Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Department of Insurance's denial of the open records requests of W. David Denton to inspect:
"any and all documents of whatsoever nature that are in the Department of Insurance's possession and pertaining to the complaint of Lourdes Hospital, Inc., against Bluegrass Healthcare Plan, Inc. (DOI File No. 99N00065)."
and
"all records (as afore defined) that may be in the possession of the Department of Insurance pertaining to complaint(s) filed during the first quarter of calendar year 1999 by Dr. George Jirak and/or Purchase Physicians Association, Inc., Mayfield, against Bluegrass Family Healthcare Plan, Inc., and pertaining to Bluegrass' alleged failure to comply with KRS 304.17A-270 and related statutes and/or regulatory provisions."
By letter dated July 1, 1999, Denise Payne Wade, Attorney, with the Department, advised Mr. Denton that Department was providing him with copies of 617 pages of documents relative to the two requests. The Department further advised Mr. Denton that remaining records, totaling 888 pages "consisting of exempt and nonexempt records (that were easily recognized as such) would not be provided." In support of this denial Ms. Wade stated:
Regarding the exempt records and information, please be advised that same consists of the following personal information of Bluegrass Family Health: 1) an operations budget and other financial information, which was confidentially disclosed to the Department; 2) actuarial consultant's reports; 3) actuarial projections; 4) medical expense projections; 5) claims experience information; 6) financial forecasts; 7) business plan and strategy; and, 8) claims paid information.
The exempt materials also include the following records of Department Staff, which are Staff's work papers: 1) records containing attorney-client privileged information, 2) preliminary notes, drafts, and correspondence with private individuals that does not give notice of final action of the Department, and 3) interoffice memoranda containing preliminary recommendations and opinions.
Please be advised that it is the Department's policy to deny access to records that are excluded from the mandatory disclosure provisions of the Open Records Act. Please also be advised that the above-described records and information will not be provided because same is exempt from public disclosure under KRS 61.878(1)(a),(c), (d), (i), (j) and (l) of the Act and KRE 503.
In his letter of appeal, Mr. Denton stated that it was his position that the excluded documents did not fall within the purview of KRS 61.878.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Wade, on behalf of the Department, provided this office with a response to the issues raised in the appeal. In this response, Ms. Wade reiterated the bases for denial set forth by the Department in its original denial.
The issue presented here is whether the Department's denial was consistent with the Open Records Act. For the reasons that follow, we find that denial was procedurally and substantively deficient insofar as it failed to comply with the procedural requirements of the Open Records Act.
KRS 61.880(1) provides, in relevant part, that:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In
Edmondson v Alig, Ky. App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals commented on the public agency's obligations under this provision when the agency believes that requested records are not subject to disclosure. At page 858 of that opinion, the court observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely comply with the requirements of the Act - much less . . . amount [] to substantial compliance.
Id. at 858 (emphasis added).
Thus, a public agency has a burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document(s) withheld. KRS 61.880(1).
Moreover, it has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the particular records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154; 93-ORD-67.
The Department, in its July 1, 1999 response, described the types and classes of records withheld and then stated the described records were exempt from public disclosure under KRS 61.878(1)(a),(c), (d), (i), (j) and (l) of the Act and KRE 503., without an explanation as to how the cited exceptions applied to particular records or class of records withheld. A generic determination that entire categories of records are excluded from the mandatory disclosure provisions of the Open Records Act does not satisfy the requirement of the Act. 97-ORD-41. We conclude the Department's denial was procedurally and substantively deficient in that its denial failed to state which cited exceptions applied to which documents or class of documents requested and to briefly explain how a cited exception applied to a particular record(s).
We do not suggest that the Department's reliance on (c), (d), (i), (j) and (l) of the Act and KRE 503 was completely misplaced, only that it failed to provide sufficiently particular and detailed information in its denial of Mr. Denton's request. While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in
Vaughn v Rogers, 484 F.2d 830 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that the Department is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore not excludable.
Accordingly, consistent with the principles articulated above, the instant appeal is remanded and the Department is directed to release all nonexempt records which satisfy Mr. Denton's request and to provide particularized justification for the withholding of any documents, or groups of documents, by indicating which exceptions apply to which records, and briefly explaining how the cited exceptions apply to the records withheld, as required by KRS 61.880(1).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.