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; Gerard R. Gerhard, Assistant Attorney General
By letter of October 11, 1989 to Attorney General Cowan, Richard Clay, Esq., has appealed your denial (October 9, 1989) of his September 28, 1989 request to inspect certain records of the Department of Insurance.
FINDING IN BRIEF
The Department of Insurance acted consistent with Open Records provisions where it promptly responded in writing to a request to inspect certain of its records, cited specific statutory exceptions related to records withheld, and provided a brief explanation of how exceptions cited applied. Facts recited by the agency supported its denial of inspection of some 800 records, contained among seventy-seven files, as unduly burdensome (KRS 61.872(5)), where the difficulty of separating confidential from non-confidential material was exacerbated by the substantial volume of records involved.
FACTUAL BACKGROUND
By letter of September 28, 1989, to Insurance Department Commissioner Leroy Morgan, Richard Clay, Esq., asked:
Pursuant to the Kentucky Open Records Act, please furnish me copies of all complaints, investigative reports, findings, and actions taken against Safeco Insurance Company or any of its subsidiaries, especially First National Insurance Company of America, for violation of the Unfair Settlement Practices Act or for refusing in bad faith to deal with claims under policies issued by such companies. I agree to be responsible for the reasonable expense of copies.
You responded to Mr. Clay's request by letters of October 2, and October 9, 1989. You furnished a print-out consisting of some thirty-eight pages to Mr. Clay which apparently summarized some seventy-seven files, and, by letter of October 13, 1989, you furnished additional information to the Attorney General's Office regarding the character of the burden relied upon in denying Mr. Clay's request.
Your response of October 2, 1989, indicated, in substance and in part, that records pertaining to six insurance firms were involved in the request. You indicated that, although the request had no time limitation, records were kept only for five years. You indicated certain records would be denied pursuant to KRS 61.878(1)(a). You provided a brief explanation of how that exception applied to the records that were, or might be, withheld. You further indicated that the request would be researched, and if the burden of the request was deemed too great, it would be denied pursuant to KRS 61.872(5). An explanation of the applicability of this provision was also given. Additionally, you indicated certain records might be withheld pursuant to KRS 61.878(1)(b), (f), (g), (h), and (i). Finally, you indicated, print-outs regarding certain files would be made availabe, with names of complainants deleted pursuant to KRS 61.878(1)(a), at a charge of ten cents per page. The print out, you indicated, would summarize all relevant information concerning each complaint.
In a letter to Mr. Clay dated October 9, 1989, you indicated to him that the Department's research indicated there had been seventy-seven complaints regarding claims filed with the insurers in question. Of these, three "files" were still pending. You indicated no information would be made available concerning the three pending files, citing KRS 61.878(1)(f), and providing a brief explanation of the application of that provision to the records withheld. Regarding the seventy-seven files overall, you indicated, information would not be provided pursuant to KRS 61.872(5). You explained that in view of the volume of records involved, the difficulty of separating confidential information from non-confidential material constituted an undue burden on the agency. You indicated certain print-outs summarizing the files, but not containing complainants names, would be provided for a fee of $ 3.80.
In a letter dated October 13, 1989, to Attorney General Cowan, you detailed the Department's position that the request (or at least part thereof) was unduly burdensome. You explained that the seventy-seven files contained some 800 pages of documents. You explained the details of the effort required to separate confidential from non-confidential information in view of the 800 records involved.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
You promptly responded in writing to a request to inspect certain of the Department's records. You cited specific provisions from among those in KRS 61.878 regarding particular types of records, and provided a brief explanation of the applicability of such provisions to the records which were or might be withheld. Such actions were in keeping with KRS 61.880(1).
The citations to specific exceptions from among those in KRS 61.878 appear to be in keeping with the explanations of the type of records involved.
Regarding the Department's denial of inspection of some seventy-seven files as unduly burdensome pursuant to KRS 61.872(5), you explained the volume involved (some 800 records), and the difficulty associated with separating confidential from non-confidential material given the number of records involved. Your October 13, 1989 explanation regarding the Department's claim of undue burden appears to be supported by the facts you have recited. You did, we note, furnish information that summarized the complaints in question. While this does not take the place of production of the original instruments, it does indicate careful consideration of the request, and an effort to provide assistance. Cf., OAG 83-386.
KRS 61.880(2) requires in part that a copy of a written response denying inspection of a public record be forwarded immediately to the Attorney General. The responses you issued to Mr. Clay do not indicate on their face that they were "copied" to the Attorney General. Further, a review of our records did not reveal that a copy of your October 2, 1989 response was received by the Attorney General's Office. On the other hand, a copy of your October 9, 1989 response to Mr. Clay was promptly forwarded to this office. We believe that in view of the character of your initial response (citing specific exceptions potentially applicable, indicating research regarding inspection of the records was necessary before a final determination), your action (and thus that of the Department) was substantially consistent with KRS 61.880(2).
We believe the bases of denial cited by the Department in its denial(s) were correct in view of the facts, and that the denials were consistent with applicable provisions of the Open Records laws. Accordingly, we believe the Department of Insurance acted consistent with the provisions of KRS 61.870 to 61.884.
As pointed out in your letter of October 13, 1989, Mr. Clay may be able to obtain the records in question through discovery procedures in connection with litigation apparently in process that gave rise to his request.
Mr. Clay has a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Richard Clay, Esq.