NOT TO BE PUBLISHED

96-ORD-96

April 23, 1996

In re: Nancy Harrell/City of Henderson

OPEN RECORDS DECISION

This matter is before the Attorney General on appeal of the City of Henderson's partial denial of Ms. Nancy Harrell's open records request to inspect a “list of every business in the City who pays an occupational license tax and how much they pay.”

Mr. Ken Christopher, General Services Director, City of Henderson, denied Ms. Harrell's request on the basis that business license records are excluded from Open Records provisions per KRS 61.878(1)(c)2(d). He informed her that her request had been referred to the City Attorney and to contact him if she had any questions.

In her letter of appeal, Ms. Harrell asks us to determine whether the City properly denied her request for a list of all people who pay an occupational tax and what they pay.

After receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Joseph E. Ternes, Jr., City Attorney, City of Henderson, provided a written response to the issues raised in the appeal. Mr. Ternes advised that a list of the names of all businesses in the City of Henderson presently having a business license was compiled by the City and, as of the date of his letter, had been supplied to Ms. Harrell. A copy of Mr. Ternes's letter to Ms. Harrell in which he transmitted the list to her was enclosed with his response to this office. In this transmittal letter, Mr. Ternes supplements the City's original response by stating in relevant part:

However, the remainder of your request, which seeks to know “how much they pay,” shall continue to be denied since it is the City's position that this information is exempt from public disclosure in that it may be used to reveal the affairs of the businesses. This is an individual's privacy right protected by statutory law in KRS 131.190(1) and by the confidentiality provisions of the Open Records Act in KRS 61.878(1)(a) and 61.878(1)(c)2(d), and also recognized in Attorney General's opinion 92-ORD-1119.

The portion of Ms. Harrell's appeal relating to the City's denial of her request for a list of the names of businesses in the City which currently have occupational licenses is moot since she has been provided such a list. The remaining issue before us is whether the City properly denied her request for a list as to how much tax each business pays. For the reasons which follow, it is the decision that the City's denial of that portion of Ms. Harrell's request was proper and consistent with the Open Records Act.

This office has consistently recognized that occupational license records are open to public inspection to obtain the names and addresses of licensees. 96-ORD-68; 92-ORD-1119. 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.

This provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), authorizing the nonrelease of:

Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.

This office has held in prior opinions that information which reveals the affairs of the business, such as profits, taxes, deductions, and salaries, are exempt from disclosure. 94-ORD-64; 92-ORD-1119. The amount of tax paid would not be subject to disclosure since to do so would reveal the affairs of the taxpayer's business. Accordingly, we conclude the City properly denied that portion of Ms. Harrell's request for a list of how much tax each of the businesses with an occupational license in the City paid.

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/382

Distributed to:

Nancy Harrell

1329 Clay Street

Henderson Kentucky 42420

Ken Christopher

General Services Director

City of Henderson

P. O. Box 716

Henderson, Kentucky 42420-0716

Joseph E. Ternes, Jr.

City Attorney

19 South Main Street

P. O. Box 616

Henderson, Kentucky 42420