Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Ashland violated the Kentucky Open Records Act in denying the request of Jim Hardwick, President, AFGE, CPL33, Local 1286, 1 for "a copy of [the record listing] those that are paying the Ashland, Kentucky Occupational License Fee or Tax," and "all those professionals, occupations, businesses, law enforcement [agencies], fire departments, or any other entit[ies that are] currently being exempted from paying this tax or fee." In addition, Mr. Hardwick requested a copy of "the currently enacted Ordinance that imposes this tax on those that work" in the City. By failing to notify Mr. Hardwick in writing of its decision within three days, the City clearly violated KRS 61.880(1). Because the City has not established by clear and convincing evidence that granting Mr. Hardwick's request would be unreasonably burdensome, its reliance on KRS 61.872(6) is misplaced. Likewise, the City erred in denying Mr. Hardwick's request on the basis of KRS 61.878(1)(a) in direct contravention of governing precedent. Accordingly, the City must provide Mr. Hardwick with redacted copies of any existing records in its custody which are responsive to his request upon receiving this decision. 2
By letter dated October 13, 2004, Mr. Hardwick directed his request to Deborah Musser, City Clerk, at the Department of Finance in Ashland via certified mail. As evidenced by the certified mail receipt, a copy of which is attached to Mr. Hardwick's appeal, Clyde Workman accepted delivery on behalf of the City on October 18, 2004. In a letter dated October 26, 2004, Kevin P. Sinnette, Assistant Corporation Counsel, responded on behalf of the City, advising Mr. Hardwick that the City considers "records relating to the Occupational License Fee Tax (Payroll Tax) to be voluminous and person in nature," and, therefore, exempt from the Open Records Act by virtue of KRS 61.872(6) and KRS 61.878(1)(a). Attached to the City's response is a copy of the cited provisions. According to Mr. Sinnette, the City has "not released this information to any party that has requested this information." However, the City "will release the total amounts collected by the occupational license fee. "
Having received no response, Mr. Hardwick initiated this appeal by letter dated October 26, 2004. As observed by Mr. Hardwick:
I know that they only had three days to answer my request, so after waiting past the time limit[], [on] Friday,[October 22,] 2004, I called the City and was put in touch with [Mr. Sinnette], City Attorney. He informed me that I could not have the information requested. I then asked him to put that in writing so I could appeal to the Attorney General. I did not receive this response until Thursday[, October 28,] 2004. In his response he states that the information I request is too voluminous and personal in nature.
In Mr. Hardwick's view, the information requested is neither. As a taxpayer, Mr. Hardwick argues that he is "entitled to know who is paying this tax" as well as how much in order to ascertain whether the tax is "being applied fairly[.]" Both the City of Catlettsburg and the Body County Fiscal Court have already provided him with the "same information requested from Ashland." Mr. Hardwick believes that "the city and county listing those in the newspaper who don't pay their property taxes is a perfect example of [his] argument." In closing, Mr. Hardwick explains that he is only requesting "the reverse of this" in order to confirm that the tax is being applied uniformly.
Upon receiving notification of Mr. Hardwick's appeal, Mr. Sinnette elaborated on the City's position. To begin, the City acknowledges denying Mr. Hardwick's request verbally on October 22, 2004, as well as in writing on October 26, 2004. Echoing its previous arguments, the City claims that the "volume of information requested would be burdensome" and is thus exempt under KRS 61.872(6) without further explanation. "More importantly, the information is personal in nature to the extent that Mr. Hardwick wants the names of all individuals paying the occupational license fee within the city." Accordingly, the requested information is exempt from disclosure pursuant to KRS 61.878(1)(a) in the City's view. "It is the city's position that it should not divulge the names of individuals who may or may not be complying with the city ordinance. " Rather, it is "the duty of the city to enforce its ordinances" and to "protect citizens from unwarranted contact by others who may be erroneous in their belief that certain individuals are not complying with any city ordinance. " 3 Consistent with the following authorities, it is the decision of this office that the City's response is procedurally deficient and substantively incorrect.
As a "public agency, " the City is statutorily required to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days. Generally speaking, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cit. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). 02-ORD-165, p. 4. "The burden on the agency to respond within 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)[,]" neither of which the City invoked. 02-ORD-165, p. 3. 4
Failing to respond in a timely and proper fashion, as the City did here, constitutes a clear violation of KRS 61.880(1). 5 Although the City belatedly invoked the exceptions which purportedly apply to the records withheld, the City failed to provide "a brief explanation" of how the exceptions apply, much less "particular and detailed information" in responding to Mr. Hardwick's request. As consistently recognized by the Attorney General, the procedural requirements of the Open Records 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; 04-ORD-114; 02-ORD-187. To avoid future violations, the City should be guided by this longstanding principle in responding to requests submitted pursuant to the Open Records Act. 6
Turning to the first substantive issue presented, it is the decision of this office that the City has failed to satisfy its statutory burden of proof. Pursuant to KRS 61.872(6):
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence. (Emphasis added).
KRS 61.872(6) is intended to afford relief to public agencies where there is a pattern of harassing requests aimed at disrupting essential agency functions or, alternatively, where a single request, or series of requests, is such that production of those records would place an unreasonable burden on the agency. 04-ORD-113, p. 9.
To prevent agencies from exploiting this provision as a means of circumventing the requirements of the Open Records Act, the General Assembly has mandated that a denial under this section be sustained by clear and convincing evidence. As long recognized by the Attorney General, "mere invocation of the cited exception does not sustain the agency's burden." 04-ORD-028, p. 5, citing 00-ORD-72, p. 4; See OAG 89-79. Nor is this burden sustained "by the bare allegation that the request is unreasonably burdensome. " Id. Only if the agency has adduced evidence to support a finding that the burden is indeed unreasonable, will the Attorney General uphold its action. 04-ORD-028, p. 5; See 04-ORD-113; 00-ORD-180; 00-ORD-72. Such is not the case here.
Even a cursory review of the record on appeal reveals that the City has adduced no evidence in support of its position that providing "the volume of information requested would be burdensome, " much less "clear and convincing evidence. " If an agency invokes KRS 61.872(6), it is incumbent on the agency to indicate, at least in general terms, the difficulty in identifying, locating and retrieving the requested records. 04-ORD-028, p. 10. Implicitly acknowledging that responsive records exist and are in its custody, the City relies solely upon the volume of records involved to substantiate its denial of Mr. Hardwick's request. In our view, the analysis contained in 04-ORD-028, pp. 4-12, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. Accordingly, the same outcome necessarily follows. Absent any evidence to support the "bare allegation" that granting Mr. Hardwick's request would place an "unreasonable burden" on the City, this office must conclude that responsive records exist and are readily available within the agency.
Equally unsuccessful is the City's argument that it "should not divulge the names of individuals who may or may not be complying with the city ordinance. " To the contrary, it is a well-established principle that whatever privacy interest the taxpayer may have is clearly outweighed by the public's right to know whether the city is properly executing its duty to collect taxes and prosecute delinquent taxpayers. 97-ORD-22, p. 2. In 04-ORD-010, a copy of which is attached hereto and incorporated by reference, this office was asked to determine whether the Martin County Occupational Tax Administrator violated the Open Records Act in denying the request of a reporter for The Big Sandy News "to inspect records containing the names of the businesses and individuals who are, and are not, paying the recently imposed Business and Occupational Tax." Relying upon 01-ORD-63, the Attorney General concluded that the City's expansive interpretation of KRS 131.190 7 ran counter to the long line of decisions interpreting the Act and KRS 61.810(1)(a) specifically in this context.
Elaborating upon the general principle that disclosure of the information contained in an occupational license does not constitute an unwarranted invasion of personal privacy, this office observed:
Hence, the public is entitled to know what businesses 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, 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 expressly made confidential. KRS 131.190(1) prohibits the release of certain tax records, and provides: [See footnote 7]
Records disclosed to the City to obtain an occupational license or collect a license fee, such as social security number[s] and federal identification numbers, remain confidential, and are exempt from public inspection. OAG 82-2; OAG 84-93. Information which reveals the affairs of businesses, such as profits, taxes, deductions, and salaries, is also exempt. To the extent that disclosure of the amount paid or owing, or the penalty assessed reveals the private details of the taxpayer's business, it is not subject to disclosure.
94-ORD-64, pp. 2, 3; See also 96-ORD-96; 97-ORD-22; 00-ORD117.
The existence of a city ordinance mandating the confidentiality of "all information obtained . . . in the administration of [the occupational license fee] . . ." did not alter our conclusion that the names and addresses of delinquent occupational taxpayers must be disclosed. On this issue, the Attorney General observed:
04-ORD-010, pp. 9-10, quoting 01-ORD-63, pp. 3-4. As in 04-ORD-010, this reasoning is determinative of the issue presented for review. In sum, the public's interest in which businesses and individuals are being taxed, where they are located, and "whether they are delinquent in paying their taxes (but not the amount of the taxes owed or any other information that reveals the affairs of their businesses), is superior to any privacy interest asserted." Id., p. 10. Having failed to satisfy its burden of proof, the City must therefore honor Mr. Hardwick's request with the exception of the amounts owed.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KR 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.
Distributed to:
Jim HardwickAFGE CPL 33 Local 12865839 Hicks RoadAshland, KY 41102
Stephen Gilmere, Mayor1700 Greenup AvenueP.O. Box 1839Ashland, KY 41105
Richard W. MartinCity AttorneyP.O. Box 1839Ashland, KY 41105
Deborah MusserCity ClerkDepartment of FinanceP.O. Box 1839Ashland, KY 41105
Kevin P. SinnetteAssistant Corporation Counsel Legal DepartmentP.O. Box 1839Ashland, KY 41105
Footnotes
Footnotes
1 American Federation of Government Employees affiliated with the AFL-CIO Council of Prison Locals 33, Local 1286.
2 Pursuant to KRS 61.874(1), the City may require Mr. Hardwick to provide "advance payment of the prescribed fee, including postage" if appropriate.
3 According to Mr. Sinnette, the City verbally advised Mr. Hardwick that it would provide him with a copy of the Occupational License Fee Ordinance per his request, a copy of which is attached to its supplemental response. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has therefore held that when access to public records which are the subject of a request is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Because any issues relative to the ordinance requested became moot upon its release, this office must decline to issue a decision as to that record.
4 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Pursuant to KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
5 Because the City accepted delivery of Mr. Hardwick's response on October 18, 2004, its verbal response of October 22, 2004, was untimely, and, therefore, improper even if the City had issued a written response which otherwise complied with KRS 61.880(1).
6 Although the City supplemented its response upon receiving notification of this appeal, a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than to supplant an agency's denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. Id.
7 KRS 131.190 contains exceptions to the general rule that information acquired in tax administration is not to be divulged. Pursuant to KRS 131.190(1):
No present or former secretary or former employee of the Revenue Cabinet, member of a county board of assessment appeals, property valuation administrator or employee, or any other person, shall intentionally and without authorization inspect or 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 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 131.190(2) provides:
The secretary shall make available any information for official use only and on a confidential basis to the proper officer, agency, board or commission of this state, any Kentucky county, any Kentucky city, any other state, or the federal government, under reciprocal agreements whereby the cabinet shall receive similar or useful information in return.