Request By:
Mr. Patrick Watts
General Counsel
Department of Insurance
P.O. Box 517
Frankfort, Kentucky 40602
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Kit Wagar, a staff writer for the Lexington Herald-Leader, has appealed to the Attorney General, pursuant to KRS 61.880, your response to his request to inspect a number of documents in the custody of the Department of Insurance. Mr. Wagar explains that on November 1, 1991, he submitted a request for access to:
[T]he recently completed examination report of Kentucky Central Life Insurance Co. and any subsidiary insurance companies if separate reports were created.
* * *
[A]ll correspondence with Kentucky Central or any representative of the company since July 1, 1989;
Complaints or other correspondence with third parties about Kentucky Central or any subsidiary since July 1, 1989.
You responded to Mr. Wagar in a letter dated November 7, 1991. Relying on KRS 61.878(1)(j), which authorizes an agency to withhold public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, and KRS 304.2-270, you stated that the report of examination of a domestic insurer may not be made available for public inspection. You advised Mr. Wagar to contact Kentucky Central Life, which had indicated its willingness to release the report.
With respect to the second category of records identified in Mr. Wagar's request, you responded that a request to produce all correspondence with a major domestic insurer for two and one-half years imposes an unreasonable burden on the Department, requiring it to produce voluminous records, and that pursuant to KRS 61.872(5), his request was denied.
In response to Mr. Wagar's request for "complaints or other correspondence with third parties about Kentucky Central or any subsidiary, " you indicated that since July 1, 1989, 117 complaints had been filed against Kentucky Central Life, 66 complaints filed against Kentucky Central, and 41 complaints. You explained that as a matter of Department policy, those portions of closed complaints which reveal the identity, personal health, and financial information of complainants, as well as preliminary drafts, notes, correspondence with private individuals, and preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated, are not disclosed pursuant to KRS 61.878(1)(a), (g), and (h). Continuing, you observed:
It is Department policy to attempt to separate records which may be withheld from other records so that those portions of the record which can be disclosed may be made available for inspection by the public. However, with the average complaint file consisting of 10 to 20 pages of documents, your request for access to complaint files and correspondence means that the Department staff would be required to sift through thousands of documents in order to separate those records which may be withheld from those which could be available for public inspection.
Again relying on KRS 61.872(5), you denied Mr. Wagar's request. You did, however, offer to make available a "complaint summary report" covering the period from July 1, 1989, through November 1, 1991, for those insurance companies identified in his request. In closing, you noted:
Your request suffers from being too broad. If you will let me know specifically what it is you seek, I will do all I can under the law to see that you receive access to those records.
In a follow up letter, dated November 18, 1991, Mr. Wagar attempted to narrow his request by reducing the time frame for correspondence and complaints received by the Department relative to Kentucky Central and its subsidiaries from 29 months to 3 months. Additionally, Mr. Wagar acknowledged that he had obtained a copy of the examination report he had originally requested from the company, and that that portion of his request was therefore moot.
You responded to Mr. Wagar's second letter on November 22, 1991, stating that although you appreciated that his request had been narrowed, you were "uncertain as to whether it is possible to do what [he] requested." Nevertheless, you indicated that the Department intended "to attempt to comply" with his request. You advised Mr. Wagar that any attempt to locate all of the requested correspondence might "take some time." You reaffirmed the Department's policy on exempt information contained in complaints, concluding that you anticipated that "at least two weeks" would be needed to gather the requested records. You assured Mr. Wagar that you would contact him in writing in two weeks with a status report. These assurances notwithstanding, Mr. Wagar indicates that this was the last written communication he received from you.
In his letter of appeal to this Office, Mr. Wagar states that on at least five occasions between early December and mid-February, he attempted to reach you by telephone, and was advised that you were working on his request. In an addendum to his appeal, he states that he spoke with you on February 19, and was advised that 90 percent of the documents, totalling some 500 pages, had been gathered. You stated that the documents would be available soon, but did not designate a time.
Mr. Wagar objects to your invocation of KRS 61.872(5), arguing that it is "inherently contradictory to say that [you] cannot follow the law because following the law is too burdensome. " In addition, he takes issue with the Department's policy on segregating exempt information, insisting that the "desire to segregate material . . . is [not] sufficient justification to delay release of the documents for two weeks," and presumably longer. He notes that since his initial request, the Department has gathered only 8.62 pages per business day, and asserts that this delay and the Department actions are "clearly unreasonable."
Mr. Wagar asks that we review your response to determine if these actions are consistent with the Open Records Act. For the reasons set forth below, we conclude that although you have demonstrated your willingness to release the requested documents, despite the onerous burden on your agency, your actions have been inconsistent with the Act to the extent that they have resulted in an inordinate delay in the release of the records.
OPINION OF THE ATTORNEY GENERAL
This is an appeal brought pursuant to KRS 61.880(4), which provides that if a person feels the intent of the Open Records Act is being subverted by an agency short of denial, he or she may complain to the Attorney General and that complaint shall be subject to the same adjudicatory process as if the record had been denied. Although you have indicated your willingness to comply with Mr. Wagar's request, he argues that you have subverted the Act by requiring him to wait an inordinately long period of time for release of the documents.
It is the opinion of this Office that the Department of Insurance has failed to provide timely access to the records identified in Mr. Wagar's request. KRS 61.872(4) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Mr. Wagar's initial open records request was submitted on November 1, 1991. You responded on November 7, 1991, denying that request on the basis of KRS 61.878(1)(j) and KRS 61.872(5). His revised request was submitted on November 18, 1991. On November 22, 1991, you advised him that the Department intended to comply with his request, but would need "at least two weeks" to gather the documents, and segregate the exempt from the nonexempt information. As of February 19, 1992, Mr. Wagar had not been afforded access to the requested documents. Some ninety-three days elapsed between the date of the revised request, with which you indicated your willingness to comply, and the date of the last reported communication, and Mr. Wagar had not been afforded access to the documents.
The Department of Insurance erred in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at p. 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request. " See also , OAG 91-200. In your last reported communication with Mr. Wagar, you stated that although ninety percent of the documents had been gathered, they were not yet available for review. You did not designate the place, time and earliest date on which the records will be available for inspection. We believe that a delay of this duration is inconsistent with the Open Records Act.
The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records if an agency elects to segregate exempt information. As we have noted, KRS 61.872(4) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records containing both exempt and nonexempt information, such time limitations are virtually impossible to meet. We recognized this problem in OAG 90-24. At page 12 of that opinion we held:
Where the request for records is broad . . ., and involves numerous records in which confidential information is commingled with information that might be releasable, he difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872(5).
Although you did not invoke KRS 61.872(5) to authorize nondisclosure of the documents Mr. Wagar requested, you demonstrated that the task of gathering the documents and separating the exempt information was a burdensome one which would require "at least two weeks." It is the opinion of this Office that although the two week inspection date which you originally proposed was reasonable under the facts presented, the three months which have elapsed since Mr. Wagar submitted his revised request represent an inordinate and unreasonable delay. The Department should therefore immediately arrange for Mr. Wagar to inspect the documents identified in his November 18, 1991, request.
In an early opinion, this Office recognized:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, at p. 3. Nevertheless, we have also recognized:
State agencies and employees are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.
OAG 76-374, at p. 5. We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of separating exempt and nonexempt materials. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
As required by statute, a copy of this opinion will be sent to Kit Wagar. Both the Department of Insurance and Mr. Wagar may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).