Request By:
Patrick Watts, Esq.
General Counsel
Department of Insurance
P. O. Box 517
Frankfort, Kentucky 40602
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Robert V. Bullock, Assistant Attorney General
Phillip J. Shepherd, on behalf of his client, has appealed to the Attorney General pursuant to KRS 61.880(2) a denial of inspection of certain documents which he requested.
The original open records request asked for a series of actuarial reports related to various actuarial and financial reports on the condition of the PIE Mutual Insurance Company. Through subsequent correspondence with the Department of Insurance and Mr. Shepherd, as well as telephone calls to both parties on March 20, 1989, it has been determined that each of the requested documents have been made available to Mr. Shepherd by the Department of Insurance with the exception of two (2) documents which are the subject of a protective order by the Franklin Circuit Court dated December 12, 1988. The litigants in the action before the Franklin Circuit Court are Kentucky Medical Insurance Company, PIE Mutual Insurance Company, and the Kentucky Department of Insurance. Mr. Shepherd's client is not a party to that litigation. By letter dated January 18, 1989, to the Attorney General, the Department of Insurance has taken the position that they no longer consider the documents requested to be confidential pursuant to the Open Records Law (KRS 61.878); however, Mr. Watts has expressed misgivings about furnishing the two (2) documents in question which are currently under the Court's protective order.
The issue which is now presented to the Attorney General is as follows:
Pursuant to KRS 61.870, et seq., is a public agency required to disseminate to the public records which a court has placed under a seal of confidentiality when the person requesting such records was not a party to the litigation?
OPINION OF THE ATTORNEY GENERAL
At this stage of the matter, the question presented to the Attorney General is not technically an appeal pursuant to the Open Records Act. The Department of Insurance has conceded that the documents in question would be available to Mr. Shepherd except for the protective order of confidentiality issued by the Franklin Circuit Court in litigation to which Mr. Shepherd's client is not a party. The question then becomes whether the Open Records Act supercedes an order by the Franklin Circuit Court when the public agency is properly before the Court as a party to that litigation.
The protective order of the Franklin Circuit Court states in relevant part as follows:
IT IS HEREBY ORDERED,
. . . that the documents attached to and submitted with KMIC's December 2, 1988 Notice, Motion to Supplement Record and any other documents hereafter tendered by a party subject to a designation of confidentiality by the Court be treated as confidential and used only for the purposes of this litigation and, absent an order of the Court to the contrary, shall not be disclosed to persons other than the parties to and their attorneys of record in this litigation.
. . .
Since the Kentucky Department of Insurance is a party to the litigation in which the protective order was issued and since the documents in question come within the purview of the protective order, it is the opinion of the Attorney General that the Department or any of its employees may be in contempt of court and subject to other civil liability if they release to Mr. Shepherd the documents in question. Therefore, the denial by the Department of Insurance of the two remaining documents in question is hereby AFFIRMED.
As required by statute, a copy of this Opinion is being sent to the appealing party, Phillip J. Shepherd, Esq. Either or both of the parties to this appeal have the right to challenge the findings and conclusions set forth in the Opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.