Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This open records appeal having been presented to the Office of the Attorney General, and the Attorney General being sufficiently advised, we find that the Office of the Marshall County Attorney improperly relied on KRS 131.081(15) and KRS 131.190(1)(a), incorporated into the Open Records Act by KRS 61.878(1)(l), as well as KRS 61.878(1)(i) and (j), in denying Ray Gough's July 26, 2011, request for records relating to installment payment agreements entered into by the County Attorney and six named delinquent property taxpayers 1 under authority of KRS 134.504(8)(a).
The records to which Mr. Gough sought access in his July 26 request were identified as:
. the payment installment agreements for the [six named] Marshall County property taxpayers/bills for 2010 taxes along with any receipts for payment of these bills;
. all other payment agreements or installment plans for tax years 2001 through 2009 regardless of whether the delinquent tax was paid in full, is still being paid on, or was defaulted on;
. all court motions or orders to void, exonerate, or lower a property tax bill from 2001 to the present.
In a timely written response, Marshall County Attorney Jeffrey G. Edwards denied Mr. Gough's request "based on, but not necessarily limited to, . . . KRS 61.878(1)(l) [sic] and KRS 131.081(15) . . . [which] states that taxpayers have a right to privacy in their tax-related affairs." With specific reference to "court motions or orders to void, exonerate, or lower a property tax bill," Mr. Edwards invoked KRS 61.878(1)(i) and (j), characterizing those records as "preliminary drafts and notes" which Mr. Gough was not entitled to inspect. Following unsuccessful attempts to resolve this matter, Mr. Gough initiated this appeal asserting that KRS 131.081(15) has no application to property tax records since "[d]elinquent taxes can be viewed in the County Clerk's office, property values can be viewed and copied in the Property Valuation Administrator's office[,] . . . and [e]very aspect of property tax [is] open for public viewing." Mr. Gough maintained that the privacy interests of the delinquent property taxpayers must yield to the public's right to know how the County Attorney discharges his duties under KRS 134.504(8)(a).
In correspondence directed to this office after Mr. Gough initiated his appeal, Mr. Edwards defended his denial of the request explaining:
[O]ur office entered into a contract with the Department of Revenue allowing our office to execute payment plan agreements with property owners regarding their tax bills. A portion of this contract states as follows:
Continuing, Mr. Edwards observed:
KRS 131.190 is explicit in that "any person" is prohibited from divulging "any information" "of the affairs of any person . . . ." Furthermore, KRS 131.081(15) unequivocally states that "no information pertaining to the returns, reports, or the affairs of a person's business shall be divulged by the department to any person . . . ." Neither provision is specific to tax returns or income taxes. Instead, both speak broadly toward the general "affairs" of a person, which encompasses all tax-related information.
Mr. Edwards therefore argued that his office "is both contractually and statutorily bound by the[se] provisions" and that he could not "fathom a scenario in which the information that Mr. Gough is seeking would be subject to open records disclosure. "
Although the County Attorney is indeed bound to observe prohibitions on disclosure of "information acquired by [the Department of Revenue] of the affairs of any person, or information regarding tax schedules, returns, or reports required to be filed with the department or other proper office . . .," these prohibitions do not extend to "[a]ny matter properly entered upon any assessment record, or in any way made a matter of public record" under the exception to KRS 131.190(1)(a) found at KRS 131.190(1)(b)2. Because the property tax records supporting the payment agreement plans identified in Mr. Gough's request are "made a matter of public record, " neither enjoys protection under KRS 131.190 or KRS 131.081(15). Nor can the information, or the payment plans based upon it, be properly characterized as preliminary drafts or notes. Therefore, the records are non-exempt public records to which Mr. Gough, and the public generally, must be afforded access.
In an early open records opinions analyzing KRS 131.190 , the Attorney General recognized:
One of the purposes of the Open Records Law is to allow any member of the public to personally check on the operation of the government by inspecting the original records of public agencies . . . . 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. 2. Continuing, the Attorney General recognized that "[t]he public's right is limited . . . in that it cannot have access to the details of the taxpayer's business which the taxpayer has revealed to the taxing authorities as required by law or which have been uncovered by investigation." Id. Like the information at issue in OAG 82-435, namely the identities of the licensees who had or had not paid an annual occupational license fee, the information to which Mr. Gough seeks access "reveals no private detail concerning a taxpayer's business" and therefore must "be made available to the public under the provisions of the Open Records Law. " Id.
In his letter of appeal, Mr. Gough observes that "[p]roperty tax records are and have always been available to the public. Delinquent taxes can be viewed in the County Clerk's office [and] property values can be viewed . . . in the Property Valuation Administrator's office." He is, of course, correct. For example, in OAG 89-50 the Attorney General rejected the claim that property assessment cards enjoy protection under KRS 131.190, reasoning that "information (e.g., ownership, location, etc.) regarding property is, in general, subject to recognized public recordation and routine public perusal - for example, in a deed book" or on the tax rolls which, pursuant to KRS 133.047, are open to public inspection. If information is subject to routine public scrutiny under one statute, we concluded, "that some information cannot properly be termed confidential . . . ." Id. KRS 133.047(4) reflects this dichotomy by providing that while "[r]eal property tax returns and accompanying documents submitted by a taxpayer shall be considered confidential under the provisions of KRS 131.190[, o]ther real property records . . . shall be subject to the provisions of KRS 61.870 to KRS 61.884." With specific reference to delinquent property taxes, not only does the county clerk record a lien for the amount owed as a public record but KRS 134.128(5) requires him or her to publish notice of all delinquencies in the newspaper "in accordance with the provisions of KRS Chapter 424" in anticipation of their scheduled sale. That notice must identify the property owner, property address, and parcel or lot number. Clearly, the information supporting the payment plans to which Mr. Gough seeks access is "a matter of public record" within the meaning of KRS 131.190(1)(b)(2), is not protected under KRS 131.190(1)(a), and is not subsumed under the confidentiality provisions found in the County Attorney's contract with the Department of Revenue. 2 Delinquent taxpayers cannot be said to enjoy a reasonable expectation of confidentiality in the information.
Nor, in our view, can delinquent taxpayers be said to enjoy a reasonable expectation of confidentiality in the terms of the payment agreement plans which they enter into with the County Attorney pursuant to KRS 134.504(8). Although the statutes do not expressly mandate disclosure of the details of the plans, KRS 134.504(10)(a) requires the County Attorney to notify the County Clerk that a payment agreement exists, and the County Clerk must, in turn, "note on the certificate of delinquency . . . the existence of the payment agreement . . . ." In sum, no assurance of confidentiality is statutorily recognized and none can be offered. The identity of the delinquent taxpayer as well as the amount owed is a matter of public record. So, too, is the fact that a payment agreement plan has been executed by the taxpayer and the County Attorney. It is a short logical step to the conclusion that the terms of the plans, and records documenting the plans, must be publicly accessible. This is especially true in light of the fact that the County Attorney is statutorily vested with the authority to "waive or reduce fees and penalties that are part of the certificate of delinquency" for "good cause" and with the agreement of the affected taxing jurisdiction or fee recipient. KRS 134.504(8)(b). The county attorney's exercise of this statutory authority, along with his or her discharge of this statutory duty, is a matter of public interest. The delinquent taxpayer's desire for confidentiality, unsupported by statute or regulation, must yield to the public's interest in monitoring the county attorney's collection duties.
The records to which Mr. Gough requested access are not protected from disclosure by KRS 131.081(15) or 131.190(1)(a). Nor are they protected from disclosure by KRS 61.878(1)(i) and (j), authorizing denial of open records requests for:
(i) [p]reliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) [p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Regardless of whether the payment agreement plans have been fully discharged, or motions and orders tendered to the courts have been finally acted upon, they are final as to the County Attorney. It is to his actions, and not those of the delinquent taxpayers or the courts, that we look in assessing the propriety of the invocation of KRS 61.878(1)(i) and (j). University of Kentucky v. Courier Journal, 830 S.W.2d 373 (Ky. 1992). Those exceptions are inapplicable to the records his office generated, and he is statutorily obligated to disclose them to Mr. Gough.
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.
Distributed to:
Ray GoughJeffrey G. Edwards
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