Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Cody W. Duvall initiated this appeal challenging the partial denial by the Kentucky State Police (KSP) of his May 20, 2015, request for "a copy of the accident history for Tamberly A. Tannehill, date of birth September 1, 1961." Mr. Duvall provided Ms. Tannehill's maiden name and requested that KSP "include in the records the accident report for any and all accidents that involved Ms. Tannehill." By letter dated May 26, 2015, KSP first advised Mr. Duvall, per KRS 61.872(5), that "driver history reports are created, possessed, and maintained by the Transportation Cabinet Division of Driver Licensing. Any request for those records should be submitted to that agency." KSP then denied Mr. Duvall's request on the basis of KRS 189.635, incorporated into the Open Records Act per KRS 61.878(1)(l), explaining that neither he nor his firm was authorized to receive such records under the limited exceptions outlined in that confidentiality provision.
Mr. Duvall subsequently advised that his firm represents Joel Latto and OPS Plus, Inc.; each is a party to a civil action filed in Jefferson Circuit Court by Ms. Tannehill regarding an April 15, 2011, motor vehicle accident (MVA). "Without limiting the search," Mr. Duvall continued, "we have some information that one accident occurred in 2014 and another a few years prior to 2009." Under KRS 189.635(1), KSP "is charged with maintaining a reporting system for all vehicle accidents." Citing KRS 189.635(9), Mr. Duvall reiterated his original request, enclosing a copy of the complaint Ms. Tannehill filed against both of his clients per the mandatory language of that subsection. According to Mr. Duvall, "the statute does not restrict my request to just the accident report in which my clients are a party as prior or subsequent auto accidents that she may have been involved in are relevant to her claim for damages and our defense of that claim." By letter dated June 3, 2015, KSP advised that KRS 189.635(9) "would allow only for a copy of the accident report giving rise to the civil action to be released, as your client was not a party to any other collisions Ms. Tannehill may have been involved in." Accordingly, KSP otherwise denied his request in accordance with KRS 189.635(9) and 61.878(1)(l). The only mechanism by which KSP is authorized to provide "any and all accident reports pertaining to any subject," it maintained, "is by service of subpoena duces tecum."
On appeal Mr. Duvall reiterated his position that KSP interpreted KRS 189.635(9) too narrowly, again citing the relevance of prior and subsequent accidents to Ms. Tannehill's claim for damages and his clients' defense of that claim. Upon receiving notification of Mr. Duvall's appeal from this office, KSP elaborated upon its position as follows:
Accident reports are made confidential, as opposed to public, records by KRS 189.635(5), which states in relevant part that "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 6.1872 to 61.884 and shall remain confidential. ..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 subsection. 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." (Emphasis added.) Clearly, the plain language contained in the statute, "the report," indicates that the accident report giving rise to the underlying litigation may be obtained, without a subpoena, by a party to the litigation. However, the statute also allowed, as directed in subsection (5), for disclosure of accident reports or information when produced pursuant to a properly executed subpoena or court order.
Because Mr. Duvall's clients were not parties to any other collisions involving the subject of the reports in dispute, KSP reasoned, he was correctly advised that KSP would only release a copy of the report that is the subject of the litigation and that any other accident reports would only be provided upon receipt of a properly executed subpoena per KRS 189.635(5).
In reply, Mr. Duvall maintained that, "The language of KRS 189.635(9) does not limit a party's request for the accident history of another party solely to the accident report that underlies the litigation. KSP emphasizes the use of the phrase 'the report' in the statute, and defines it to mean that accident report which is the basis for the present litigation." However, Mr. Duvall "reads the phrase 'the report' to mean the report or reports related to the litigation and requested by a party to the litigation. The statute's requirement that the party provide a copy of a District or Circuit Court clerk-stamped complaint naming the parties to the present suit supports this conclusion." The statutorily required complaint, in his view, "provides a basis for searching the KSP records for the accident reports using an individual's name, as that individual is a party to litigation." Additionally, the statute provides "that the accident report will be made available '...to any party to litigation...' This section lacks any language that limits the request to only the accident report giving rise to the litigation. For example, the statute does not read as '...to any party to litigation arising from the accident..." (Original emphasis.) Mr. Duvall further observed that "[t]he intent of KRS 189.635(5) is to maintain the privacy of the individuals involved in an accident and the related report." His clients have a "legitimate personal interest in all Kentucky accident reports of Mrs. Tannehill so that other potential injuries may be discovered. The intent of KRS 189.635(9) is to provide the parties in litigation, such as [his], a means of obtaining the accident report without use of the subpoena power."
This office respectfully disagrees. Although reports pertaining to prior and subsequent accidents involving Ms. Tannehill might very well be relevant for purposes of the underlying litigation, that is not the relevant inquiry. The plain language of KRS 189.635 does not support Mr. Duvall's interpretation of subsection (9) notwithstanding the legitimacy of his clients' interest, which is adequately served when prior and subsequent accident reports are produced in accordance with a properly executed subpoena or court order.
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, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In discharging this duty, the Attorney General is not at liberty to add or subtract from the legislative enactment or "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, 35 S.W.3d 831, 835 (Ky. App. 2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4). Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). When viewed in context, and in light of these fundamental principles, the "interpretation by KSP, though not necessarily dispositive, is more than reasonable and thus entitled, at a minimum, to deference in the absence of statutory or judicial authority to the contrary, none of which has been cited or independently located here." 1 11-ORD-168, p. 9. (Original emphasis.) See 11-ORD-155.
Among those records excluded from application of the Open Records Act by operation of KRS 61.878(1) are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l). Resolution of this appeal turns on the application of KRS 189.635, subsection (1) of which provides that, "The Justice and Public Safety Cabinet, Department of Kentucky State Police, shall be responsible for maintaining a reporting system for all vehicle accidents which occur within the Commonwealth...." 2 In relevant part, KRS 189.635 further provides:
(5) 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.
(9) The report shall be made available without subpoena to any party to litigation who files with the department a request for the report and includes a copy of the first page of a District or Circuit Court clerk-stamped complaint naming all parties.
In construing KRS 189.635, this office has observed:
KRS 189.635(5), in tandem with KRS 61.878(1)(l) , requires that a public agency deny a request for copies of accident reports not submitted by parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys for the parties, and news gathering organizations "solely for the purpose of publishing or broadcasting the news." KRS 189.635(8). This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act.
02-ORD-155, p. 4; 06-ORD-024 (KRS 189.635 does not permit disclosure of the accident report just because the vehicle involved in the accident is a city vehicle being driven by a city employee nor "does it permit disclosure based on the requester's goals and intended use"). It recognizes only the specifically enumerated exceptions found in the concluding sentence of KRS 189.635(5) and in KRS 189.635(8) with regard to "all other accident reports."
The Office of the Attorney General has not previously had occasion to address the narrow question presented here. Nevertheless, prior decisions by this office construing KRS 189.635 further validate our conclusion. For instance, in affirming the denial of a request by the attorney representing Accident Injury Medical Centers for all of the accident reports generated in a certain period, this office held that the Somerset Police Department could "rely on KRS 189.635(5) as the basis for denying any request for accident reports not submitted by the parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys of the parties, and news gathering organizations 'solely for the purpose of publishing or broadcasting the news.' KRS 189.635[(8), then codified as (6)]." 01-ORD-127, p. 5. Likewise, in 03-ORD-188 this office found that KSP had properly relied on KRS 189.635(5) as the basis for denying the request for accident reports filed in the Madisonville Post during a specific period of time inasmuch as he did not fall within any of the categories identified at subsection (5) nor did he fall within subsection (8). "Whatever the [requester's] intended use of the accident reports" that were requested in 13-ORD-019, this office again recognized that with only the noted exceptions "KRS 189.635 erects a barrier to disclosure. " Id., p. 5. The requester in 13-ORD-147, as the attorney for a party to a specific MVA, was entitled to a copy of the accident report concerning that particular collision pursuant to KRS 189.635(5), just as Mr. Duvall was here.
This office has consistently deferred to agencies' reasonable interpretations of confidentiality provisions binding upon them absent legal authority to the contrary. 97-ORD-33 (deferring to Department of Corrections regarding interpretation of KRS 197.025(1)); 04-ORD-252 (deferring to Department of Workers' Claims regarding interpretation of KRS 342.229); 10-ORD-080 (deferring to Cabinet for Health and Family Services regarding interpretation of KRS 209.140 absent contrary legal authority) ; 11-ORD-168 (adopting interpretation by Kentucky State Police of statutory language codified at KRS 237.110(10) absent contrary legal authority) ; 14-ORD-025 (finding "no reason in this case to depart from our general rule of deference to a public agency in the interpretation of confidentiality provisions binding upon it, in the absence of contrary authority"); see also 98-ORD-78; 08-ORD-177; 09-ORD-058. Compare 11-ORD-028 (rejecting blanket denial by Retirement Systems of request for documents verifying the eligibility of local officials to participate in retirement systems based on the unsupported claim that disclosure of responsive documents would create a "substantial likelihood of member identification"); 11-ORD-049.
"Even if no deference was required or appropriate under this line of authority," the position of KSP regarding application of KRS 189.635, "and in particular the interpretation of the critical phrase ['accident report' ] set forth by the agency in this case is entirely persuasive and effectively reflects our independent assessment." 11-ORD-168, p. 9; compare 08-ORD-245. The General Assembly employed the singular term "report" in subsection (9) of KRS 189.635, providing that, " The report shall be made available without subpoena to any party to litigation" who requests " the report " and includes a copy of the complaint (again singular) naming all parties. (Original emphasis.) The most logical reading of KRS 189.645(9), in light of the overall statutory scheme, and given the consistent use of the singular term "report," as well as use of the singular term "complaint," reflects a legislative intent to ensure that parties to a particular accident, which is the subject of the report which, in turn, formed the basis for the underlying litigation, have the ability to access the report without a subpoena. See OAG 12-012 (noting that KRS 91A.390(3) "begins by referring to 'this tax,' and later refers to 'proceeds of the tax,' both singular terms, indicating that only the transient room tax created in that section was intended").
In contrast, subsection (5) uses the plural term "reports" in stating that "all other accident reports ," except as provided in subsection (9), "shall be confidential and exempt. " Said 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 insurers or their written designee of any party "who is the subject of the report ," to attorneys of the parties (again referring to the accident to which the report pertains). (Emphasis added.) If the General Assembly had intended for subsection (9) to ensure that a party to a MVA which is the subject of litigation could access not only the accident report which resulted in the litigation without a subpoena, but all prior and subsequent accident reports of the opposing party, it would have said as much. Further, the interpretation of KSP is more consistent with the overall intent or purpose of KRS 189.635 - protecting the privacy of accident victims. Amelkin at 824. The disposition of Mr. Duvall's request for the "accident history" of Ms. Tannehill is affirmed in accordance with KRS 189.635(5), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
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