TO BE PUBLISHED
95-ORD-107
July 24, 1995
In re: The Floyd County Times/Kentucky Justice Cabinet, Division of Charitable Gaming
OPEN RECORDS DECISION
This appeal originated in the submission of a request to inspect public records by Ms. Susan Allen, a staff writer for The Floyd County Times, to the Kentucky Justice Cabinet, Division of Charitable Gaming. On February 1, 1995, Ms. Allen requested copies of "applications of establishments in Floyd County licensed to operate Bingo games." On behalf of the Division of Charitable Gaming, Ms. Heidi Engel, Assistant General Counsel, denied Ms. Allen's request. Relying on KRS 61.878(1)(c)2.d., which excludes from mandatory disclosure all records required by an agency to be disclosed to it, and generally recognized as confidential or proprietary, which are compiled and maintained for the grant or review of a license to do business, Ms. Engel explained:
[A]pplications submitted by all entities seeking a license to do business as a charitable organization or charitable gaming facility are required by the Division of Charitable Gaming and contain confidential and proprietary information as set forth in KRS 238.535(9)(e)(f)(g)(h).
Since the applications are compiled and maintained for the grant or review of a license to do business, she argued that they could properly be excluded from inspection. Ms. Engel offered to provide Ms. Allen with a forty-seven page list containing the names of all charitable organizations and charitable gaming facilities to which temporary or permanent licenses have been issued. This appeal, submitted by Mr. Scott Perry, publisher of The Floyd County Times, followed.
The question presented in this appeal is whether the Division of Charitable Gaming properly relied on KRS 61.878(1)(c)2.d. in denying Ms. Allen's request. For the reasons set forth below we find that the Division failed to sustain its burden of proof relative to the invocation of this exception, and its application to the records withheld, and that the Division's reliance on the exception to authorize a blanket denial of Ms. Allen's request was inconsistent with the Open Records Act. However, the Division's invocation of this exception to support denial of access to social security numbers which appear on the applications was appropriate.
The General Assembly has declared "that the basic policy of KRS 61.870 to 61.884 is 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 . . . ." KRS 61.871. Consistent with this policy, the General Assembly has assigned the burden of proof to the public agency in an open records appeal to this office or the circuit court. KRS 61.880(2)(c); KRS 61.882(3). The Attorney General is thus bound by a rule of strict construction in interpreting the exceptions to the Open Records Act, and all doubts must be resolved in favor of disclosure.
KRS 61.878(1)(c)2.d. excludes from public inspection:
[R]ecords confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained . . . [f]or the grant or review of a license to do business.
To successfully raise this exception, a public agency must establish that the records: (1) are confidentially disclosed to the agency or required by the agency to be disclosed to it; (2) are generally recognized as confidential or proprietary; and (3) are compiled and maintained for the grant or review of a license to do business. It is apparent that the disputed records satisfy the first and third parts of this three part test in that they are required by the Division to be disclosed to it for the grant of a license to conduct charitable gaming. The question before us, then, is whether the records that have been withheld are generally recognized as confidential or proprietary. [1]
In enacting Chapter 238 in 1994, the General Assembly clearly articulated its purpose and intent. KRS 238.500 thus provides:
The purpose of this chapter is to comply with constitutional requirements by establishing an effective and efficient mechanism for regulating charitable gaming which includes defining the scope of charitable gaming activities, setting standards for the conduct of charitable gaming which insure honesty and integrity, providing for means of accounting for all moneys generated through the conduct of charitable gaming, and providing for suitable penalties for violations of laws and administrative regulations. The intent of this chapter is to prevent the commercialization of charitable gaming, to prevent participation in charitable gaming by criminal and other undesirable elements, and to prevent the diversion of funds from legitimate charitable purposes. In order to carry out the purpose and intent, the provisions of this chapter, and any administrative regulations promulgated in accordance with this chapter, shall be construed in the public interest and strictly enforced.
(Emphasis added.) Although the chapter contains no direct reference to the Open Records Act, there can be little doubt that a corollary of public regulation is public accountability through records access, subject to the exclusions recognized in the Act. Guided by these observations, we conclude that, with the exception of social security numbers which are confidentially disclosed to the Division of Charitable Gaming for the grant or review of a license to do business, and which are generally recognized as confidential, the Division's blanket denial of Ms. Allen's request for applications to operate bingo in Floyd County was improper under the Open Records Act, and inconsistent with the principles which inform the Charitable Gaming Act.
We have examined the standard application for a license for a charitable organization to conduct charitable gaming in Kentucky, Form CG-T-1, which contains various types of information, eleven categories of which are described in KRS 238.535(9). Although the Division of Charitable Gaming has withheld all of this information from disclosure, it has in fact claimed that only four categories of information on the application form are exempt. The four categories of information claimed as exempt from disclosure are listed in KRS 238.535(9)(e), (f), (g), and (h):
(e) A detailed accounting of the charitable activities in which the charitable organization has been engaged for the three (3) years preceding application for licensure;
(f) The names, addresses, dates of birth, and Social Security numbers of all officers of the organization;
(g) The names, addresses, dates of birth, and Social Security numbers of all employees and members of the charitable organization who will be involved in the management and supervision of charitable gaming;
(h) The address of the location at which charitable gaming will be conducted and the name and address of the owner of the property, if it is owned by a person other than the charitable organization . . . [.]
The Division of Charitable Gaming has offered no proof that any of this information is generally recognized as confidential or proprietary. Indeed, it appears to us that most of the information is not of a confidential or proprietary nature, but goes directly to the issue of whether the organization complies with the requirements for licensure. The only category of information on the form that we find to be generally recognized as confidential is the category of social security numbers. Social security numbers have long been recognized as uniquely sensitive and confidential information regarding an individual. Because these numbers are generally held in confidence, they are "confidential" within the meaning of KRS 61.878(1)(c)2., and can properly be withheld under that exception.
We are not persuaded that any other types of information on the application form enjoy the same "confidential" status as social security numbers. The Division of Charitable Gaming having failed to adduce any evidence to the contrary, we have no alternative but to find that the Division did not meet its burden of proof, and to declare that, with the exception for social security numbers which we have noted, the applications are open records.
The Division violated the Open Records Act by failing to disclose the nonexempt portions of the applications. KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
The Division could not, in our view, reasonably assert that the entire application is exempt. [2] It would therefore be obligated to mask off those portions for which it successfully raised the exemption, and release the remainder. By failing to articulate the basis for nondisclosure of those portions which could properly be excluded with any degree of specificity, and by failing to release the nonexempt portions per KRS 61.878(4), the Division violated the Open Records Act.
We do not mean to suggest that certain information which appears on the applications could not properly be withheld under one or more of the other exceptions to public inspection. For example, the names, home addresses, and dates of birth, as well as the social security numbers, of the officers and employees of the charitable organization could almost certainly be withheld under KRS 61.878(1)(a), the privacy exception. Information which could properly be characterized as private financial data might also be withheld under this exemption. Because the Division of Charitable Gaming did not raise this exception, we do not address its applicability to the records withheld. With respect to KRS 61.878(1)(c)2.d., we conclude that the Division improperly relied on this exception in issuing a blanket denial of Ms. Allen's request. However, because the social security numbers which appear on the application are generally held in confidence, and therefore qualify for exemption under KRS 61.878(1)(c)2.d., the Division may withhold this information.
The Division of Charitable Gaming and the Floyd County Times may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/186
Distributed to:
Hon. Heidi Engel, Assistant Counsel
Justice Cabinet, Division of Charitable Gaming
Bush Building, Second Floor
403 Wapping Street
Frankfort, KY 40601
Mr. Scott Perry, Publisher
The Floyd County Times
P.O. Box 391
Prestonsburg, KY 41653
[1]The language of the exemption found at KRS 61.878(1)(c) was substantially amended in the 1994 General Assembly. Whereas previously a public agency was required to show that the release of records confidentially disclosed to it in conjunction with an application for a loan, the regulation of a commercial enterprise, or for the grant or review of a license to do business, and generally recognized as confidential or proprietary, would permit an unfair commercial advantage to competitors of the entity that disclosed them, under the amended KRS 61.878(1)(c)2., the agency is no longer required to establish that release would commercially disadvantage the entity. It is sufficient under the exception, as amended, if the agency establishes that the records were confidentially disclosed to it in conjunction with an application for a loan, an application for or the administration of assessments, incentives, inducements, and tax credits, the regulation of a commercial enterprise, or the grant or review of a license to do business, and are generally recognized as confidential or proprietary.
[2]This office has previously recognized that applications for a license are not generally exempt from public inspection. See, e.g., OAG 80-444; OAG 81-51.