Request By:
Patrick Watts, Esq.
General Counsel
Department of Insurance
P.O. Box 517
Frankfort, Kentucky 40602
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Charles D. Greenwell, Esq., has appealed to the Attorney General Pursuant to KRS 61.880 your denial of his request to inspect and have copies furnished of various documents in your Department's custody. The records in question pertain to complaint files concerning claims' settlement practices for disability insurance policies issued by the Ohio Casualty Insurance Company and complaint files concerning similar policies in which the Tobin Insurance Agency acted as the agent. Mr. Greenwell requested those files dated from January 1, 1983, through the present. He does not object to the elimination of the names of the complaining parties and he is not requesting active investigative files.
In your letter to Mr. Greenwell, dated July 10, 1986, you advised him that the Open Records Law does not require your Department to compile information which has not already been compiled. While you may have some statistical information accumulated in your computer, individual complaints are numbered sequentially as received and are not compiled on an insurer-by-insurer or agency-by-agency basis. You noted that all investigative files of the Department are closed records and you cited KRS 304.2-150(3) in support of your statement. You also stated that the Department receives six thousand to eight thousand complaints a year and it would be unduly burdensome to have to search for the complaints with which Mr. Greenwell is concerned.
In his letter of appeal to this office Mr. Greenwell responds to your allegation that to search for the material requested would be unduly burdensome by citing KRS 304.2-160. That statute relates to the keeping and filing of complaints received by the Department. He further states that he seeks statistical data and he is not concerned with the names of complainants or active investigative files. He also maintains that under KRS 61.872(5) the Department must show by clear and convincing evidence why the closed complaints should remain confidential.
OPINION OF THE ATTORNEY GENERAL
KRS 61.872(5) provides as follows:
"If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence. "
Two other subsections of KRS 61.872 need to be considered at this point. KRS 61.872(1) states in part that all public records shall be open for inspection by any person, except as otherwise provided by the Open Records Act, with suitable facilities being made available by the public agency for the inspection process. KRS 61.872(2) provides that any person shall have the right to inspect public records during the public agency's regular office hours.
Two sections of the Insurance Code have been cited by the parties to this appeal. While KRS 304.2-150(3) was amended by the 1986 General Assembly, effective July 15, 1986, the version of that provision in effect when this open records request was initiated reads as follows:
"All records of the Department shall be open to public inspection except as otherwise expressly provided by law as to particular matters; and except that records, correspondence, and reports of investigation in connection with actual or claimed violations of this code or prosecution or disciplinary action therefor shall be confidential. The confidential nature of any such record, correspondence or report shall not, however, limit or affect use of the same by the commissioner in any such prosecution or action."
KRS 304.2-160 states as follows:
"Each written and signed complaint received by the Department of Insurance shall be recorded by the Department, including the subsequent disposition thereof, and maintained for a period of not less than five (5) years. The records of such complaints shall be indexed whenever applicable both by the name of the insurer and by the name of the agent, solicitor, surplus lines broker, adjuster or consultant involved. The commissioner shall consider such complaints before issuing or renewing any certificate of authority or license."
A section of the Open Records Act not cited by either party, but which has a bearing on this appeal, is KRS 61.878(3) 1 which provides:
"If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
In OAG 81-198 we dealt with a request to inspect records described in part as those pertaining to fines levied against coal companies over a five year period. The requesting party was not requesting public employees to make any compilation of records. He merely requested to inspect public documents during regular office hours which contained the information requested.
At page five of OAG 81-198 we said that the public agency's denial of the request and its reliance upon KRS 61.872(5) in support of its denial were improper. That particular request, within the context of the factual situation presented, did not place an unreasonable burden on the public agency in producing voluminous public records.
In connection with requests for information and the compilation of lists we direct your attention to OAG 81-333, copy enclosed, at page three, where we said:
"In OAG 79-547 we discussed the difference between a request for information and a request for inspection of records and said: 'The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law.' And in OAG 76-375 we said it is not necessary for an agency to make a list of items from its records if such a list does not already exist. When an agency has compiled statistics, the documents containing the statistics should be made available for public inspection and copying; but if no such compilation has been made, a requester cannot require the agency to make one."
KRS 304.2-150(3) refers in part to the confidentiality of records, correspondence and reports of investigation pertaining to actual or claimed violations of the code or prosecution or disciplinary action. The confidentiality of such material, in our opinion, is not absolute but limited to that period of time during which the matter involving such documents is being investigated, prosecuted or adjudicated administratively. Once the matter has been concluded relative to the agent or company involved, such records would be subject to public inspection unless exempted by some other specific provision of the Insurance Code or the Open Records Act. This interpretation would be consistent with KRS 61.878(1)(f) of the Open Records Act.
KRS 304.2-160 sets forth the procedures the Department of Insurance is required to follow relative to the handling, filing, recording and indexing of complaints. While it is not the function of this office, within the context of an appeal under the Open Records Act, to make a determination relative to the Department's compliance with KRS 304.2-160, it would seem that if the statutory procedures are followed access to the documents containing the information with which Mr. Greenwell is concerned should be an attainable objective.
KRS 61.878(3) requires a public agency to separate the exempt material from the nonexempt material and make the nonexempt material available for public inspection. Thus, if in the search of public documents the requesting party comes across documents containing some material which may legally be exempted from public inspection, the public agency will have to separate that material from the material which may be inspected.
If a list containing the requested statistical data has been compiled by the Department that list should be made available for public inspection. However, such a list need not be compiled merely to satisfy a request for information and documents made under the Open Records Act. Where a person requests that a list of data be supplied or that he be furnished with broad categories of information, that person should be afforded the opportunity to expend his own time and effort to dig out the data which has not to date been compiled, unless that information may be excluded from inspection under KRS 61.878 or the Insurance Code. Thus, if the data requested, although not compiled in any kind of a list form, is nevertheless in the possession of the Department, the files or computer tapes containing that data should be made available for public inspection, even where exempt and nonexempt material are mixed together, in order that the requesting party may attempt to secure the data with which he is concerned.
It is therefore the opinion of the Attorney General that the Department's denial of the request for data was proper to the extent that the Department declined to prepare and furnish a list of data which at the time did not exist. The Department violated the Open Records Act to the extent that its response stated that the requesting party would not be afforded the opportunity of examining otherwise nonexempt material to attempt to secure the data with which he is concerned.
As required by statute a copy of this opinion is being sent to the requesting party, Charles D. Greenwell, Esq. Either of the parties to this appeal has the right to challenge this opinion in circuit court pursuant to KRS 61.880(5).
Footnotes
Footnotes
1 This section appears as KRS 61.878(4), effective July 15, 1986, but since this matter was initiated prior to that date the old citation is used.