwealth of Kentucky, Dept. of Treasury, supra. Accordingly, we conclude Treasury properly withheld disclosure of information that would allow the requester to determine the amount of an unclaimed property owner's individual account, disclosure of which would constitute a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
In a reply to Mr. Jones' response, Ms. Berryman indicated that she was not a "commercial finder" and was not interested in purchasing a commercial finders' list. She stated she was requesting the information in the format requested to track the Treasurer's efforts and the reporting practices of individual holders relative to the reporting of unclaimed funds.
The Attorney General has consistently recognized that under the Open Records Act, all persons have the same standing to inspect public records and that the purpose for which an individual requests those records is irrelevant. 92-ORD-1136; OAG 89-86; OAG 91-129. "If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86, at p. 5. Thus, the reason why Ms. Berryman requested the records and whether she is a "commercial finder" is not relevant to our decision. If Ms. Berryman was entitled to inspect the records, any other requester would also be entitled to inspect the records, including a commercial finder. OAG 89-86. Accordingly, we conclude the response of the Department did not violate the Open Records Act.
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.