[opinions/oagheade.htm]

OAG 93-19

February 24, 1993

Senator Mike Moloney

Representative Marshall Long

Chairmen of the Interim Joint Committee

On Appropriation and Revenue

Capitol Building

Frankfort, Kentucky 40601

Dear Chairmen Moloney and Long:

You have asked whether you may release to the public certain information that you have received from the Lottery Corporation regarding their accounts receivable. We conclude that nothing prohibits disclosure of this information.

Facts

On January 29, 1993, you requested the Lottery Corporation to provide you with figures regarding the Lottery's accounts receivable for 1991 and 1992. On February 17, 1993, the Lottery provided you with the information and sent you a cover letter containing the following admonition:

The information contained therein is considered confidential and proprietary. Disclosure of the information to the public would constitute a clearly unwarranted invasion of personal privacy. More-over, this information is protected pursuant to KRS 154A.040(1)(c), as disclosure of such information would endanger the security of the Lottery and its retailers.

Dissemination of this information should be limited to the requesting parties and/or their designees.

The following day you received a letter from the president of the Lottery corporation bearing a similar warning:

I would like to take this opportunity to emphasize to you that the information contained herein is considered legally confidential by the Kentucky Lottery and is protected from open records requests. Not only could release of this information violate the privacy of the citizens who own more than three thousand Kentucky businesses; but its release could also create a serious security threat to both those businesses and the Lottery itself.

You state that it is your opinion that “this position of the Kentucky Lottery Corporation subverts the Lottery Corporation's duty as imposed by KRS 154A.020 to make full financial disclosure to the General Assembly and to the public.” You ask whether the information presented to you is privileged and not intended for public disclosure.

Role of the Attorney General

Before we offer our analysis we must clarify our role in issuing this opinion. Your letter requests that we issue an opinion pursuant to KRS 61.880(4). That statute provides a procedure for appeal to this office when “a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection.” In such instances this office sits as a tribunal empowered to issue an enforceable adjudication of the matter. In the situation you have described, the records in question have been supplied to you; the question, as we understand it, is thus whether you, as public officers, are prohibited from releasing the records that are already in your possession. Since the question is not whether the Lottery Corporation must release the documents in its possession, there is no basis on which to seek an adjudication from this office. We are therefore treating your inquiry as a request for an opinion of the attorney general pursuant to KRS 15.025.

Because this office must serve as a neutral decision-maker should an individual appeal the Lottery Corporation's denial of a request to inspect records, we do not consider whether the corporation may justify nondisclosure of the information in your possession when confronted with another request for the information. This opinion deals solely with the narrow question of whether you are prohibited from disclosing the information that the Lottery Corporation has supplied to you.

Analysis

Your question requires discussion of two statutes: KRS 61.878, which exempts certain categories of records from public disclosure under the open records law, and KRS 154A.040, which exempts certain documents of the Lottery Corporation from public disclosure.

The Open Records Law does not, by itself, prohibit a public agency from releasing any documents in its possession, even if the agency could validly claim that the records fall within one of the exceptions from disclosure. As we said in OAG 79-275, at pp. 3-4:

We believe that when KRS 61.878 (1) says “the following public records are excluded . . . and shall be subject to inspection only upon order of a court . . .”, that the legislative intent was permissive and not mandatory. The exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public examination.

One reason we believe that the exemptions are a shield and not a shackle is that the statutes provide no penalty for releasing exempted documents. . . .

. . .

It must be kept in mind that Kentucky has no statute protecting the privacy rights of individuals in public records.

Thus we conclude that even if the accounts receivable information is privileged from disclosure under KRS 61.878, you may release it without violating the open records act. Neither the Lottery Corporation, nor a retailer asserting a privacy interest, can prevent release of the information once it is in your hands.

We next examine KRS 154A.040(1), which states:

All records of the [lottery] corporation shall be deemed open records and subject to public inspection, unless:

(a) Such record is deemed privileged pursuant to KRS 61.870 to 61.884 [the open records act];

(b) Such record involves a trade secret of the corporation or of a vendor;

(c) The disclosure of the record would endanger the security of the lottery or its retailers.

This statute simply adds three items to the list of records that are exempt from mandatory disclosure under the open records act. Like the open records act, it carries no penalty for the disclosure of records that could be kept confidential. We therefore construe KRS 154A.040(1) to operate in a manner analogous to the open records act: that is, the statute merely provides protection against disclosure for public officials who wish certain lottery records to remain confidential; it does not prevent public officials such as yourselves from voluntarily disclosing such information.

Our conclusions find support in the statutes declaring the purposes of the open records act and the lottery act. In KRS 61.871 the legislature declared 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, even though such examination may cause inconvenience or embarrassment to public officials or others.” In KRS 154A.020(1) the legislature stated that “the Kentucky Lottery Corporation shall be accountable to the Governor, the General Assembly and the people of the Commonwealth through a system of audits, reports and thorough financial disclosure as required by this chapter.” Release of the documents in your possession would therefore further the “free and open examination of public records [that] is in the public interest,” and will help to insure that “the Kentucky Lottery Corporation [will] be accountable to . . . the people of the Commonwealth through . . . thorough financial disclosure . . . .”

Conclusion

It is the opinion of the Attorney General that you may release to the public information supplied to you by the Kentucky Lottery Corporation pertaining to the corporation's accounts receivable.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General