Request By:
Commissioner Harold B. McGuffey
Department of Insurance
Capital Plaza Tower
Second Floor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas C. Jacobs, Deputy Attorney General
Please pardon our delay in answering your letter of August 4, 1977 wherein you ask the following questions:
1. Do KRS 304.13-040(3) and KRS 304.13-050(4) require that a "filing" be held in confidence until it either becomes effective or notice of a public hearing is given?
2. If the answer to the above question is in the affirmative, are such filings public records as defined in KRS 61.870(2) and if so, are they required to be open for public inspection under KRS 61.872?
3. If the answers to both questions (1) and (2) are in the affirmative, which statutes are controlling?
4. Is the Board a "Public Agency" under KRS 61.805(2) and thereby subject to KRS 61.810?
5. If the answer to question (4) is in the affirmative, to what extent, if any, are the deliberations of the Board permitted to be conducted in privacy, particularly if the answer to question (1) is in the affirmative and found to be controlling?
It is the opinion of this office that KRS 304.13-040(3) and KRS 304.13-050(4) do not require that a filing be held in confidence until it either becomes effective or notice of a public hearing is given and, further, that such filings are public records as defined in KRS 61.870(2) and as such are required to be open for public inspection under KRS 61.872. It would appear that the open records law, being the later expression of legislative intent, would be controlling with regard to any conflict which might arise in connection with construction of the above referenced statutes.
We further opine that the Kentucky Insurance Regulatory Board is a "Public Agency" under KRS 61.805(2) and thereby subject to KRS 61.810. The open meetings law specifies the types of meetings that may be held in private and absent further factual information this office is not in a position to determine which activities the Board may undertake in private.
The basis for our reasoning in the above response is outlined below:
KRS 304.13-040(3) states in relevant part that:
"A filing and any supporting information shall be open to public inspection after the filing becomes effective, except as provided in subsection (4) of KRS 304.13-050." (Emphasis Added)
KRS 304.13-050(4) sets out the procedure for a public hearing.
The words of these two statutes are plain and the meaning is clear that filings shall be open to public inspection following the occurrence of certain events. The obvious intent of the legislature, as indicated by the wording of the statute, was to insure that filings are not kept confidential after the effective date of the filing and after the giving of notice of a public hearing.
The evil intended to be remedied by the statutes herein discussed is secretiveness not openness. The obvious intent of the legislature is that the public have access to the documents underlying an increase in rates being imposed upon it.
We note that prior to the creation of the Kentucky Insurance Regulatory Board, deliberations concerning these filings were made by the Commissioner and not necessarily in a public forum. Obviously that is not the case now since applications for rates are discussed openly in meetings by the Board. While it may have been appropriate for the applications to have been kept in private prior to action by the Commissioner under the old system, it clearly is inappropriate under the new system.
Since any reorganization pursuant to KRS 12.025 requires subsequent approval by the General Assembly, we would strongly suggest that this matter be brought to the attention of the General Assembly and that clear-cut guidelines with regard to same be given to the Kentucky Insurance Regulatory Board.
One need look no farther than the definition of "Public Agency" in KRS 61.805(2) and 61.870(1) to reach the conclusion that the records of and the deliberations of the Kentucky Insurance Regulatory Board are subject to both the open meetings and open records acts of Kentucky. We know of no exception to the open meetings law which would pertain to deliberations of the new agency and are not possessed with sufficient facts to form an opinion that any of the exceptions to the open records law would apply.
We hope that this information is of some benefit to you and will permit the Board and the Department of Insurance to proceed in an orderly fashion with regard to their consideration of newly filed rate increase applications.