07-ORD-169 | KOGC

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 Knox County Judge Executive violated the Kentucky Open Records Act in denying the request of Corbin Mayor Willard McBurney for copies of "all documents showing the amount of occupational license taxes collected (and uncollected) annually by Knox County "for the tax years 2002 through 2006" and related documentation. As a threshold matter, the Judge Executive initially failed to either issue a written response within three business days, citing the applicable statutory exception and briefly explaining how it applies to any records or portions thereof withheld, as required by KRS 61.880(1), or give a detailed explanation of the cause for delay and the date certain on which the records would be available, in accordance with KRS 61.872(5). That being said, the Judge Executive cannot produce nonexistent records for inspection or copying nor is the Judge Executive statutorily required to compile information or create a record to satisfy a request; however, the Judge Executive is required to redact confidential information from any existing record which is responsive per KRS 61.878(4) rather than deny access entirely. As recognized by the Attorney General in prior decisions interpreting KRS 131.190(1), the language of which largely mirrors KRS 67.790(8)(a), upon which the Judge Executive partially relies, the interest of the public "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." 04-ORD-010, p. 10.

By letter directed to J.M. Hall, Knox County Judge Executive, on February 27, 2007, Willard McBurney, Mayor of Corbin, requested the following:

1. Copies of all documents showing the amount of occupational license taxes collected annually by Knox County for the tax years 2002 through 2006.

2. [same but for amount collected from Corbin taxpayers]

3. [same but for amount collected from Barbourville taxpayers]

4. [same but showing payments by Knox County to City of Barbourville]

5. Copies of all documents showing the manner in which the City of Barbourville, and Knox County, apportion each entity's percentage of disbursement of the sums collected from the occupational license taxes collected by Knox County during the tax years 2002 through 2006.

6. Copies of all agreements and any novations, addendums, or modifications, entered into by the City of Barbourville, and Knox County, as a result of the settlement of City of Barbourville v. Knox County Fiscal Court, Knox Circuit Court, Division No. 1, Civil Action No. 99-CI-00472.

7. Copies of all documents showing the amounts of uncollected occupational license taxes for Knox County, expressed annually, for the tax years 2002 through 2006.

8. [same but for amount of uncollected taxes owed by Corbin taxpayers]

9. [same but for amount of uncollected taxes owed by Barbourville taxpayers]

10. Copies of Knox County's annual budget showing all revenues and expenditures for the tax years 2002 through 2006.

Citing KRS 61.878(5), 1 the Mayor asserted that "the general exemptions set forth in the Kentucky Open Records Act do not apply to the exchange of documents and information between two public agencies, when that exchange is necessary to serve a legitimate governmental function." Because the City is "seeking the above-requested information in order to properly assess and determine the effect of an occupational license tax upon Corbin taxpayers which are located in Knox County[,]" a legitimate governmental purpose, the Mayor further argued "there should not be any limitations or prohibitions raised in response" to his request.

On June 12, 2007, Wayne Willis, Occupational License Fee Compliance Officer, responded on behalf of the Judge Executive. Enclosed with his response were "existing records, consisting of Occupational License Fee receipts from October 1, 2001 through May 31, 2007. These records include receipts collected from the City of Barbourville, Knox County Fiscal Court, and the Southeast Kentucky Regional Industrial Authority." Noting that the Mayor had requested "'ALL'" records documenting the fees collected annually, Mr. Willis asserted that "a majority" of the "client records are considered 'Confidential' in nature" per the provisions of KRS 67.790. 2 Most of those records "have Federal and State returns attached to them and can only be released" by order of a court under KRS 61.878(1).

In denying access to Items 7-9 (records documenting uncollected fees), Mr. Willis explained these "amounts are unknown in that fees are based on [a] client's gross wages and/or net profit and are not available until the client files their returns" with his office. According to Mr. Willis, "the 'Corbin' and 'Barbourville' postal delivery area encompasses a far larger area than the corporate boundaries of either city" so granting the request is not possible "in the absence of more specific information." Even assuming the City of Barbourville, the City of Corbin, and the Knox County Fiscal Court "is willing and authorizes the cost of conducting a thorough analysis, producing reports in the format" presumably desired "will require an extensive survey from each business located within the Corbin and Barbourville [c]orporate limits and the actual workplace of each employee affected." At a minimum, honoring the request "will require weeks, if not months to complete, an accurate, up-to-date and properly filed map of the corporate limits of both cities, a list of employers and addresses of businesses located within the city limits," etc. and a "prorated report delineating the amount of time actually spent working in the corporate limits of both cities." 3

By letter dated July 10, 2007, the Mayor initiated this appeal from the denial of his request. As a threshold matter, the Mayor argues that the Judge Executive's denial "on the grounds of confidentiality" violates KRS 61.878(5) insofar as that provision "expressly provides for the exchange of documents between public agencies, and does not contain any limitation as to the nature of the documents to be exchanged." In his view, the Judge Executive, "by sharing documents with another public agency of the Commonwealth of Kentucky," would not be publicly disclosing the information; consequently, the statutory exceptions codified at KRS 61.878(1) do not apply. Reiterating his legitimate governmental purpose in requesting the records, the Mayor contends the denial "violates the plain and unambiguous language" of KRS 61.878(5). In addition, the Mayor correctly observes that Mr. Willis did not identify which documents are deemed confidential per KRS 67.790 "nor did he identify or produce for inspection the non-confidential documents that are in his possession, custody and control." While KRS 67.790 prohibits the " public disclosure" of such tax information, "there is no prohibitory language in KRS 67.790 which prevents the exchange of information between two governmental agencies. " Citing Strong v. Chandler, Ky., 70 S.W.3d 405, 411 (2002), the Mayor asserts that "the exchange of information and documents between two governmental agencies is a necessary function of government that ensures the reasonable and responsible oversight of public funds which is best achieved through the mutual cooperation of governmental agencies. " In his view, the Judge Executive's reliance on KRS 67.790 "is wholly misplaced" insofar as KRS 61.878(5), the more specific provision, "actually directs the sharing of such information and documentation" between the agencies.

Assuming that any of the statutory exceptions do apply, the Mayor contends that Knox County, "as a public agency, generates and maintains the accounting records" containing the requested information, "and can produce these records without producing individual tax returns." In support of his position that such records must be released "even under an open records analysis," the Mayor cites KRS 61.878(2) and Hardin County Schools v. Foster, Ky., 40 S.W.3d 865 (2001). 4 To the extent that any existing records contain protected information, "or can be easily redacted," that information must be disclosed per KRS 61.878(4). "It is not sufficient for Knox County to take the position that because some records may have Federal or State returns attached to them," no information can be disclosed. To the contrary, the denial was procedurally deficient insofar as Mr. Willis did not specify which records were being withheld, cite the specific exception and briefly explain how it applies per KRS 61.880(1), nor did he clarify which records do not exist or explain what steps, if any, were taken to locate the records. In conclusion, the Mayor clarifies that his request for existing documents was misconstrued as a request for the Fiscal Court to conduct a new analysis, including extensive surveys, and produce new reports; the documents "exist independently of any new study, survey or analysis." Finally, the Mayor challenges the Judge Executive's failure to address Items 5, 6 and 10 of his request.

Upon receiving notification of the Mayor's appeal from this office, the Judge Executive, Mr. Willis and Darren K. West, Occupational License Fee Administrator filed a joint response. With regard to Items 1-3 of the Mayor's request, the Judge Executive explains that Knox County "cannot give a breakdown of the amount of Occupational Tax collected for the county, the City of Barbourville, and the City of Corbin, individually. These records simply do not exist." As the name suggests, an occupational license tax is "based on where one works and/or conducts business, not where one's home is located." Accordingly, the Judge Executive has "few if any records of the individual taxpayers [sic] place of residence." In reference to Item 4, these "totals are provided and attached hereto" in the format in which they exist. Likewise, documents responsive to Items 5-6 are "attached and copied from the public records as they exist" in the records of the Office of the Knox Circuit Court Clerk under Civil Action No. "99-CI-00472 City of Barbourville v. Knox County Fiscal Court. " 5

With regard to Items 7-9, the Judge Executive asserts that the "records requested do not exist." Knox County "knows those who are delinquent [;]" however, Knox County does not know the amount that is delinquent. The nature of Occupational License tax is not like that of property tax where the amount is based on a property value assessed by the Property Valuation Administrator." Until the returns are filed, the Judge Executive does "not know and cannot determine the amount of the tax that is owed[.] In fact, once the delinquent returns are filed, they may indicate that no occupational license tax is due." As for Item 10, "Knox County has many budgets for which they maintain [sic] and are responsible for. The request by the City of Corbin does not identify the specific budget requested." 6 In conclusion, the Judge Executive asserts that per KRS 61.878(4) federal "forms and schedules are confidential information and they may not be released to public or non-public entities due to the confidential information not being able to be extracted."

In sum, the Mayor's position is otherwise valid but his interpretation of KRS 61.878(5) is not supported by governing precedents; 7 however, the Judge Executive cannot produce for inspection or copying nonexistent records nor is he required to compile information or create a record to satisfy the request though he is required to redact any confidential information per KRS 61.878(4). As a threshold matter, this office reiterates:

In rendering a decision under the Open Records Act, the Attorney General is not concerned with "heroes and villains." Our review is limited to the legal and factual issues with which we are presented. Our decisions reflect a reasoned and objective resolution of these issues. It is our statutory duty to enforce the rights and obligations of the parties in an open records dispute, not to malign or praise those parties. In the final analysis, we assume a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request.

93-ORD-15, p. 6; See also 05-ORD-099; 96-ORD-185. In other words, our review is confined to issues arising under the Open Records Act. 8

As a public agency, the Judge Executive is required to comply with procedural requirements of the Act. More specifically, KRS 61.880(1) provides that a public agency must issue a written response within three business days of receiving a request; however, the Judge Executive did not respond to the Mayor's request dated February 27, 2007, until June 12, 2007. On appeal, the Judge Executive offers no explanation for this inordinate delay. With regard to application of KRS 61.880(1), the analysis found at pp. 3-5 of 07-ORD-023, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented. Because the Judge Executive did not invoke either of the exceptions, codified at KRS 61.872(4) and (5), his response was procedurally deficient in this regard; likewise, the Judge Executive failed to provide "detailed and particular information" in his response as further mandated by KRS 61.880(1). 05-ORD-167, p. 2, citing Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208. While neither this office nor the courts "have ever required an itemized index correlating each document withheld with a specific exemption," this office has repeatedly held that a public agency "is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable." 97-ORD-41, p. 6; 05-ORD-167. A "bare assertion relative to the basis for denial . . . does not satisfy the burden of proof" imposed by KRS 61.880(2)(c). 00-ORD-10, pp. 10-11.

That being said, a public agency is not required to honor a request for nonexistent records or those which the public agency does not possess. 04-ORD-036, p. 5. Likewise, the Attorney General cannot order a public agency to create records nor declare the failure to do so a violation or subversion of the intent of the Act. With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records, the analysis found at pp. 6-9 of 07-ORD-023 is controlling; the Judge Executive has affirmatively indicated that no records exist which are responsive to Items 1-3 and 7-9 of the Mayor's request, albeit belatedly, and has provided a credible explanation. Assuming the Judge Executive made "'a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested,'" 9 he cannot be said to have violated the Act in failing to produce all of the records in question. Id., p. 8 (citation omitted). See 05-ORD-108. To the extent the Mayor is questioning the content or volume of the records produced, such an issue is not justiciable in this forum.

To clarify, KRS 61.878(4) does require the Judge Executive to redact any confidential information from any existing records which are responsive to the Mayor's request and "make the nonexcepted material available for examination." In 95-ORD-82, this office expressly disagreed with the view "that the mere deletion of exempt information from an existing database results in the creation of an entirely new record." Id., p. 2. Requiring a public agency to generate a previously nonexistent record upon request was not, in our view, "equivalent to requiring it to redact exempt information from an existing record." Id. In 00-ORD-117, the Attorney General concluded that the City of Hopkinsville had violated the Act in withholding five entries from its business license database without reference to one or more of the exceptions codified at KRS 61.878(1), reiterating that business license records are generally open to public inspection. Id., p. 5. Although the public agency had invoked KRS 131.190 in 04-ORD-010, a provision which largely mirrors KRS 67.790 in relevant part, this office concluded that while the public is not entitled to access information about a license which is expressly made confidential, "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. A copy of that decision is attached hereto and incorporated by reference. Just as the expansive interpretation of KRS 131.190 proposed by the agency in that appeal was inconsistent with the Act, the Judge Executive's interpretation of KRS 67.790(8)(a) is overly broad in our view.

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.

Willard McBurney, Mayor

J. M. HallKnox County Judge ExecutiveP.O. 173Barbourville, KY 40906

Wayne WillisOccupational License Fee Compliance OfficerP.O. Box 173Barbourville, KY 40906-0173

Charley G. DixonKnox County AttorneyKnox Co. Courthouse, Ste. 107P.O. Box 1809Barbourville, KY 40906

Footnotes

Footnotes

1 KRS 61.878(5) provides:

The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate governmental function.