Request By:
Alan Reed
Lisa Rogers
Allen O. Wilson
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Cadiz violated the Kentucky Open Records Act in denying Cadiz Record reporter Hawkins Teague's request for "the total amount that Benson International paid the [C]ity in payroll taxes and occupational license taxes." By failing to cite the specific exception relied upon and provide a brief explanation of how it applies to the records withheld, the City violated the express and mandatory terms of KRS 61.880(1). In accordance with prior decisions of this office interpreting KRS 131.190(1) and 67.790(8)(a), this office finds that Mr. Teague is entitled to know the name and location of the business in question, as well as whether the business is delinquent in paying its taxes, but is not entitled to know the amount of the taxes owed or any other information such as profits, deductions, and salaries, which reveals the "affairs of the business." Although the City did not rely upon these specific and mandatory provisions initially or in responding to Mr. Teague's appeal, this office is compelled by significant policy considerations to uphold the denial on the basis of the applicable statutory provisions rather than compound any errors by issuing a decision finding that disclosure of records intended to be protected from public scrutiny must be disclosed.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996).
In denying Mr. Teague's request dated June 9, 2008, City Clerk Lisa Rogers merely advised that "the information which has been requested is an exempt record under KRS 61.878." Noting the Cadiz Record "finds no exemption specified in the above KRS granting the City of Cadiz exemption from the Open Records Act in KRS 61.872," Alan Reed initiated this appeal on behalf of the Cadiz Record by letter dated June 17, 2008. According to Mr. Reed, the City "has violated its own precedent created by granting innumerable requests of [a] similar nature in the past pertaining to both individuals and business entities to this publication."
Upon receiving notification of Mr. Reed's appeal from this office, Allen O. Wilson, counsel for the City, supplemented the agency's response, initially arguing that Mr. Teague's request was framed as a request for information "as distinguished from a request for identifiable public records within the definition of KRS 61.870(2)." Quoting from 95-ORD-131, Mr. Wilson contends the City was authorized to deny such a request inasmuch as the Open Records Act does not require public agencies to compile information to conform to the parameters of a specific request. 1 Likewise, the City's "rules and regulations for inspection of public records adopted pursuant to KRS 61.876" mandate that requesters identify the specific records being sought; consequently, denial of the request was proper in his view. Alternatively, Mr. Wilson argues that "information pertaining to occupational license taxes is exempt pursuant to KRS 61.878(1)(c)(2)(d)." More specifically, "the occupational license tax information is required by city ordinance" to be disclosed to the City, is "generally recognized as confidential or proprietary," and is "compiled and maintained for the grant or review of a license to do business pursuant to city ordinance." Insofar as the information "meets the three-part test enumerated in 99-ORD-220, it may properly be excluded from inspection. " Although the City's initial response was procedurally deficient, the fact remains that the specific information requested is statutorily protected; accordingly, the denial must be affirmed in accordance with KRS 131.190 and governing precedents. Discussion of the City's argument relative to KRS 61.878(1)(c)(2)(d), which is arguably on point as well but has not generally been applied in this context, is therefore unwarranted.
As a public agency, the City must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. 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 .
(Emphasis added). In construing the mandatory language of this provision, the Kentucky Court of Appeals 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-208.
By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies 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 Cir. 1999). As frequently noted by the Attorney General, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Here, the agency provided a timely written response; however, it was otherwise deficient.
Noticeably absent from the initial response issued on the City's behalf are both a citation to whichever specific exception of those codified at KRS 61.878(1) the agency was relying upon, and the requisite brief explanation of how that exception applies on the facts presented. Public agencies must cite the applicable exception, and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed by KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe 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 exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. Similarly, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
Bearing in mind that public agencies like the City have the burden of proof in denying requests under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that the City's initial response was procedurally and substantively deficient; however, the City has at least partially remedied any deficiencies on appeal.
Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests, the City should be guided by the longstanding principle that 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; 04-ORD-181; 04-ORD-080; 02-ORD-187. That being said, this office is compelled to undertake a substantive analysis of the issue presented rather than compound any errors by instructing the City to release protected records.
In Edmondson , the Court recognized that despite undeniable deficiencies in the agency's response, the circuit court had improperly ordered release of the records, "presumably as the only sanction available . . . ." Edmondson at 859. Noting the "crucial issue-that of the exempt status of the material sought to be disclosed-has been overlooked entirely[,]" the Court held that "it is incumbent upon the circuit court to examine this material and to make a determination as to whether it is substantively exempt from disclosure" lest the agency's error be compounded by disclosure of records intended to be protected from public scrutiny. Id . As in 00-ORD-148, this office finds that although the Court did not extend the holding of Edmondson to the Office of the Attorney General, "which acts in a quasi-adjudicative role in resolving open records disputes pursuant to KRS 61.880(2), and this office rarely assays to invade the circuit courts' prerogative, the appeal before us has far-reaching policy implications . . . which compel us to undertake a substantive analysis of the disputed records." Id., p. 4. The City's initial "error cannot be remedied by committing another [namely, requiring disclosure of statutorily protected information] and thus compounding mistakes at the possible expense of due process." Id .
Turning to the substantive issue presented, this office finds that governing precedents validate the City's position that the amount of payroll and occupational taxes paid by Benson International is confidential, albeit on a different basis. In our view, 04-ORD-010 (interpreting KRS 131.190(1)), and 07-ORD-255, (interpreting KRS 67.790(8), which largely mirrors the former statute), 2 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In relevant part, KRS 131.190(1) provides:
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, the Attorney General office has recognized:
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 (emphasis added).
Neither KRS 131.190(1) nor KRS 67.790(8)(a) can properly be construed "to erect an impenetrable barrier" to disclosure of records containing the requested information; however, 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 has expressly been construed to encompass information such as profits, taxes , deductions, and salaries. 07-ORD-255, p. 6. Although nothing in the Open Records Act prohibits disclosure of the fact that a business is delinquent in paying any taxes owed, the amount of taxes owed "reveals the private details of the taxpayer's business," and is therefore protected from disclosure. 3
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 Early on, the Attorney General clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Consequently, this office has consistently held that "requests for information as opposed to requests for specifically described public records [] need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. As a corollary, the Attorney General "has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request." 02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. However, the analysis does not end there. In the alternative, public agencies " are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). If a requester wishes to extract information that has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10 (citation omitted). Accordingly, the City would not be authorized to deny the request in its entirety on that basis alone; further analysis is unnecessary given our conclusion that such information is protected.
2 More recently, the General Assembly enacted KRS 67.790(8)(a), pursuant to which:
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.)
3 As previously indicated, consideration of the City's alternative basis for denial is unwarranted in light of these specific and mandatory provisions. When two statutes concern the same or similar subject matter, the specific shall govern over the general. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000).