Request By:
Paul AlleyJoe Shriver
Human Resources Director
& Deputy Chief of Staff
Kenton County Fiscal Court
P.O. Box 792
Covington, KY 41012-0792
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 Kenton County Fiscal Court properly relied on "KRS 67.790(8)(a) as defined by KRS 67.790(7)," and incorporated into the Open Records Act by KRS 61.878(1)(l), in issuing a blanket denial of Kentucky Enquirer reporter Jim Hannah's October 17, 2007, request for access to, and a copy of, "the application for a business license for Empire Buffet of Kentucky Inc., located at 770 Clock Tower Parkway in Crescent Springs." For the reasons that follow, and upon the authorities cited, we find that the Fiscal Court's reliance on the cited provision was misplaced.
Shortly after the Fiscal Court denied Mr. Hannah's request, The Kentucky Enquirer initiated this appeal, questioning the agency's reliance on KRS 67.790(8) as the basis for blanket denial. It was The Enquirer's position that KRS 67.790(8) "specifically states it only applies to information having to do with the 'affairs' of the person's business and 'does not extend to information . . . in any way made a matter of public record . . . ." Continuing, The Enquirer observed:
[T]he application requested contains only basic entity information about a business and does not implicate proprietary documents or information relating to the 'affairs' of the applicant. . . . The category of protected documents and information is tax returns and other documents that might reveal the internal workings and finances of an active business. The mere existence of a business and basic information about its legal nature as contained in a business license application in no way reveals the private "affairs of the business."
In support, The Enquirer cited a line of decisions issued by this office recognizing the public's right of access to business license applications for the purpose of 'monitor[ing] the functions of licensing entities . . .," and, in particular, OAG 87-57, in which we held that "the basic information contained in a business application is 'not . . . information which reveals the affairs of a person's business and is not the type of information protected by KRS 131.190(1)." The Enquirer focused on 07-ORD-169, a recent decision in which the Attorney General noted the similarity between the language found in KRS 131.190(1) and KRS 67.790(8), and cautioned against an overly broad interpretation of the latter provision. Based on this analysis, The Enquirer asserted, "[t]he only sensitive information contained on the application may be the social security number which could easily be redacted in accord with the usual open records requirements and practices."
In supplemental correspondence directed to this office following commencement of The Enquirer's appeal, the Kenton County Fiscal Court reaffirmed its position, observing:
Most if not all of [the] . . . authority [cited by The Enquirer ] dealt with denials based on KRS 61.878(1)(a) or KRS 131.190(1). This denial is supported by the plain language of KRS 67.790(8) as defined by 67.790(7) specifically what is a return, "A return . . . shall mean and include any return . . . or form prescribed by the tax district and required to be filed with the tax district . . . ." The statute is on point and prohibits disclosure with no need for interpretation. [ The Enquirer ] cited no case law where a Commonwealth Court of Justice declared the license application to be an open record under KRS 67.790.
Because the Fiscal Court's position reflects a fundamental misconception that records are presumed to be closed unless expressly declared by the legislature or the courts to be open, indeed, that the public has the burden of proving that a record is open, and because this office has previously determined that KRS 67.790(8) cannot be construed so broadly as to authorize blanket nondisclosure of applications for business licenses, we find that the Fiscal Court's reliance on KRS 67.790(8) was misplaced.
We begin with the presumption of openness that informs the Open Records Act and that is found at KRS 61.872, providing that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884." This presumption of openness is mirrored in the statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the statutory assignment of the burden of proof to public agencies resisting disclosure reflected in KRS 61.880(2)(c). The presumption of openness finds clear support in the judicial determination that the Open Records Act "exhibits a bias favoring disclosure, " 1 and that the "unambiguous purpose of the . . . Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment." 2 Thus, "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency, " 3 including applications for a business license, are presumed open unless expressly exempted by KRS 61.878(1)(a) through (n), or a separately enacted confidentiality provision, and the public agency resisting disclosure "bears the burden of proving their exempt status." Board of Examiners at 327.
The Fiscal Court invokes KRS 67.790(8) in support of its denial, asserting that there is "no need for interpretation," of that statute and shifting the burden to The Enquirer to establish that the record is open. The Fiscal Court's position is legally untenable. The Attorney General is statutorily charged with the duty to interpret and apply the Act, 4 and related confidentiality provisions, and public agencies are statutorily assigned the burden of proof. 5 It is therefore not incumbent on The Enquirer , or any other requester, to establish that the record sought is open. It is incumbent on the Attorney General to discharge his statutory duty by interpreting and applying the provisions of the Act and related confidentiality provisions. As the Franklin Circuit Court recently observed in a nonfinal, nonbinding, but nevertheless instructive opinion, "the Attorney General has an ethical obligation . . . to apply the law that he believes in good faith is correct until directed to do otherwise by a court of competent jurisdiction, or until that position has been rejected by a published opinion of an appellate court." Justice and Public Safety Cabinet v. Stephen Malmer and Gregory Stumbo, Attorney General , No. 06-CI-1372 at 9 (Franklin Circuit Court, Division 1, November 19, 2007); accord, 06-ORD-184; 06-ORD-230; 07-ORD-132.
This office has long recognized that business license records are "open to public inspection to obtain the names and addresses of licensees." 6 Because a business license is "a temporary grant of special privilege by the local government, " the Attorney General reasoned, "the public is entitled to know what businesses and professions have been licensed to . . . operate within the boundaries of the governmental unit." 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.
78-809, p. 2. Nevertheless, we have also recognized that the public's right of inspection is not unlimited, but is circumscribed by KRS 61.878(1)(a) and KRS 131.190(1). The weight of recent authority has turned on interpretation of the latter provision. KRS 131.190(1) provides, in relevant part:
No present or former commissioner or employee of the Department of Revenue, present or former members of a county board of assessment appeals, present or former property valuation administrator or employee, present or former secretary or employee of the Finance and Administration Cabinet, former secretary or employee of the Revenue Cabinet, 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 department 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. This prohibition does not extend to information . . . in any way made a matter of public record . . . .
(Emphasis added.) In applying this provision to business licensing records, this office has held:
Records disclosed to the City to obtain an occupational license or collect a license fee, such as social security number and federal identification numbers, remain confidential, and are exempt from public inspection. OAG 82-2; OAG 84-93. Information which reveals the affairs of the business, such as profits, taxes, deductions, and salaries, is also exempt. To the extent that disclosure of the amount of tax paid or owing, or the penalty assessed reveals the private details of the taxpayer's business, it is not subject to disclosure.
01-ORD-63, p. 3, citing, inter alia, 94-ORD-64; 96-ORD-96; 97-ORD-22; 00-ORD-117. Thus, KRS 131.190(1) does not erect an impenetrable barrier to disclosure of business licensing records, but is, instead, limited to information that "may have to do with the affairs of a person's business" and is not otherwise made a matter of public record.
KRS 67.790(8)(a), a more recent enactment of the General Assembly, contains nearly identical language, providing:
No present or former employee of any tax district shall intentionally and without authorization inspect or divulge any information acquired by him or her of the affairs of any person, or information regarding the tax schedules, returns, or reports required to be filed with the tax district 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. This prohibition does not extend to information . . . in any way made a matter of public record . . . .
(Emphasis added.) Just as KRS 131.190(1) cannot properly be construed to erect an impenetrable barrier to disclosure of business licensing records, KRS 67.790(8)(a) cannot properly be so construed. The qualifying language in each provision, "insofar as the information may have to do with the affairs of a person's business," is identical, and our analysis is therefore the same. 7 It is incumbent on the Kenton County Fiscal Court to disclose any and all information appearing on the business license application submitted by Empire Buffet of Kentucky, Inc., that does not disclose the affairs of the business, and KRS 67.790(7), defining the term "return" to include "forms prescribed by the tax district and required to be filed with the tax district" does not alter our conclusion.
Our review of the unexecuted business license application form furnished to this office by The Kentucky Enquirer confirms The Enquirer's view that the only confidential information the Fiscal Court may properly withhold consists of personal information relating to the sole proprietor, namely, his or her social security number and date of birth. The form does not require disclosure of the affairs of the business, as that phrase has consistently been construed, such as profits, taxes, deductions, and salaries. Here, as in 07-ORD-169, we find that the Kenton County Fiscal Court's interpretation of KRS 67.790(8)(a) is "overly broad" and therefore "inconsistent with the [Open Records] Act." 07-ORD-169, p. 10.
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 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
2 Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), characterizing the Act as "a disclosure statute."
3 KRS 61.870(2).
4 KRS 61.880(2).
5 KRS 61.880(2)(c).
6 See, e.g., OAG 81-309; OAG 82-435; OAG 84-93; OAG 85-1; OAG 87-57; 92-ORD-1119; 00-ORD-117; 01-ORD-63; 04-ORD-010; 07-ORD-169.
7 In addition, we note the presence of the same qualifying language relative to "information . . . made a matter of public record" in both provisions. Much of the information found on the business license application is "made a matter of public record" on the Secretary of Sate's website located at http://www.sos.ky.gov/business/filings/online/ .