January 22, 1997

In re: James L. Thomerson/Lexington Fayette Urban County Government

Open Records Decision

This matter comes to the Attorney General on appeal from the Lexington Fayette Urban County Government's (LFUCG) denial of the open records request of Mr. Peter Baniak, Staff Writer, Lexington Herald-Leader, for copies of or access to Division of Revenue records which would contain “information on delinquent sewer user taxes, landfill user fees, or other Urban County Government fees and taxes” for twenty individuals who were LFUCG council members or candidates for that office.

Relying upon KRS 61.878(1)(a), Ms. Glenda D. Humphrey, Corporate Counsel, LFUCG, denied Mr. Baniak's request, advising that names and addresses would be removed from each document as disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Ms. Humphrey stated that the “names of individuals who are delinquent are not necessary for the public's ability to determine whether the public agency is performing its duties in an efficient and effective manner.” She further explained that, because the few names he requested could, by process of elimination, lead to the identities of delinquent taxpayers, his request was denied. In the alternative, Mr. Baniak was informed he could review and copy a list of all delinquent accounts with the names and addresses removed.

On behalf of Mr. Baniak and the Lexington Herald-Leader Company, Mr. James L. Thomerson, Esq., appeals the LFUCG's denial. In his letter of appeal, Mr. Thomerson states that disclosure of these records relating to delinquent taxpayers will enable the public to monitor how the public agency is applying the law. He argues that,

while the public's interest concerns the application of the law generally, its interest in the present case is especially important since the records in question relate to elected officials and candidates for office.

In support of his position, Mr. Thomerson cites OAG 82-128 (which held that cities may publish the names of persons who owe delinquent water and sewer bills, along with the amount of the deficiency). In addition, stating that since neither the Attorney General's Office nor any Kentucky court had addressed the issue of access to records relating to delinquent taxes or fees, Mr. Thomerson cites Attorney General v Collector of Lynn, a case in which the Massachusetts Supreme Court held that public inspection of lists of owners of real property in Lynn who were delinquent in the payment of their real estate taxes did not constitute an unwarranted invasion of the tax delinquent`s privacy.

On December 19, 1996, we sent a “Notification of Receipt of Open Records Appeal” to the LFUCG and enclosed a copy of Mr. Baniak's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Humphrey, by letter dated December 24, 1996, provided this office with a response to the issues raised in the appeal. She argues that disclosure of the names of council members and candidates for council member, who have delinquent accounts with LFUCG, would do little to further the citizens' right to know what their government is doing and would not in any real way subject the government's action to public scrutiny. Ms Humphrey states the position of LFUCG as follows:

It is our position that specific information such as the name and address of delinquent taxpayers is personal information and exempt from public inspection pursuant to KRS 61.878(1)(a). Further, while the public has a right to inspect documents in order to determine whether public servants are serving the public, disclosing the names of delinquent taxpayers does not ensure that government is operating effectively and efficiently. The account number and the amount of the delinquency is sufficient to determine if the government is operating efficiently.

By letter dated January 2, 1997, Mr. Robert F. Houlihan, Jr., Esq., on behalf of Mr. Baniak and the Lexington Herald-Leader, filed a response to Ms. Humphrey's letter of December 24, 1996. In his response, Mr. Houlihan states, in part:

Finally, the City ignores the public's interest in disclosure when it argues that its actions may be monitored through the release of generic, unidentifiable delinquency information. Tax and fee delinquencies exist all the time. It is in the public's interest to monitor who has failed to meet their legal obligations and whether any particular persons are being given preferential treatment in these matters. As stated in Herald-Leader v Tackett, Ky., 601 S.W.2d 905, 906-7 (1980), citizens have an interest in “see[ing] for themselves how their laws are impartially applied.” The public interest in this case clearly outweighs the questionable privacy interest asserted and, therefore, the disclosure of the records would not meet the second prong of KRS 61.878(1)(a) - constituting a clearly unwarranted invasion of personal privacy.

We are asked to determine whether the LFUCG's denial of Mr. Baniak's request was proper. For the reasons which follow, we conclude that the denial of access to the requested documents was inconsistent with the Open Records Act.

In analyzing the propriety of an agency's invocation of KRS 61.878(1)(a), authorizing the withholding of “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy,” we begin with a determination of whether the records requested contain information of a personal nature. Only if there is a cognizable privacy interest in the information do we proceed to the second part of the analysis: determining whether public disclosure would constitute a clearly unwarranted invasion of personal privacy. Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992); Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994).

In 96-ORD-176, we held that the customer billing records of Winchester Municipal Utilities contained information of a personal nature which touched upon the personal features of private lives to the extent that the information could be used to infer a particular lifestyle of a residential customer or suggest the competitive position of commercial and industrial customers. Moreover, we found that it not unreasonable to assume the utility customers had at least some expectation of privacy in their billing records.

Likewise, we conclude that information contained in public tax records relative to the payment or nonpayment of taxes and fees by individual citizens is information of a personal nature which touches upon their personal and private lives and in which they have some expectation of privacy. Compare 92-ORD-1119, in which we recognized:

Records disclosed to the City to obtain an occupational license or collect a license fee, such as social security numbers 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, are also exempt. To the extent that disclosure of the amount of tax paid, or owing, reveals the private details of the taxpayer's business, it is not subject to disclosure.

The second part of our analysis is to determine whether an invasion of privacy is nonetheless warranted because the public interest in disclosure outweighs the delinquent taxpayer's privacy interest. In Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the court articulated the following standard for determining if a record may properly be excluded from inspection pursuant to KRS 61.878(1)(a):

[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is `clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.

Board of Examiners at 327-328.

In 92-ORD-1119 this office recognized that nothing in the Open Records Act prohibits the disclosure of the fact that a person is delinquent in paying his or her occupational tax. OAG 81-309.

In OAG 82-345, we recognized that 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.

In OAG 86-11, in which we held that the Revenue Cabinet improperly denied a request to inspect records to obtain a list of names and addresses of coal companies which paid coal severance taxes to the State, we stated:

One of the purposes of the Open Records Law is to allow any person to check on the operation of the government by inspecting the records of its various cabinets, departments and agencies. Whether taxes are being paid by persons and companies legally obligated to pay them is a legitimate interest and any person has a right to check on that matter. The only information revealed here concerns the names and addresses of coal companies who paid a legally imposed tax in a particular year. No information pertaining to the affairs of the business of any particular coal company will be revealed such as the amount of taxes paid or the amount of coal extracted.

Moreover, the legislature has recognized that the public may have an interest in the names of delinquent taxpayers by authorizing the publication of such lists. KRS 134.360 and KRS 424.330 (sheriff has the authority to publish the names of those delinquent in paying their taxes and the amount due).

In OAG 82-128, this office, although not dealing with the Open Records Act, held that cities may publish the names of persons who were delinquent in paying their water and sewer bills.

In Attorney General v Collector of Lynn, 4 Med. L. Reptr. 2563 (1979), a case provided this office by Mr. Thomerson, the Massachusetts Supreme Court performed a balancing test, weighing the invasion of the delinquent taxpayer's privacy and the public's right to know. Although this case is not controlling authority in this appeal, we find the court's analysis compelling and adopt its reasoning herein. Finding there was no significant invasion of privacy, the court stated:

Public disclosure of the lists of tax delinquents does involve some invasion of personal privacy. Publication of one's name on such a list would certainly result in personal embarrassment to an individual of normal sensibilities. . . . However, we cannot say that disclosure publicized “intimate details” of a “highly personal” nature. . . . The records disclose whether an owner is meeting his public responsibilities. While an owner of property may have some expectancy of privacy in real estate tax records, he does not have the same expectation of privacy concerning his legal obligation as he has in his private financial affairs.

In holding that the public's interest in disclosure outweighed any invasion of the delinquent taxpayer's privacy which might result, the court reasoned:

[A]ny invasion of privacy resulting from disclosure of the records of tax delinquents is also outweighed by the public right to know whether the burden of public expenses is equitably distributed, and whether public employees are diligently collecting delinquent accounts. The public has an interest in knowing whether public servants are carrying out their duties in a efficient and law-abiding manner.

The public interest supporting disclosure in this appeal outweighs any privacy interests the delinquent taxpayers may have in the disclosure of their delinquency in paying the relevant taxes or fees. It is in the public's interest to monitor who has failed to meet their legal obligations and whether any particular persons are being given preferential treatment in these matters. Thus, the disclosure of the requested records does not constitute a clearly unwarranted invasion of personal privacy exempted from disclosure under KRS 61.878(1)(a). Accordingly, the requested records should be made available for Mr. Baniak's inspection.

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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

James L. Thomerson

Stoll, Keenon & Park

Suite 1000

201 East Main Street

Lexington KY 40507-1380

Glenda D. Humphrey

Corporate Counsel

Lexington Fayette Urban County Government

Department of Law

200 East Main Street

Lexington KY 40507