Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Police violated the Open Records Act in denying an open records request submitted by Kentucky Employers' Mutual Insurance on February 10, 2010, for a copy of "[t]he Kentucky Uniform Police Traffic Collision Report, any and all accident reconstruction reports and/or photographs, . . . and any other supporting documentation relating to the accident" involving Lisa Elkins that occurred in Letcher County on December 29, 2009. In so holding, we are guided by the principles of statutory construction set forth in Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008), recognizing that "[w]e must interpret statutes as written, without adding any language to the statute." 1 It is the decision of this office that because KRS 189.635(5) 2 does not contain a modifier limiting insurers entitled to access to accident reports, KSP improperly added the term "automobile" to the language of the statute, thereby placing a restriction on access where none exists. Because its denial of KEMI's request was predicated on this error, the denial constituted a violation of the Open Records Act.
In its February 25, 2010, 3 response, KSP invoked KRS 189.635 advising KEMI that the "statute states that reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is a party to the accident, and the automobile insurers of any party who is the subject of the report, or to the attorneys of the parties." On this basis KSP asserted that KEMI was not "an entitled party as outlined in KRS 189.635 . . . ." In supplemental correspondence directed to this office after KEMI initiated this appeal, KSP acknowledged a lack of authority supporting this position, but maintained that the agency "thus far has interpreted the statute to limit the parties that may obtain these reports to automobile insurance providers only." We find no support in the law for this interpretation.
In Amelkin v. McClure, 330 F.3d 822, 829 (6th Cir. 2003), the Sixth Circuit Court of Appeals opined:
Protecting the privacy of accident victims is a legitimate state interest. By limiting disclosure of accident reports, § 189.635 rationally furthers that interest.
Neither the General Assembly in enacting, nor the federal courts in interpreting, KRS 189.635 intimated that the privacy interests of accident victims were more apt to be invaded by workers' compensation insurance carriers than by automobile insurance carriers. The language of the statute itself precludes such an interpretation:
All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (8) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties.
KRS 189.635(5) (emphasis added).
In Chestnut, above, the Kentucky Supreme Court rejected the Department of Corrections' attempt to read into an open records statute, KRS 61.872(2), a particularization requirement that did not exist in the statute, reasoning that "it is obvious that the General Assembly chose only to require the record [to be inspected under the Open Records Act] to be described. It did not add any modifiers like particularly described. " Chestnut at 661 (emphasis in original). With respect to KRS 189.635(5), the General Assembly chose to limit access to "insurers, " and did not add any modifiers like "automobile." In Chestnut, the Court recognized that it "lack[ed] the power to rewrite the open records act." Id. If the Kentucky Supreme Court lacks the power to rewrite a statute, it cannot reasonably be argued that KSP has the power to rewrite a statute.
In its original request and its letter of appeal, KEMI explained that it is "the workers' compensation insurance carrier for Ms. Elkins' employer, Key Broadcasting, Inc., who filed a claim on her behalf as a result of [the December 29, 2009, accident in which she was involved] inasmuch as it was believed to have occurred during the course and scope of her employment." Continuing, the agency observed:
KRS 342.340 requires Kentucky employers to obtain and keep workers' compensation insurance for the purpose of providing relief and compensation to employees when they are injured in the course and scope of their employment. As a provider of workers' compensation insurance, KEMI stands in the shoes of the policyholder employer for the purpose of compensating injured workers when they fall victim to a work related accident resulting in physical injury. And while the policyholder may or may not be a direct subject of the report, any employee operating within the scope of his or her employment and directly involved in the accident is the responsibility of the insured and subsequently, of KEMI. Thus, due to its responsibility as a designee of the employer for the medical care of the involved injured person(s), KEMI is therefore, qualified as an entitled party to obtain a copy of the report under KRS 189.635(5).
In closing, KEMI denied that its intended use of the requested report was a commercial one, indicating that it instead intended to use the report "to fulfill its duty to fully investigate the circumstances surrounding claims of injury in order to make a determination of claim compensability." KEMI asserted that "[a]s an insurer . . . with bona fide insurance business reasons to use the information contained . . . in accident reports," it meets the criteria found in KRS 189.635(5) and is entitled to copies of the reports. We agree. Based on the language of that statute, and the rules of statutory construction governing interpretation of that statute as articulated in Commonwealth v. Chestnut, above, we find that KSP violated the Open Records Act by relying on an erroneous interpretation of KRS 189.635(5) in denying KEMI's request.
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.
Amy G. GriffinEmily M. PerkinsRoger Wright
Footnotes
Footnotes
1 Citing Commonwealth v. Harrelson, 14 S.W.3d 541, 546 (Ky. 2000).
2 Incorporated into the Open Records Act by KRS 61.878(1)(l) which mandates nondisclosure of "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
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3 KSP offers no explanation for the delay in responding to KEMI's request. This, too, constituted a violation of the Open Records Act, specifically KRS 61.880(1), requiring written agency response within three business days of receipt of the request.
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