GROOME (WILLIAM E.) VS. DEPARTMENT OF REVENUE
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RENDERED: FEBRUARY 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000100-MR
WILLIAM E. GROOME
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 08-CI-01560
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF REVENUE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; KNOPF,1 SENIOR JUDGE.
STUMBO, JUDGE: William Groome appeals the denial of an Open Records
request entered against him by the Franklin Circuit Court. Groome requested from
the Department of Revenue information regarding oil and gas well numbers and
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
lease numbers corresponding to individual certificates of delinquency upon which
he holds liens. The Department of Revenue, Attorney General, and Franklin
Circuit Court each found that this information was confidential and not subject to
disclosure. Groome argues that this information is public information and
therefore subject to disclosure via an Open Records request. We find that
Groome’s argument potentially has merit, but we are without sufficient findings to
make a final determination of the issue. We therefore reverse the decision of the
circuit court and remand this case for an evidentiary hearing to determine if this
information is public and therefore subject to disclosure.
Mr. Groome is a private purchaser of delinquent oil and gas tax bills.
He is authorized to purchase these tax bills, hold a lien on the underlying property,
and charge additional fees, costs, and interest as provided by statute. One year
after the issuance of these bills, he is then allowed to enforce the certificate of
delinquency. Groome argues that without the oil and gas well numbers and lease
numbers, information the Department of Revenue has, he does not know exactly
what property he has an interest in and cannot enforce his certificates of
delinquency.
On June 24, 2008, Groome, through counsel, submitted an Open
Records request to the Department of Revenue for information pertaining to the oil
and gas properties on which he held tax liens. Specifically he was looking for oil
and gas well numbers and lease numbers corresponding to each certificate of
delinquency.
2
On June 27, 2008, the Department of Revenue denied Groome access
to the information. The Department of Revenue stated that the information
requested was contained on tax return forms and therefore confidential pursuant to
Kentucky Revised Statute (KRS) 61.878(1)(a), (i), and (l), KRS 131.081(15), and
KRS 131.190(1).
KRS 61.878(1)(a) states:
(1) The following public records are excluded from the
application of KRS 61.870 to 61.884 [the Open Records
Act] and shall be subject to inspection only upon order of
a court of competent jurisdiction, except that no court
shall authorize the inspection by any party of any
materials pertaining to civil litigation beyond that which
is provided by the Rules of Civil Procedure governing
pretrial discovery:
(a) Public records containing information of a personal
nature where the public disclosure thereof would
constitute a clearly unwarranted invasion of personal
privacy . . . .
KRS 61.878(1)(i) states that “[p]reliminary drafts, notes,
correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency” are exempt from Open
Record requests.
KRS 61.878(1)(l) states that “[p]ublic records or information the
disclosure of which is prohibited or restricted or otherwise made confidential by
enactment of the General Assembly” are exempt from Open Record requests.
KRS 131.081(15) states:
3
Taxpayers shall have the right to privacy with regard to
the information provided on their Kentucky tax returns
and reports, including any attached information or
documents. Except as provided in KRS 131.190, no
information pertaining to the returns, reports, or the
affairs of a person’s business shall be divulged by the
department to any person or be intentionally and without
authorization inspected by any present or former
commissioner or employee of the Department of
Revenue, member of a county board of assessment
appeals, property valuation administrator or employee, or
any other person.
Finally, KRS 131.190(1) states in pertinent part:
No present or former commissioner or employee of the
Department of Revenue, present or former member of a
county board of assessment appeals, present or former
property valuation administrator or employee, present or
former secretary or employee of the Finance and
Administration Cabinet, former secretary or employee of
the Revenue Cabinet, or any other person, shall
intentionally and without authorization inspect or 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. This prohibition does not extend to
information required in prosecutions for making false
reports or returns of property for taxation, or any other
infraction of the tax laws, nor does it extend to any
matter properly entered upon any assessment record, or
in any way made a matter of public record, nor does it
preclude furnishing any taxpayer or his properly
authorized agent with information respecting his own
return. Further, this prohibition does not preclude the
commissioner or any employee of the Department of
Revenue from testifying in any court, or from introducing
as evidence returns or reports filed with the department,
in an action for violation of state or federal tax laws or in
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any action challenging state or federal tax laws . . . .
(Emphasis added).
To summarize how these three statutes interact, KRS 131.081(15)
states that no information contained on tax returns can be disclosed to the public.
The information Groome is seeking is contained on the oil and gas well owner’s
and lessee’s tax returns. KRS 131.081(15) is an act of the General Assembly and
therefore invokes KRS 61.878, which exempts it from disclosure via an Open
Records request. However, KRS 131.190(1) contains exceptions to KRS
131.081(15) and lists what information can be disclosed to the public.
On July 24, 2008, Groome appealed the Department of Revenue’s
denial of his Open Records request. Groome noted that the Department of
Revenue is responsible for selling the tax delinquency certificates and is the only
source of information from which he can ascertain which properties were sold to
him.2 Groome argued that the information he requested was a matter of public
record and was therefore an exception to the prohibition against disclosure. He
provided a website, http://www.uky.edu/KGS/, which is run by the Kentucky
Geologic Survey and provides a map and list of gas and oil wells, along with the
names of the oil and gas well companies leasing the property. However, the
website does not setout the owner of the property upon which the wells sit.
Groome argued that this website made the information he sought public and
therefore subject to disclosure through an Open Records request.
2
The only identifying information contained on the certificate of delinquency is the name and
address of the taxpayer who owns the property. 5
There is no identifying information regarding
the location of the gas or oil wells themselves.
The Attorney General’s Office rendered an opinion in which it upheld
the decision of the Department of Revenue. The opinion held that KRS 131.190(1)
and KRS 131.081(15) require the information being sought to remain confidential
and not subject to an Open Records request.
On September 18, 2008, Groome appealed the opinion of the Attorney
General’s Office to the Franklin Circuit Court. Upon a motion by Groome for a
hearing, one was held. However, the trial judge declined to hear any more
evidence and only relied on what had been presented to the Attorney General’s
Office. Ultimately, the trial court upheld the decisions of the Attorney General’s
Office and the Department of Revenue and denied the Open Records request. This
appeal followed.
Groome presents several arguments in his brief, but only his first has
merit. He argues that the information being requested is public and therefore not
subject to the prohibitions of KRS 61.878(1)(a), (i), and (l), KRS 131.190(1), and
KRS 131.081(15). Groome again discloses the fact that the information he is
seeking can be found on an internet website that is accessible to the general public.
This case revolves around whether the information Groome is seeking
fits within one of the exemptions provided by KRS 131.190(1). Groome believes
it does because the information can be found publically on the internet.
Interestingly, neither the opinion of the Attorney General’s Office nor the Franklin
Circuit Court address Appellant’s contention that this information can be found on
the internet.
6
The Department of Revenue argues in its brief that the well numbers
available through the Kentucky Geological Survey website are not the same well
numbers as are reported on the tax returns. There was, however, no evidence
presented on the point because the trial court declined to hold an evidentiary
hearing despite Appellant’s request.
At every step of the way Groome has maintained that the information
he is seeking is a matter of public record, however, none of the opinions in this
case have mentioned whether this is true or not in light of the website. For this
reason we find that the circuit court needs to hold an evidentiary hearing in which
Groome and the Department of Revenue can offer proof as to whether the
information being sought is a matter of public record and therefore subject to
disclosure pursuant to KRS 131.190(1).
We, therefore, reverse and remand this case to the Franklin Circuit
Court.
KNOPF, SENIOR JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
CAPERTON, JUDGE, DISSENTS: Groome presents no argument
that would compel the disclosure of the requested information. Whether or not the
information might be available elsewhere does not mean that the same information
derived from a tax form is thereby subject to disclosure.
7
Each year parents claim their children as dependents on their tax
filings, and each year there is a birthday for that child celebrating another year on
this earth. In fact, most children have a birthday party to celebrate their attained
age. The mere fact that they publicly disseminate the information concerning their
birthday or party associated therewith and in celebration thereof does not make the
information contained on the tax forms as to their name or age any more or less
subject to disclosure.
If the information held by the Department of Revenue is from a tax
form, it is not subject to disclosure regardless of wherever else or from whomever
else the information might be available. Certainly, an onerous burden would be
placed on the Department of Revenue if it must determine that the information it
held, derived from a tax return, had been disclosed elsewhere and was, therefore,
subject to release through the Open Records Act.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Bradley A. Sears
Pikeville, Kentucky
Douglas M. Dowell
Frankfort, Kentucky
8
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