NOT TO BE PUBLISHED

97-ORD-22

February 5, 1997

In re: The Floyd County Times/City of Prestonsburg

Open Records Decision

This matter comes to the Attorney General on appeal from the City of Prestonsburg's denial of an open records request submitted by The Floyd County Times. On January 14, 1997, managing editor Janice Shepherd requested “a listing of Prestonsburg businesses/organizations that owe occupational taxes for more than one year . . . includ[ing] the amount of taxes owed and the number of years the account has been delinquent.” In a response dated January 16, 1997, city attorney Paul P. Burchett denied Ms. Shepherd's request. Relying on KRS 61.878(1)(a), he maintained that information relating to delinquent occupational taxpayers is personal in nature and that disclosure of such information would constitute a clearly unwarranted invasion of privacy. It was his position that “[a] persons [sic] income has always been considered a sacred secret, unless he or she is a public employee . . . [and t]he logic is that the publics [sic] right to be informed does not outweigh the individuals [sic] right to privacy.” This appeal followed.

Upon receipt of this office's notification of open records appeal, Mr. Burchett sent a letter to the Attorney General in which he elaborated on the city's position. Noting that KRS 131.190 and the city's taxing ordinance prohibit disclosure of information acquired in tax administration, he again cited KRS 61.878(1)(a), concluding that “all records received as a result of our occupational tax ordinance are exempt from the open records requirement.”

We are asked to determine if the City of Prestonsburg properly relied on KRS 61.878(1)(a) in denying The Floyd County Times' request. For the reasons set forth below, we conclude that the city improperly denied the newspaper's request for the identities of delinquent taxpayers and the number of years their accounts have been delinquent, but properly withheld information pertaining to the amount of tax owing.

This office has consistently recognized that occupational license records are open to public inspection to obtain the names and addresses of licensees. OAG 82-435; OAG 84-93; OAG 85-1; OAG 87-57; 92-ORD-1119; 94-ORD-64. At page 2, of OAG 84-93, we 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.

Hence, the public is entitled to know what business 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, p. 3; accord, 97-ORD-9.

These opinions, many of which predate the Kentucky Supreme Court's decision in Board of Examiners of Psychologists v The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), withstand scrutiny under the balancing test for the privacy exemption set forth in that opinion and remain valid. In 97-ORD-9, we identified the privacy interest implicated by disclosure of the identities of delinquent taxpayers. Quoting extensively from an opinion of the Massachusetts Supreme Court, we observed:

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. [Citations omitted.] However, we cannot say that disclosure publicized “intimate details” of a “highly personal” nature [citation omitted]. . . . The records disclose whether [a taxpayer] is meeting his public responsibilities . . . [and] he does not have the same expectations of privacy concerning his legal obligation as he has in his private financial affairs.

Attorney General v Collector of Lynn, Mass., 385 N.E.2d 505, 508-509 (1979). Against this privacy interest, we weigh the public's “right to know whether the burden of public expenses is equitably distributed, and whether public employees are diligently collecting delinquent accounts.” Collector of Lynn, supra at 509. Like the court in Attorney General v Collector of Lynn, and consistent with our prior opinions, we find that whatever privacy interest the taxpayer may have is clearly outweighed by the public's right to know whether the city is properly executing its function relative to collection of taxes and prosecution of delinquent taxpayers.

Nevertheless, the public's right to know is not absolute. The public cannot have access to information about a license which is statutorily prohibited from disclosure. KRS 131.190(1) prohibits the release of certain tax records, and provides:

No present or former secretary or employee of the revenue cabinet, 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 department 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 the city 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 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.

It should be noted that this office has repeatedly stated that a city cannot, by ordinance or any other device, regulate access to records in a manner which conflicts with the Open Records Law. In OAG 82-435, at page 2, we observed:

In enacting the Open Records Law, KRS 61.870 - 61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.

See also, OAG 82-158, at p. 1 (“The Mayor does not have the authority to countermand the requirements of the Open Records Law”); 92-ORD-1136.

On its face, the ordinance enacted by the City of Prestonsburg does not appear to conflict with the Open Records Law. In many respects, it follows the language of KRS 131.190(1). As interpreted and applied by the city, however, we believe that the ordinance runs counter to a long line of opinions of this office interpreting the Open Records Law, and the exceptions to it, in this particular context. We therefore conclude that the City of Prestonsburg's reliance on KRS 61.878(1)(a) and Sections 110.09(F) and 110.99 and its own taxing ordinance was, in part, misplaced, and direct the city to release the names of delinquent taxpayers and the number of years their taxes have been delinquent. The city is not obligated to disclose the amount of taxes owed “insofar as the information may have to do with the affairs of the person's business.” KRS 131.190(1).

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

Amye L. Bensenhaver

Assistant Attorney General

82

Distributed to:

Scott Perry

The Floyd County Times

P. O. Box 391

Prestonsburg KY 41653

Paul P. Burchett

City Attorney

City of Prestonsburg

90 North Lake Drive

Prestonsburg KY 41653