Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the actions of the Madison County Clerk and the Kentucky Transportation Cabinet relative to two separate, but similar open record requests. Because the same issue is raised in both appeals, we will consider both in one decision.
On July 6, 1999, Mr. Harrison sent an open records request to the Madison County Clerk, requesting:
A copy of any notification to your office from the Department of Vehicle Regulation concerning any expiration of insurance of James Reves' 1989 or 1990 Blue Plymouth Caravan. Madison County License Plate No. 161-EPE during the months of March, April and/or May, 1999.
Also on July 6, 1999, Mr. Harrison sent a similar request to the Cabinet, requesting:
A copy of any notification to the Department of Vehicle Regulation from any of James Reves' insurance companies of any expiration of insurance on a 1989 or 1990 Blue Plymouth Caravan. Madison County License Plate No. 161-EPE during the months of March, April and/or May, 1999.
In his letter of appeal, dated July 27, 1999, Mr. Harrison states that, as of that date, he had not received a response to his requests from either agency.
After receipt of Mr. Harrison's letter, we sent a "Notification to Agency of Receipt of Open Records Appeal" to each agency. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, both agencies provided this office with a response to the issues raised in the letter of appeal.
Responding on behalf of the Madison County Clerk's office, Mary Jane Ginter, Clerk, stated:
On or about July 12, 1999, we received a letter requesting insurance information on James Reyes' 1990 Plymouth Voyager. We answered by return mail that we had not received any correspondence from the Department of Motor Vehicles Regulations concerning expiration of insurance on James Reyes during the months of March, April, or May, 1999.
Furthermore, if information had been received by our office, Mr. Reyes would have to make the request for a copy, not Mr. Harrison. The letter that was sent to Mr. Harrison was not returned to our office as undeliverable, therefore I thought he had received my response.
Responding on behalf of the Cabinet, J. Todd Shipp, Assistant General Counsel and Legislative Affairs, advised that a thorough search of the offices of Ed Roberts, Commissioner, Department of Administrative Services and Ed Logsdon, Commissioner, Department of Vehicle Regulation, showed no record of Mr. Harrison's request.
After this office forwarded a copy of Mr. Harrison's original July 6, 1999 request, which had been enclosed with his letter of appeal, Mr. Shipp submitted a substantive response to the request, with a copy to Mr. Harrison. In this response, Mr. Shipp, stated:
Pursuant to KRS 61.878(1)(a) this Cabinet will deny his request. The public records sought will contain information of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of personal privacy. Also pursuant to the Federal Driver's Privacy Protection Act and KRS 61.878(1)(l) this Cabinet must respectfully deny this request as well.
Mr. Harrison submitted a reply to Mr. Shipp's substantive response, stating that the Federal Driver's Privacy Protection Act does not include withholding personal information on vehicular accidents, driving violations, and driver status. He indicated that the requested records were to verify the driver's status in reference to an enclosed accident report.
Responding to this submission, Mr. Shipp stated that the Cabinet could not determine whether Mr. Harrison was requesting information on the driving violations and driver status of James Reyes or whether he was looking for an actual letter from an insurance company indicating Mr. Reyes' car insurance had lapsed. Addressing Mr. Harrison's assertion regarding the Federal Driver's Privacy Protection Act, Mr. Shipp stated:
Contrary to what Mr. Harrison may think the Federal Driver's Privacy Protection Act (DPPA) does most certainly apply when the record sought does contain information of a personal nature. In this case it will have personally identifiable information unique to Mr. Reyes. This agency cannot avoid our responsibilities respecting privacy concerns just because Mr. Harrison obtained the accident report. Thus, KRS 61.878(1)(a), KRS 61.878(1)(k) and DPPA is clearly applicable and this Cabinet has met its burden of proof.
If Mr. Harrison is looking for driver's status and driving violation this can be obtained through a driver's history record. KRS 186A.018(3) authorizes the release of the same for a fee of $ 3.00. This can be obtained through of Commissioner Ed Roberts, Division of Administrative Services, Transportation Cabinet. If Mr. Reyes' insurance lapsed and he was convicted it will be noted on this document.
We are asked to determine whether the responses of the Madison County Clerk and the Transportation Cabinet were consistent with the Open Records Act. For the reasons that follow, we conclude the respective responses were in substantial compliance with the Act and prior decisions of this office.
Beginning with the Madison County Clerk's response, the Clerk indicated that she had notified Mr. Harrison that no correspondence had been received from the Department of Motor Vehicles Regulations concerning expiration of Mr. Reyes' insurance. Obviously, a public agency cannot afford a requester access to records which do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. The Madison County Clerk fully discharged this duty.
Addressing next the Cabinet's responses, we conclude the agency properly relied upon the Drivers' Privacy Protection Act and KRS 61.878(1)(k) in denying Mr. Harrison's request. In 98-ORD-1, this office recognized:
The Drivers' Privacy Protection Act "prohibits the release and use of certain personal information from state motor vehicle records." 18 U.S.C. § 2721 et seq. "Personal information" is defined as "information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." 18 U.S.C. § 2725(3).
Accordingly, we conclude the Cabinet properly denied the request for state motor vehicle records which contained personal information. Moreover, although the precise information Mr. Harrison was seeking was unclear to the Cabinet, it further advised him that, if the information he was seeking was the driver's status and driving violation, this could be obtained through a driver's history record. The Cabinet notified Mr. Harrison that such a request for those records should be made to Commissioner Ed Roberts, Division of Administrative Services, Transportation Cabinet. We conclude the Cabinet substantially complied with the requirements of KRS 61.872(4) by notifying Mr. Harrison where these records might be obtained.
In its initial response to the letter of appeal, the Cabinet indicated that it had been unable to find any record of Mr. Harrison's open records request, dated July 6, 1999. We have no reason to doubt the agency's statement. In light of the Cabinet's prompt substantive response after receipt of a copy of the request, we find no procedural violation.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to 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.