Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Jefferson County Clerk violated, or subverted the intent of, the Kentucky Open Records Act in the disposition of Alan S. Rubin's written request "for the insurance information, including policy number and contact number for the motor vehicle insurance on a 2000 Ford, Kentucky Registration No. 009GSW." More specifically, Mr. Rubin challenges the Clerk's imposition of a $ 2.00 fee to inspect records containing such information, which is justified in the Clerk's view given that "a level of creating and compiling information from the data" is required. Because KRS 186A.040(3)(b) expressly provides that such information is not subject to the Open Records Act, and is therefore controlling on the facts presented, the Clerk cannot be said to have violated the Act by imposing this otherwise improper fee. 1
By letter directed to Bobbie Holsclaw, Jefferson County Clerk, on June 4, 2009, Mr. Rubin supplemented his June 1 request, asking "to inspect and view insurance information" on the specified vehicle, and noting that he was "entitled to view the requested documents at no charge" under the Open Records Act. 2 Mr. Rubin did "not believe that the Open Records Act permits the charging of a fee unless copies of the records are to be made and then only in the amount of the actual cost to mechanically reproduce the record." 3 Accordingly, he clarified that he did "not need a copy" and only asked to inspect the records.
In a timely written response, Frank Friday, Director of Government & Community Affairs, advised Mr. Rubin that the records being sought "are 'exempt' records and therefore not available for routine searching by the public." Mr. Friday further asserted that "[u]nder [the Driver's Privacy Protection Act] 18 U.S.C[§]2721(b)(a) and KRS 61.878(1)(a) insurance information on specific vehicles is available to civil litigants on a permissive basis only." Although the Clerk's Office was "happy to provide such information if [Mr. Rubin] could describe it," Mr. Friday explained that the Clerk's Office does not "have this information in a [database] where it can simply be retrieved or retrieved and redacted. Instead, there is a level of creating and compiling information from the data, such that the [C]lerk's [O]ffice is entitled under the Open Records [L]aw to charge a reasonable fee for the effort, hence the $ 2." By letter dated June 10, 2009, Mr. Rubin initiated this appeal questioning whether imposition of such a fee is permissible under the Open Records Act. Although the answer to this question, as previously indicated, is clearly "no," the fact remains that KRS 186A.040(3)(b), the more specific provision, 4 dictates the result here.
Upon receiving notification of Mr. Rubin's appeal from this office, Terri A. Geraghty, Assistant Jefferson County Attorney, elaborated on the Clerk's position that "motor vehicle insurance data contained on the AVIS database is not subject to the provisions of the Kentucky Open Records Act and is exempt pursuant to KRS 61.878(1)(j) and KRS 186A.040(3)(b)." 5 As Ms. Geraghty explained:
Every insurance company that writes liability insurance on personal motor vehicles is required to provide to the Department of Vehicle Regulation the vehicle identification numbers (VINs) of each motor vehicle covered by liability insurance issued by the insurer [in accordance with KRS 304.39-087]. The Department of Vehicle Regulation provides the insurance information to the Commonwealth Office of Technology for inclusion in the AVIS database to assist in identifying uninsured motor vehicles. [See KRS 186A.040(1).]
Quoting the language of KRS 186A.040(3)(b), Ms. Geraghty further argued that "[i]nformation from the AVIS database is not subject to inspection under the Kentucky Open Records Act and can only be released if it qualifies for release under the provisions of the federal Driver's Privacy Protection Act (DPPA). [Footnote omitted.]" Under the federal act, a state department of motor vehicles must disclose information "in connection with matters of motor vehicle or driver safety and theft,["] and may disclose the information for fourteen enumerated uses set forth in the statute. "The Kentucky Transportation Cabinet, Division of Motor Vehicle Licensing Department and the Jefferson County Clerk's Office require a requester seeking information contained in the AVIS system to complete Form TC96-16 and submit a $ 2.00 fee with the completed form[, a copy of which Ms. Geraghty attached.]"
According to Ms. Geraghty, Mr. Rubin "would qualify for permissive release of the information under the [DPPA]" given that he is representing a client in potential litigation, and "information 'for use in connection with any civil, criminal, administrative, or arbitral proceeding in any federal, state or local court or agency . . . . including investigation in anticipation of litigation'" is one of the "permissible uses" listed in the DPPA. However, Mr. Rubin "would be required to complete the TC96-16 form indicating the reason for use. His sworn signature would serve as verification that the use of the information is only for the indicated purpose and that he takes full responsibility for any violation of the Act." Mr. Rubin would also "be required to submit the $ 2.00 fee with the completed form." As Ms. Geraghty correctly asserted, the required fee "is not in violation of any provisions of the Open Records Act since the Open Records Act does not apply to these records." In sum, there are "no statutory restrictions on the fee that can be charged by the [DOT] or the Jefferson County Clerk's Office for processing the request." Based upon the following, this office must agree.
Resolution of this appeal turns on the language of KRS 186A.040(3)(b), pursuant to which:
Notwithstanding any other provision of law, information obtained by the department pursuant to KRS 304.39-087 shall not be subject to the Kentucky Open Records Act, KRS 61.872 to 61.884, and shall not be disclosed, used, sold, accessed, utilized in any manner, or released by the department to any person, corporation, or state and local agency, except in response to a specific individual request for the information authorized pursuant to the federal Driver's Privacy Protection Act, 18 U.S.C. secs. 2721 et seq. The department shall institute measures to ensure that only authorized persons are permitted to access the information for the purposes specified by this section. Persons who knowingly release or disclose information from the database created by KRS 304.39-087 for a purpose other than those described as authorized by this section or to a person not entitled to receive it shall be guilty of a Class A misdemeanor for each release or disclosure.
(Emphasis added.) As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is not at liberty to add or subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not expressed. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997); see also KRS 446.080(4). "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962). When viewed in light of these fundamental principles, the mandatory language of KRS 186A.040(3)(b) validates entirely the position ultimately articulated on behalf of the Clerk.
Because the requested information is not subject to the Open Records Act, it logically follows that the Clerk cannot be said to have violated, or subverted the intent of, the provisions of the Act by imposing a fee of $ 2.00 for inspection of the information regardless of whether that action would otherwise be improper. To hold otherwise would circumvent the intent of the General Assembly as unambiguously expressed in the literal language of KRS 186A.040(3)(b). Further analysis is unwarranted.
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.
Distributed to:
Alan S. RubinBobbie HolsclawWilliam P. O'BrienTerri A. Geraghty
Footnotes
Footnotes
1 "Simply put, there is no authority for the imposition of fees for onsite inspection or 'self-access,'" in the Open Records Act; such a fee "constitutes a subversion of the intent of the Open Records Act, short of denial of inspection, within the meaning of KRS 61.880(4)." 07-ORD-013, p. 10 (copy attached).
2 Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. In OAG 89-45, this office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3 (citations omitted). In other words, the Clerk is not statutorily required to compile a list or create a record to satisfy a request submitted under the Open Records Act even if the records are not protected; however, the analysis would not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis).
3 In so arguing, Mr. Rubin implicitly relied uponKRS 61.874(3), pursuant to which:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
4 In Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997), the Kentucky Supreme Court reaffirmed the longstanding principle that when two statutes concern the same or a similar subject matter, "the specific shall prevail over the general."
5 Because KRS 186A.040(3)(b) is controlling, this office does not reach the question of whether the information would also be protected under KRS 61.878(1)(a) or (1)(j), the exceptions to the Open Records Act cited by Mr. Friday and Ms. Geraghty, respectively, or address the application of the DPPA, incorporated into the Open Records Act by operation of KRS 61.878(1)(k).