Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Boone County Property Valuation Administrator violated the Open Records Act in the disposition of Richard A. Brueggemann's June 14, 2006, request 1 for public records identified as:
1. A copy of the policies, guidelines, directions or instructions maintained or utilized by your office to determine the assessments on properties within Boone County.
2. The entire database file of real property records maintained in the office of the property valuation administrator in Boone County Kentucky, less and except any property tax returns and accompanying documents submitted by a taxpayer that are considered confidential under the provisions of KRS 131.190. (See KRS 133.047(4).)
3. All assessment notices issued by your office during 2006. Please provide the data contained in these in an electronic or digital format; if not available in electronic or digital format please so state, and provide copies of these records. 2
For the reasons that follow, we find that the PVA violated the Open Records Act in the disposition of these requests.
By letter dated June 23, 2006, Douglas M. Dowell, Attorney Manager in the Office of Legal Services for Revenue, Finance and Administration Cabinet, responded to Mr. Brueggemann's request. With reference to his request for "policies, guidelines, directions, or instructions" utilized by the PVA, Mr. Dowell advised that there "are no particular [responsive] documents or records," explaining that "[t]he PVA is . . . guided by the relevant provisions of the Kentucky Constitution and Kentucky Revised Statutes and such other sources as he may from time to time consult or come across . . . ." With reference to Mr. Brueggemann's request for the "entire database file of real property records," Mr. Dowell responded:
We construe the second item as requesting access to tax rolls. To the extent it seeks access to any other records, this request is denied as not sufficiently clear and specific as well as unreasonably burdensome. See 03-ORD-025 at 7; OAG 89-8 at 2-3; OAG 83-386. You may inspect the tax rolls by contacting the PVA and making an appointment to do so during regular working hours.
On behalf of the PVA, Mr. Dowell denied Mr. Brueggemann's request for all 2006 assessment notices in an electronic or digital format, referencing his response to an earlier open records request, in which he asserted that "assessment notices, addressed to individual taxpayers . . . would be exempt from disclosure under the Open Records Act as confidential and private information and correspondence with private individuals. KRS 61.878(1)(a), (i), and (l); KRS 131.190; 131.081(15); 133.047; OAG 83-167."
Mr. Brueggemann initiated this open records appeal on June 23, 2006, having received no response to his request as of that date. 3 It was his position that "[t]he data requested is specifically subject to disclosure and/or inspection pursuant to KRS 133.047(4)," as construed in OAG 92-30 and 04-ORD-038. In supplemental correspondence directed to this office following commencement of Mr. Brueggemann's appeal, Mr. Dowell elaborated on the PVA's position. He maintained:
The PVA assesses in excess of 43,000 properties for ad valorem tax purposes. The assessment notices the requestor seeks number over 6,300 and would have to be printed out manually, as they are not available in electronic or digital format.
The open records request(s) in question not only lack sufficient clarity to be proper, but are also overbroad and pose an unreasonable burden in that they embrace a large number of records (relating to thousands of properties assessed by the PVA) containing a variety of material, some of which would be exempt from disclosure under the Open Records Act. KRS 61.872(5); 133.047. The PVA maintains a tax roll as required by law and is certainly willing to allow access to that. He also maintains a working roll in electronic form which is continuously updated and revised to change as new or different information comes to light. It would therefore constitute preliminary matter exempt from disclosure under KRS 61.878(1)(i) and (j). Other records in the PVA office would be paper records, some of which would be subject to disclosure and some of which would not, for a variety of reasons that cannot be fully stated without reviewing all of those records. Some of these records would constitute confidential taxpayer information. KRS 61.878(1)(l); 133.047. There may also be preliminary material in these records as well as correspondence with private individuals. KRS 61.878(1)(i) and (j). Potentially there cold also be material exempt from disclosure under the attorney-client privilege. KRS 61.878(1)(l); 447.154; KRE 503. The request(s) in question are therefore overbroad and unreasonably burdensome.
Respectfully, we disagree.
Policies, guidelines, directions, or instructions
Although the PVA denied the existence of "particular documents or records" responsive to Mr. Brueggemann's request for policies, guidelines, directions, or instructions utilized by his office in determining assessments on properties, he acknowledged that he is guided by 'such other sources as he may from time to time consult or come across . . . ." From this, we must infer that there are guidance documents he employs in the discharge of this fundamental duty. If so, we believe that 98-ORD-179 and 06-ORD-032 4 are controlling on this issue. There, the Attorney General rejected a claim of attorney client privilege and held that disclosure of the Department of Revenue's 5 policies and procedures manual would "'further the citizens' right to know what their government is doing' and what policies and procedures govern the Cabinet's conduct," 98-ORD-179, p. 9, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), and questioned the adequacy of the Department of Revenue's search for responsive records. Given the PVA's statement that "other sources" are "consulted" "from time to time," we believe it is incumbent on his office "to describe the search it undertook to locate responsive policies, or if it made no actual effort in this regard, to 'conduct a search using methods which can reasonably be expected to produce the records requested.'" 06-ORD-032, p. 7 citing 95-ORD-96, p. 7. If this search yields no results, or alternatively, if the search uncovers the responsive "other sources" but a review of those sources confirms the presence of statutorily protected material, it is incumbent on his office to so advise Mr. Brueggemann. The PVA's denial based on the nonexistence of any "particular" documents or records is otherwise legally unsupportable.
Entire database of real property records
The Attorney General has addressed the issue of public access to governmental databases in a number of recent decisions, recognizing as a threshold issue, that a database is unquestionably a 'public record' as that term is defined at KRS 61.870(2)." 03-ORD-214, p.6, citing 00-ORD-206, p. 7 (holding that "[KRS 61.870(2)] is inclusive, extending to all 'documentation regardless of physical form or characteristics . . .'"); see also, 95-ORD-82 (Louisville Division of Police arrest database) ; 00-ORD-206 (Department of Corrections criminal records database) ; 02-ORD-148 (Kentucky Fair and Exposition Center employee database) ; 03-ORD-004 (Cabinet for Health Services Medicaid database) ; 05-ORD-116 (Personnel Cabinet payroll database) . The majority of these decisions have focused on open records requests for particular fields of information maintained in the database, as opposed to requests for entire database, and the public agency's discretion, under KRS 61.874(3), to decline such a request in the absence of a pre-existing query, filter, or sort capable of extracting the specific information sought.
For example, in 03-ORD-214 we were asked to determine if the Kentucky Tobacco Settlement Trust Corporation properly denied a request for the Phase II payments database for the year 2002, identifying the quantities used in calculating payments (indicating tobacco quota owned or tobacco grown), and requiring manipulation of the data contained therein. We concluded that the Corporation erred in denying the request, but satisfied its obligation to disclose the records by producing them in standard format, as defined at KRS 61.874(2)(b). The Corporation was not required, in our view, to tailor the format to conform to the parameters of the request. Relying on 03-ORD-004, in which we held that the Cabinet for Health Services was not obligated to compile information in a format which did not exist or direct the creation of a program to extract that information from the existing database, but that it must, in the alternative, provide the requester with a copy of its entire database after those fields of information for which statutory protection existed were properly masked, we held that the Corporation's obligations were satisfied by release of the entire database in the format in which it is regularly maintained. 03-ORD-214, p. 9, citing 03-ORD-004, p. 8, 9 and 02-ORD-89, p. 12, note 5; see also, 04-ORD-117.
The Attorney General reasoned:
KRS 61.874(3) speaks directly to this issue, providing in relevant part:
(Emphasis added.) In 01-ORD-158, the Attorney General examined this provision, opining:
01-ORD-158, p. 4. This position mirrors the holdings in a series of decisions dating from 1995 and recognizing that it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. 95-ORD-82, 96-ORD-133; 98-ORD-151; 99-ORD-68; 02-ORD-148.
05-ORD-116, p. 3, 4; compare, 05-ORD-116 (Personnel Cabinet acknowledged existence of a query capable of extracting particular information requested from its payroll database, and request must therefore be treated as a standard request). 7
Mr. Brueggemann does not ask that the Boone County PVA reformat his existing "database file of real property, " 8 or tailor the format to satisfy his particular needs, but instead asks for a copy of the database in its entirety. It is therefore not within the discretion of the PVA to deny his request per KRS 61.874(3). As noted, the database is a public record governed by the Open Records Act, and it is incumbent on the PVA to provide Mr. Brueggemann with a copy upon request. If any portion of the database is statutorily excluded from public inspection, the PVA is obligated to so notify Mr. Brueggemann, identifying the protected information, citing the applicable exception, and explaining how the exception applies to the information withheld per KRS 61.880(1), redact or mask the protected information fields per KRS 61.878(4), and make the nonexempt information available to him per KRS 61.872(1). 9
Consistent with the rule announced in prior decisions of this office, "[i]f information is subject to routine public scrutiny under one statute (e.g., KRS 133.047), that some information, in general, cannot be properly termed confidential pursuant to KRS 61.878(1)(a)." OAG 89-50, p. 2; see also, OAG 89-40; 04-ORD-038. Thus, the PVA may not withhold "[i]nformation regarding the location of real property, its description, ownership history through time, and valuation history" inasmuch as "[s]uch information, in being factual information about property, rather than a person, is not of a 'personal nature,'" and is "subject to recognized public recordation and routine public perusal, as, for example, in a deed book." Id. The basis for withholding any information from the requested database must be articulated in terms of the requirements of the Kentucky Open Records Act, as construed in these decisions, redaction of that information cannot be equated with records creation, and the PVA must absorb any costs associated with redaction. 95-ORD-82 (rejecting agency argument that redaction of exempt information from an existing database results in the creation of a new records, and holding that "[r]equiring an agency to generate a previously nonexistent record upon request is not . . . equivalent to requiring it to redact exempt information from an existing records"). 10
We are not persuaded that Mr. Brueggemann's request for the "Entire Database File" lacks sufficient clarity, is overbroad, and would impose an unreasonable burden on the PVA's office because it "embraces a large number of records." As Mr. Brueggemann correctly notes in his answer to the PVA's supplemental response, this precise descriptor appears on the "Fee Schedule for Property Valuation Administrator's Office" developed and provided to each PVA by the Department of Revenue pursuant to KRS 133.047(4). Inasmuch as the language of his request mirrors the language that appears in the statutorily mandated fee schedule, it cannot be reasonably argued that it is imprecise. 97-ORD-46. In a recent unpublished opinion, the Kentucky Court of Appeals determined that "as long as the custodian can identify what documents the applicants wish to see, [KRS 61.872] is satisfied." Department of Corrections v. Chestnut, Ky. App., 2004-CA-1497-MR (2005). 11 Mr. Brueggemann's request meets, and, in our view exceeds this standard. Although the request implicates a broad range of records, it is couched in sufficiently specific terms to enable the custodian to identify what records he wishes to see. Moreover, there is little evidence in the record on appeal, clear and convincing or otherwise, to establish that honoring Mr. Brueggemann's request would impose an unreasonable burden on the Office of the Boone County PVA within the meaning of KRS 61.872(6). Having failed to "forecast what [the] actual burden will be," Chestnut, at 4, the PVA's response is deficient, and we cannot affirm his claim of an unreasonable burden.
2006 Assessment Notices
Nor do we affirm the PVA's denial of Mr. Brueggemann's request for the 2006 assessment notices on the basis of KRS 61.878(1)(a), (i), and (l), incorporating KRS 131.190, 131.081(15), and 131.047, or as unreasonably burdensome. Our analysis proceeds from the some line of reasoning set forth above, with regard to the database files of real property, and the recognition that "information regarding the location of real property, its description, ownership history through time, and valuation history" is factual information about property, "subject to public recordation and routine public perusal," and not personal information protected by the privacy exception, KRS 61.878(1)(a). Our review of the assessment notice tendered by Mr. Brueggemann to this office in support of his argument that "only 'publicly records information is contained [therein]" confirms the absence of confidential or otherwise protected information within the meaning of KRS 61.878(1)(a).
KRS 61.878(1)(i) is facially inapplicable to the assessment notices. That exception authorizes public agencies to withhold "preliminary drafts, notes, [and] correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " The PVA does not, and could not reasonably, argue that the notices are drafts or notes, but instead maintains that they qualify as "correspondence with private individuals." We disagree. The exception excludes "correspondence which is intended to give notice of final action of a public agency" and the disputed records give just such notice, to wit, the 2006 assessment. The notices are therefore excluded from the exception by its express language. Additionally, this office has held that KRS 61.878(1)(i), insofar as it extends protection to "correspondence with private individuals," "is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2; 05-ORD-072. Clearly, the exception does not extend to all writings from private individuals to a government agency or from the agency to private individuals, and a written notice of final action of an agency, relative to property assessment, does not qualify for protection.
We have examined each of the provisions cited by the PVA, codified in Chapters 131 and 133 of the Kentucky Revised Statutes, and find that they are similarly inapplicable to the disputed notices. The notices consist of information the disclosure of which is mandated, rather than restricted, by KRS 133.047(4), as "real property records in the office of the property valuation administrator." Insofar as they cannot properly be characterized as "real property tax returns and accompanying documents submitted by a taxpayer," within the meaning of KRS 133.047(4), "Kentucky tax returns and reports, including any attached information or documents," within the meaning of KRS 131.081(15), or "information regarding the tax schedules, returns, or reports required to be filed with the department [of Revenue] or other proper offices," the notices do not qualify for exclusion from public inspection. Accord, OAG 89-40 (holding that "[f]or the bar on release regarding returns or schedules to apply, an instrument must in fact be a return or schedule"). As Mr. Brueggemann correctly notes, "Assessment notices merely provide the assessor's assessment . . . [and contain] no taxpayer supplied information or other information excludable under [Chapter 131] . . . ."
We again find insufficient evidence in the record on appeal to support the claim that fulfilling Mr. Brueggemann's request for the 2006 assessment notices would impose an unreasonable burden on the Office of the Boone County PVA. Although the argument is advanced that to do so would require the PVA to manually "print out" some 6,300 notices "as they are not available in electronic or digital format, " we concur with Mr. Brueggemann in the view that "the wording of the PVA's denial of an electronic source suggests the reality is otherwise." "If the notices can be 'printed out,'" he argues, "it logically follows that there is a source from which the printing will be derived," and that "source is susceptible to being copied electronically." We agree. In the absence of clear and convincing evidence that the PVA must retrieve 6,300 hand typed assessment notices and reproduce them on a copying machine, we find that his argument of an unreasonable burden is without merit, and that he is obligated to provide those notices to Mr. Brueggemann in the electronic or digital format in which his response to this appeal indicates they exist.
Conclusion
KRS 133.047 evinces a legislative commitment to insuring public access to property tax records generated by the property valuation administrator in the ordinary course of business. The decision we reach today is intended to further that goal and advance the public's right to know that the PVA is faithfully discharging his duty to "assess at its fair cash value all property which it is his duty to assess" and that "[t]he property of one person [is] not . . . assessed willfully or intentionally at a lower or higher relative value than the same class of property of another . . . ." KRS 132.450(1).
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.
Richard A. BrueggemannHemmer Pangburn DeFrank PLLCSuite 200250 Grandview DriveFt. Mitchell, KY 41017
Ron BurchProperty Valuation AdministratorP.O. Box 388Burlington, KY 41005
Douglas DowellStaff Attorney ManagerDivision of Legal ServicesSuite # 80200 Fair Oaks LaneFrankfort, KY 40601
James R. Schrand IIBoone County AttorneyP.O. Box 83Burlington, KY 41005-0083
Footnotes
Footnotes
1 Although not relevant for purposes of this appeal, Mr. Brueggemann indicated in that request that the information sought:
is needed to evaluate the methods allegedly employed in establishing the assessments on corresponding Assessment Notices, and to ascertain, in connection therewith, the underlying objectivity or lack thereof. The data may also be used in connection with assessments that were issued to either [him] or client(s) represented by [him] or both.
2 Mr. Brueggemann's request identified a fourth category of records and information which he wished to access by receipt of copies through the mail. On appeal, he withdrew his fourth request pending "review of the data requested in items 2-3."
3 In his supplemental response, Mr. Dowell explained that the delay in issuing a response was occasioned by the Boone County PVA's absence from his office to attend a professional conference. This does not, in our view, represent a legitimate basis for failing to respond or otherwise postponing access. The PVA's absence did not toll the agency's statutory response time, and the failure to respond within three business days constituted a violation of KRS 61.880(1). Accord, 94-ORD-86; 96-ORD-185; 98-ORD-161; 00-ORD-226; 02-OMD-166. In each of these decisions, the Attorney General recognized that "in the event the official custodian is absent, 'an individual should be appointed as acting custodian to respond to open records requests in a timely fashion.'" 00-ORD-226, p. 2. We urge the Boone County PVA to review the cited decisions to insure that future responses to open records requests conform to the requirements codified at KRS 61.880(1).
4 Although our records do not indicate that an appeal to the Franklin Circuit Court was taken from 98-ORD-179, the Department of Revenue appealed our decision in 06-ORD-032 on March 15, 2006. (No. 06-CI-00381, Franklin Circuit Court, Division 1). That appeal is pending in the circuit court.
5 Formerly, the Revenue Cabinet.
6 Now, the Commonwealth Office of Technology.
7 05-ORD-116 was appealed to the Franklin Circuit Court on July 7, 2005 (No. 05-CI-917, Division II).
8 The record on appeal is devoid of any direct statement, or inference, that the Boone County PVA does not maintain a "database file of real property. "
9 Pursuant to KRS 61.872(3)(b), as construed in 02-ORD-89, the PVA must mail copies of the requested records to Mr. Brueggemann upon prepayment of reasonable copying and postage charges. Because his principal place of business is located in Kenton County, his description of the requested records is precise, and the records are readily available within the PVA's office, he satisfies the requirements set forth in the provision. Moreover, discretion rests with Mr. Brueggemann to designate whether he wishes to obtain the records in electronic or hard copy format, per KRS 61.874(2)(a), inasmuch as the records are currently maintained in electronic format.
10 We reject the PVA's argument that the requested database is preliminary in nature. Mr. Dowell notes the existence of "a working roll in electronic form which is continuously updated and revised to change as new or different information comes to light." We must assume that the "working roll" is the equivalent of the database file of real property records.
In 97-ORD-183, (enclosed), this office determined that the Treasury Department's database of lost and abandoned property was not a preliminary draft or note, notwithstanding the Treasurer's claim that "new accounts are added as reported . . . .[and] deleted as property is claimed." We held that if we "accept[ed] the Department's reasoning, we must conclude that the record never becomes final," and directed the Department to treat the database as an open record. 97-ORD-183, p. 4, 5. Applying this analysis to the database at issue in this appeal, we find that it is neither a preliminary draft nor note.
11 Although Department of Corrections v. Chestnut is an unpublished opinion that, in accordance with CR 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a later published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was granted in this case on May 10, 2006 (2006-SC-0000 86).