NOT TO BE PUBLISHED

96-ORD-68

March 28, 1996

In re: Nancy Arnett Rayburn/Office of the Kenton County License Inspector

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Office of the Kenton County License Inspector's response to Ms. Nancy Arnett Rayburn's February 6, 1996 open records request to inspect the following records:

1. The name of the business, the business owner, the business address, the business telephone number of all delinquent business taxpayers, including payroll and net profits on December 31, 1995.

2. The name of the business, the business owner, the business address, the business telephone number, the date of application for the occupational license application for the period November 1, 1995 to January 31, 1996.

By letter dated February 12, 1996, Mr. Larry Klein, License Inspector, Kenton County Fiscal Court, responded to Ms. Rayburn's request, stating:

This Office has received your completed “REQUEST FOR INSPECTION/COPIES OF KENTON COUNTY FISCAL COURT OCCUPATIONAL LICENSE FEE PUBLIC RECORDS” application. The request acknowledges that the material is to be used for a commercial purpose and while certain information is subject to disclosure pursuant to KRS 61.870 et seq, there is a restriction relating to the release of “confidential” information.

Therefore this Office requires additional time to review what information is confidential and what information may be released. When a determination is made regarding what information may be released you will be advised of the costs associated with providing that information. It is anticipated that no more than 10 days is required in order to complete the review and accumulate the information which we are permitted to release.

By letter dated February 22, 1996, Mr. Klein informed Ms. Rayburn that the office had completed review of her request and stated the following:

This Office has reviewed your request for certain Kenton County occupational license information including the name, owner, address, and telephone number of new businesses and delinquent taxpayers under the Kentucky Open Records Law as contained in Kentucky Revised Statutes 61.870 to 61.884.

The name, owner, and address of new businesses may be provided to you in one of two manners. In addition a fee is charged for the information as permitted by statute since its stated or intended use is for a commercial purpose.

The first method of providing the information is the same as was provided to you previously at a cost of $0.10 per page and one hour of staff time at $28.00 per hour for an approximate total cost of $73.00. The second method would provide only a list of new businesses including name, address, and owner of the business, for the dates requested. However the second method would necessitate a new computer program to extract such information in the manner requested. The cost of writing such a program to Kenton County Fiscal Court is $100.00 and must be borne by you in addition to one hour of staff time at $28.00 per hour and copy charges of $0.10 per page for approximately 45 pages. The total cost for this second method of providing the information requested is $132.50.

The request for the name, address, and owner of businesses which are delinquent in payment of occupational license fees cannot, under advice of legal counsel, be released to you as it would “ . . . constitute a clearly unwarranted invasion of personal privacy” per KRS 61.878(1)(a).

Please notify me as soon as possible as to which method of reporting the information that you prefer and upon payment of either fee above the appropriate list will be produced.

In her letter of appeal, Ms. Rayburn asserts the Office of the Kenton County License Inspector violated the Open Records Act by denying her access to the requested records and by failing to timely respond to her request.

Subsequent to receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, this office received a response from Mr. Klein regarding the issues raised in the appeal.

In his response, Mr. Klein states:

Please find enclosed a copy of the Open Records Request application filed with this Office by Ms. Rayburn. Please note Section IV, “DESCRIPTION OF REQUEST,” indicating that the purpose of obtaining the information is to “ . . . call business owners” and “ . . . discuss accounting and tax services.” Clearly this represents a commercial purpose for obtaining the records since Ms. Rayburn owns and operates an accounting firm and does not represent a simple request by a concerned or interested member of the general public. The motives are obviously to enhance the profit-seeking venture of an individual and open the records of Kenton County taxpayers to an unwarranted intrusion for the sole purpose of commercial solicitation. Further, it is my contention that the releasing of telephone numbers, some of which may be unlisted numbers, would not be permitted since those numbers are the property of Cincinnati Bell or other telephone services and not subject to release by any party unrelated to the private agreement between the owner of the property and the lessee.

In addition, the occupational license fee imposed by Kenton County is measured by the wages, earnings, commissions, and other compensation of individuals and businesses. Agreeably, while that information is confidential, any release of the names and addresses of these individuals and business owners, in my opinion, would have an unsettling effect on our taxpayers who trust that the confidentiality of other information held by this Office is being maintained.

In addition, with regard to releasing the names and addresses of delinquent taxpayers, since the delinquency is dependent on the timely filing of one's personal or business earnings, this action would appear to be an “ . . . unwarranted invasion of personal privacy.” To my knowledge neither the Internal Revenue Service nor the Kentucky Revenue Cabinet does not, and is not compelled to do so, make public the names and addresses of individuals and businesses whose taxes, also based on personal or business earnings, are delinquent.

For the reasons which follow, it is the decision of this office that the Office of the Kenton County License Inspector's response to Ms. Rayburn's request was inconsistent with the Open Records Act.

KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requester within three working days of receipt of the request, and indicate whether the request will be granted. If the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld.

The initial response to Ms. Rayburn's request was deficient because the agency did not respond to the request within the prescribed time and it did not set forth a statutorily authorized basis for either delaying production of the records for inspection or withholding the requested records. The Open Records Act does not authorize an agency to delay action on an open records request pending review of the applicability of a given exception to the Act or to do legal research. 92-ORD-1620. To the extent it failed to timely provide a statement of the specific exception which authorized withholding the records and a brief explanation of how the exception applied to the records withheld, or, in the alternative, to release the records she requested, the response of the Office of the Kenton County License Inspector was procedurally deficient and inconsistent with the Open Records Act.

In his February 22, 1996 response, Mr. Klein informed Ms. Rayburn that she would be provided the name, owner, and address of new businesses from the occupational license records. She was denied access to the business telephone numbers. To the extent the response fails to cite the specific exception authorizing the withholding of the business telephone numbers and a brief explanation of how the exception applies to the records withheld, the response is procedurally deficient.

Turning to the substantive issues in this appeal, we conclude that the Office of the Kenton County License Inspector acted inconsistently with the Open Records Act in denying access to the business telephone numbers. Likewise, the agency's denial of access to records to obtain the name, address, and owner of businesses which are delinquent in payment of occupational taxes on the basis that it would constitute a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a) is also inconsistent with the Open Records Act.

This office has consistently recognized that occupational license records are open to public inspection to obtain the business names, addresses and telephone numbers of occupational license holders. 94-ORD-64; 92-ORD-1119; OAG 85-1.

In OAG 84-93, this office observed:

An occupational license is a temporary grant of special privilege by the local government. As such, it is our opinion that public access to the information contained in the license, such as business name and address, is not an unwarranted invasion of personal privacy.

In OAG 85-1, we concluded that the requester should be permitted to inspect the records pertaining to occupational license fees to obtain the principal business location, address, and telephone number of each person or entity filing questionnaires with the Sinking Fund.

In its March 1, 1996 response to the letter of appeal, the Office of the Kenton County License Inspector contends that the release of the business telephone numbers, some of which are unlisted, would not be permitted since those numbers are the property of Cincinnati Bell or other telephone services and not subject to release by any party unrelated to the privacy agreement between the owner and the lessee. No statutory basis or exemption from disclosure under the Open Records Act is cited to support this position and we are aware of none. Accordingly, we conclude that the agency failed to sustain its burden of proof to justify the withholding of the business telephone numbers.

A blanket denial of all business telephone numbers on the basis that some of the numbers are unlisted is insufficient to support nondisclosure of all of the business telephone numbers. Moreover, there is generally not an expectation of privacy in a business telephone number. If there exists such an expectation by a business in the nondisclosure of an unlisted business telephone number, then such may be withheld or redacted under the privacy exception, KRS 61.878(1)(a), if the agency cites that exception and articulates a rationale for protecting that interest.

The public is entitled to know what businesses and professions have been licensed to exist and operate within the boundaries of the governmental unit. We have also 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. “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, at p. 3.

Nevertheless, we have held that the public's right of inspection is not unlimited. The public cannot have access to information about a license which is made expressly confidential. KRS 131.190(1) prohibits the release of certain tax records, and provides in relevant part:

No present or former secretary or employee of the Revenue Cabinet, or employee in the Finance and Administration Cabinet's Office of Financial Management and Economic Analysis, member of a county board of assessment appeals, property valuation administrator or employee thereof, or any other person, shall 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 cabinet 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.

Records disclosed 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 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 or the penalty assessed reveals the private details of the taxpayer's business, it is not subject to disclosure since to do so reveals the affairs of the taxpayer's business. 94-ORD-64.

Accordingly, it is the conclusion of this office that the Office of Kenton County License Inspector improperly withheld the name and address of licensees who are delinquent in paying their occupational taxes. The records should be made available for Ms. Rayburn's inspection.

When a public record contains information of an excepted and a non-excepted nature, the public agency can provide access to the nonexcepted material by either providing a copy of the record with the excepted material masked or deleted, or by creating a list containing the nonexcepted material as derived from the records in its files. KRS 61.878(4).

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

JMR/210

Distributed to:

Nancy Arnett Rayburn, CPA

Rayburn & Company LLP

525 West Fifth Street

Covington, Kentucky 41011-1209

Larry Klein

License Inspector

Kenton County Fiscal Court

P. O. Box 792

303 Court Street, Room 207

Covington, Kentucky 41012