Request By:
Ms. Nida Anderson
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Jeffrey Cohn, Manager of the Compliance and Actuarial Department for Universal Security Insurance Company, Boca Raton, Florida, has appealed to the Attorney General's Office pursuant to KRS 61.880 your denial of his request to inspect certain documents identified as all "Form Es" filed by motor carriers with the Transportation Cabinet in which Universal Security is the named insurer.
In a letter dated February 21, 1991, Mr. Cohn submitted his request to the Cabinet explaining that Universal Security had been sold to new owners and would no longer provide liability insurance to motor carriers. He indicated that the documents would be used to compile a list of motor carriers naming Universal Security as their insurer in order to expedite cancellation of existing policies and prevent the unauthorized issuance of new policies. The Transportation Cabinet denied Mr. Cohn's request on February 27, 1991, citing KRS 61.878(1)(b) in support of its decision to withhold the documents. It did not, however, offer any explanation as to how this statutory exception applies to the requested records. Mr. Cohn appealed the denial to this office.
OPINION OF THE ATTORNEY GENERAL
This office has previously stated that KRS 61.878(1)(b) does not authorize nondisclosure of "Form Es" filed by motor carriers with the Transportation Cabinet. OAG 89-75. (Copy enclosed.) We see no reason to depart from that view today. It is therefore, our opinion that your denial of Mr. Cohn's request was improper.
Chapter 281 of the Kentucky Revised Statutes requires motor carriers to file "Form E" with the Transportation Cabinet as evidence of financial responsibility. The information contained in "Form E," designated the Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance, 601 KAR 1:100, Appendix A, includes the name and home office address of the insurance company, the name and addresses of the motor carrier, and the policy number.
In denying inspection of these records, you relied on KRS 61.878(1)(b). Specifically, you stated that "Form E" is a record ". . . confidentially disclosed 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." That exception provides, in full:
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.]
As we observed in our earlier opinion, it is clear that "Form E" is not compiled and maintained by the Transportation Cabinet for scientific research. OAG 89-75. Nor is it disclosed to the Cabinet in conjunction with an application for a loan or the regulation of a commercial enterprise. Rather, the form is submitted to the Cabinet for the grant or review of a license to do business as a motor carrier. Only if disclosure of the information contained in "Form E" would permit an unfair advantage to competitors of the subject enterprise may the records be properly withheld.
In OAG 89-75, this office opined:
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.
Inasmuch as you have offered no explanation as to how release of the requested information would permit an unfair advantage to other motor carriers, and we can discern none, we must conclude that your denial of Mr. Cohn's request was improper.
It is therefore the opinion of the Attorney General that the records Mr. Cohn seeks to inspect are not exempt under KRS 61.878(1)(b) and must be made available for inspection. The Cabinet need not compile a list of motor carriers which have filed "Fore Es" naming Universal Security as their insurer if one is not already in existence, but must afford Mr. Cohn the opportunity to examine all non-exempt materials to secure the data with which he is concerned. OAG 86-52. Mr. Cohn is so advised by being sent a copy of this letter pursuant to KRS 61,880(2). The Cabinet may institute proceedings for injunctive or declaratory relief within 30 days in the circuit court of the district where the public records are maintained. KRS 61.880(5).
The Cabinet is cautioned, as it was in OAG 89-75, to carefully review the Open Records Act before drafting its response to requests for records. KRS 61.880(1) requires that an agency response denying inspection of any record include a statement of the specific exception authorizing the denial and ". . . a brief explanation of how the exception applies to the record withheld. " You again failed to comply with this provision in omitting the required explanation. It is imperative that future responses by the Transportation Cabinet conform to the Act, and if a denial is issued, an explanation should be provided.