Request By:
Mr. Roger Cole
Transportation Cabinet
State Office Building
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Mr. Ted R. Brown has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect selected "Form E's" filed by motor carriers with the Transportation Cabinet.
Mr. Brown requested to inspect copies of said documents by letter dated December 20, 1988. You denied this request by letter dated January 5, 1989, citing KRS 61.878(1)(b) as the specific statutory exception authorizing the withholding of the records. No explanation was offered on how the specific statutory exception applied to the records withheld. Mr. Brown requested the Attorney General to review this denial by letter dated March 29, 1989.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue of whether the records in question were properly withheld, we direct your attention to KRS 61.880(1) in regard to your letter of denial dated January 5, 1989. This statute provides in part as follows:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
Your letter gave no explanation of how KRS 61.878(1)(b) applied to the records withheld, but merely recited a portion of the statutory exception. In the future, any response by the Transportation Cabinet denying inspection of any public record should adhere to the requirements set forth in KRS 61.880(1) and explain how all statutory exceptions apply to the specific situation.
Mr. Brown requested to inspect selected "Form E's" of motor carriers on file with the Transportation Cabinet. This "Form E" is required to be filed with the Transportation Cabinet by motor carriers pursuant to KRS Chapter 281 in order to provide evidence of insurance. This certificate of bodily injury and property damage insurance is required to be in the form shown in Appendix A set forth at 601 KAR 1:100. The information contained in said certificate includes the name and home office address of the insurance company (the insurer), the name and address of the motor carrier (the insured), the effective date of the insurance policy, and the insurance company policy or file number.
The statutory exception upon which you relied in denying inspection of the records provides as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction: . . . Records confidentially disclosed to an agency and compiled and maintained for scientific research, in conjunction with an application for a loan, the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person and which are generally recognized as confidential, or for the grant or review of a license to do business and if openly disclosed would permit an unfair advantage to competitors of the subject enterprise. This exemption shall not, however, apply to records the disclosure or publication of which is directed by another statute.
KRS 61.878(1)(b). [Emphasis added.]
It is apparent that the records (Form E's) disclosed to the Transportation Cabinet are not compiled and maintained for scientific research. This information is disclosed to the Transportation Cabinet for the grant or review of a license or certificate to do business as a motor carrier. Therefore, if these records would permit an unfair advantage to competitors of the subject enterprise, then it is permissible for the Transportation Cabinet to refuse inspection.
Resolution of this issue hinges upon interpretation of the phrase "subject enterprise." This office holds that "subject enterprise" in the instant case refers to motor carriers seeking to be granted a license or certificate to do business in Kentucky. It does not refer to third parties such as insurance companies which may provide insurance coverage for motor carriers. Your letter provided no explanation of how release of this information would provide an unfair advantage to other motor carriers and this office cannot discern any unfair advantage to other motor carriers by the release of this information.
It is therefore the opinion of the Attorney General that the records sought for inspection by Mr. Brown are not exempt under the provisions cited in your letter of denial and must be made available for inspection. The Transportation Cabinet may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public records are maintained pursuant to KRS 61.880(5).