22-ORD-295
November 3, 2023
In re: Kim Whitley/Kentucky Department of Insurance
Summary:
The
Kentucky
Department
of
Insurance’s
(“the
Department”) initial response to a request to inspect records violated
the Open Records Act (“the Act”) because it failed to invoke
KRS 61.872(5), state whether requested records were in active use,
storage, or were not otherwise available, or give a detailed explanation
of the cause of delay. However, the Department’s delay of 30 days in
providing access to voluminous records, some of which were in storage,
was not unreasonable.
Open Records Decision
On September 19, 2023, Kim Whitley (“Appellant”) submitted a request to the
Department for copies of all “[q]uarterly dividends filed with the Kentucky
Department of Insurance regarding all health insurers from 2000-2023.” In a timely
response on September 26, the Department stated it was “complying” with the
request. However, it had identified over 1,000 potentially responsive records and,
“[b]ecause of the size of this production,” it required “an additional thirty (30) days to
properly review and redact” the requested records “to ensure that all confidential
information is redacted pursuant to KRS 304.2-250.” The Department did not explain
how KRS 304.2-250 may apply to the requested records. The Department further
stated the records would be made available on or before October 26, 2023, but claimed
to “expressly reserve[ ] its right to take an additional extension if needed.”
The next day, the Appellant replied to the Department’s initial response and
asked it to confirm the records would consist of “the quarterly dividends health
insurers pay out to shareholders” that have “to be approved by the Commissioner” of
the Department. She further asked the Department to specify what, if any, copying23-ORD-294
Page 2
fee would be charged. The Department immediately replied, informing the Appellant
the records would be provided electronically, free of charge, and would contain
“portions of quarterly financial statements for domestic health insurers and HMOS
that reflect the amount of dividends paid to shareholders each quarter.”
On October 5, the Appellant asked the Department “to cite the statute,
exemptions, and a legal basis for not providing all of the documents.” She also asked
the Department to “state a date for when the documents will be released” to her. The
next day, the Department replied and, for the first time, specifically cited
KRS 61.872(5) as authority for its delay. It further reiterated that the records would
be available on October 26, but it declined to “speculate” what exemptions would
apply to the records until it had time to review them all. The Appellant then initiated
this appeal, alleging the Department’s delay of 30 days to produce responsive records
was unreasonable.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request or deny it and explain why.
KRS 61.880(1). A public agency may also delay access to responsive records if they
are “in active use, storage, or not otherwise available.” KRS 61.872(5). A public
agency that invokes KRS 61.872(5) to delay access to responsive records must, within
five business days of receipt of the request, notify the requester of the earliest date
on which the records will be available and provide a detailed explanation for the cause
of the delay. Id.
Here, however, the Department’s initial response on September 26 did not cite
KRS 61.872(5), did not notify the Appellant whether the records were in active use,
storage, or were not otherwise available, and did not give a detailed explanation for
the cause of delay. Rather, the Department implied the records were not otherwise
available because the request implicated over 1,000 documents that it needed to
review and redact. While it may be true that records are “not otherwise available,”
within the meaning of KRS 61.872(5), if portions of them must be redacted to comply
with confidentiality laws, the “detailed explanation” that is required must include an
explanation of how those confidentiality laws actually apply to the records to be
redacted. Cf. KRS 61.880(1) (requiring any denial, even a partial denial, to include a
citation to the exception and a brief description of how it applies). As such, if the delay
will, in part, be caused by the need to redact exempt information, the agency must
explain how the exemptions delaying production apply to the records temporarily
withheld. But here, the Department refused to “speculate” about which exemptions23-ORD-294
Page 3
may be applicable, and failed to explain how the only exemption it cited, KRS 304.2-
250, might apply.
Moreover, the Department’s initial response also claimed to “reserve[ ] its right
to take an additional extension if necessary.” But the Act does not grant agencies a
“right” to “take an additional extension.” KRS 61.872(5) requires the agency to state
the earliest date on which the records will be available. The Office has previously
found an agency violates the Act when it fails to produce records by the date on which
it initially commits to produce records when invoking KRS 61.872(5). See, e.g., 21-
ORD-011. Thus, the Department’s initial response failed to properly invoke
KRS 61.872(5) and abide by its requirements.
Although the Department’s initial response attempted to hedge against its
duty to notify the Appellant of the earliest date on which records would be available,
it nevertheless produced the requested records on October 26.1 Thus, the only issue
remaining on appeal is whether the Department’s delay of 30 days was reasonable.
Under KRS 61.880(4), a person who feels the intent of the Act has been
subverted, short of denial, may seek the Attorney General’s review. Such violations
include “delay past the five (5) day period described in [KRS 61.880(1) and] excessive
extensions of time.” Id. Given that a public agency may delay access to records beyond
five business days if it provides the requester the earliest date on which records will
be available and a detailed explanation for the cause of delay, KRS 61.872(5), this
Office has recognized that the length of delay is a question of reasonableness in light
of the request at issue and the agency’s explanations. See, e.g., 22-ORD-176. In
determining whether a delay is reasonable, this Office has previously considered the
number, location, and content of the records. See, e.g., 01-ORD-140; OAG 92-117. In
this analysis, the content of the records may be relevant if the records contain both
exempt and nonexempt information because the law governing the confidentiality of
the records is also an important factor. Id. Some laws require confidentiality, and can
carry consequences for public agencies that fail to adhere to strict confidentiality.
Others do not. Compare 20 U.S.C. § 1232g (tying continued federal funding to
confidentiality compliance) with KRS 61.878(1)(a) (exempting personally private
information from inspection, but imposing no consequences for the failure to protect
that information).2 Weighing these factors is a fact-intensive inquiry. Some delays
1
However, the Appellant has had difficulty opening the electronic file the Department sent to her.
The Department has since mailed the responsive records to her on a CD.
2
Consider also the attorney-client privilege, KRE 503, which is incorporated into the Act by
KRS 61.878(1)(l). Although there may be no loss of federal funding because of an inadvertent23-ORD-294
Page 4
are warranted. See, e.g., 12-ORD-097 (finding a six-month delay to review over 22,000
emails to be reasonable). Some delays are not. See, e.g., 01-ORD-140 (finding a two-
week delay to produce three documents to be unreasonable). At all times, however, a
public agency must substantiate the need for any delay and that it is acting in good
faith. See KRS 61.880(2)(c) (placing the burden on the public agency to substantiate
its actions).
On appeal, the Department argues its delay was reasonable because the
request implicated “approximately 1,000 responsive files” and it later determined
that responsive records from 2000 to 2005 were in storage with the Kentucky
Department for Library and Archives.3 The Department also claims it was required
to redact from the files information that is exempt under KRS 304.2-250(3) and
KRS 304.2-270. Moreover, for the first time, the Department now claims
KRS 61.878(1)(c)1. also applies to some of the records withheld. Because the request
implicated nearly 1,000 records, some of which were in storage, and each were
required to be reviewed for confidential business information that may be prohibited
to disclose under the cited exemptions, the Office does not find the Department’s
delay of 30 days to be unreasonable.4
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
disclosure of privileged material, such disclosure could result in tremendous disadvantage to a public
agency engaged in litigation.
3
Ultimately, the Department produced 938 files in PDF format.
4
In reaching this determination, the Office expresses no opinion as to whether the claimed
exemptions actually apply to the information the Department has withheld. Indeed, at no point during
this appeal has the Department actually explained how any of the claimed exemptions apply. As such,
the Department has fallen woefully short of its burden under KRS 61.880(2)(c). But the Office also
recognizes that these records could indeed potentially contain confidential business information. The
Office declines to hold that the records are subject to inspection simply because of the Department’s
disregard of its responsibility under the Act. Such a result could harm the insurers who have had no
role in the Department’s failure to comply with the Act’s requirements. The only issue presently before
the Office is whether a delay of 30 days was reasonable, and under the totality of the circumstances,
the Office finds that it was. The Appellant is free to challenge the Department’s claimed exemptions
after she is able to actually review the records, which likely will not be in her possession until shortly
before this decision is rendered.23-ORD-294
Page 5
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#445
Distributed to:
Kim Whitley
John N. Evans