Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the responses of the Department of Insurance to the open records request of Artis Anderson violated the Open Records Act. We conclude the agency's responses did not violate the Act.
Mr. Anderson submitted an open records request to the Department for copies of the following records:
I hereby request a copy of all records in your office in re David L. Fulkerson and Countrywide Truck Insurance Agency, Inc. (CTIA), pursuant to Kentucky's Open Records statute--except those incorporated as exhibits into various courts' files involving your department and me, which I already have.
Of particular interest are application(s) for Certificate of Authority and financial responsibility filings.
If necessary, you may quote me a price.
Responding on behalf of the Department, Margaret L. Shreve, Paralegal, advised Mr. Anderson:
This letter acknowledges receipt of your correspondence, which was received in my office on November 28, 2001, wherein you have asked for copies of all records in our office pertaining to the above-referenced entities. Please be advised that the Department in unable to comply with your request. As you mention in your letter, you have copies of the documents of record in the various litigation files. The only other records in the litigation files are privileged documents that are the result of the Department's internal process of working on this matter. These records are considered work-product and are therefore not subject to the Open Records laws.
You have also requested certificates of authority for the above entities, as well as "financial responsibility filings." We have no listing in our database for Mr. Fulkerson as being an agent licensed in Kentucky, nor is there a listing for Countrywide Truck Insurance Agency, Inc. in our database. I also checked with the Secretary of State and they also show no company listed under the name of Countrywide Truck Insurance Agency, Inc.
After receipt of Mr. Anderson's letter of appeal, William J. Nold, Counsel for the Department, provided this office with a response to the issues raised in the appeal. In his response, Mr. Nold, in relevant part, advised:
Except for the specific request for any Certificates of Authority and financial responsibility filings, Mr. Anderson's request does not specifically identify the particular records requested.
The Department has no way of knowing what Mr. Anderson does or does not currently have in his possession or what Mr. Anderson means by "in re."
Upon receipt of the request, the Department searched its databases containing information regarding financial filings made by and Certificates of Authority issued to or applied for by David L. Fulkerson ("Fulkerson") and Countrywide Truck Insurance Agency, Inc. ("CTIA"). No records of these types were found that would have been responsive to Mr. Anderson's request.
The Department is in possession of other records that probably are "in re David L. Fulkerson and Countrywide Truck Insurance Agency, Inc." These additional records are contained in various litigation files currently maintained in the legal division of the Department. These files are being maintained in an active status and all involve legal proceedings filed by Mr. Anderson against the Department, various Commissioners of the Department, employees or former employees of the Department and also filed against other defendants including, in some cases, Fulkerson and CITA.
The various litigation files include the following types of records:
As previously indicated, Mr. Anderson should have most of the records and documents contained in these litigation files which occupy two full boxes. However, the department has no way of knowing what Mr. Anderson has and what he does not have. However, it would be the Department's position that the balance of the records (records he does not have) are clearly privileged as attorney work-product associated with on-going litigation.
We are asked to determine whether the responses of the Department violated the Open Records Act. For the reasons that follow, we conclude they did not.
We first address Mr. Anderson's request for copies of application(s) for Certificate of Authority and financial responsibility filings of David L. Fulkerson and Countrywide Truck Insurance Agency, Inc. (CTIA). The Department advised Mr. Anderson that it had searched its database and found no records of these types in response to his request. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which does not exist. 93-ORD-134. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the responses of the agency, in this regard, were in accord with the requirements of the Open Records Act.
Next we address Mr. Anderson's request for "all records in your office in re David L. Fulkerson and Countrywide Truck Insurance Agency, Inc. (CTIA), pursuant to Kentucky's Open Records statute--except those incorporated as exhibits into various courts' files involving your department and me, which I already have."
This is not a properly framed records request. KRS 61.872(2) requires a requester to "describe" the records he wishes to access by means of an on-site inspection. In construing this provision, the Attorney General has observed:
[A]lthough the purpose and intent of the Open Records Act is to permit "free and open examination of public . . .," this right of access is not absolute. [KRS 61.871.] As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81; OAG 91-58. Thus, in a series of opinions we have held that, in general, "[b]lanket requests for information on a particular subject without specifying certain documents need not be honored. " OAG 76-375; OAG 83-386; OAG 85-88; OAG 89-81; OAG 91-58.
95-ORD-108, p. 2, 3.
Moreover, in his request, Mr. Anderson stated to the Department that it could quote him a price for the copies, if necessary. This indicates that he wished to receive the requested records via mail. For requesters who wish to access public records by means of receipt of copies through the mail, KRS 61.872(3)(b) requires the requesters to "precisely describe" records which are "readily available within the agency." This language has been construed to require the requester to frame his request "in definite, specific and unequivocal terms . . . ." 97-ORD-46, p. 7.
Here, Mr. Anderson's request for "all records in your office in re David L. Fulkerson and Countrywide Truck Insurance Agency, Inc. (CTIA)," . . . "except those incorporated as exhibits into various courts' files involving your department and me, which I already have," does not "precisely describe" the records he seeks. 97-ORD-46. In addition, this office has previously criticized "open-ended-any-and-all records-that-relate-type of requests. 96-ORD-101; 99-ORD-14. In the latter decision, we recognized:
A request for any and all records that contain a name, a term, or a phrase is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 6.
Under the facts in this appeal, we conclude that Mr. Anderson failed to frame his request with sufficient precision to enable the Department to identify the records he was seeking. As a precondition to inspection, Mr. Anderson must identify with "reasonable particularity" those documents that he wishes to review. OAG 91-58. Accordingly, we find the Department's response to this portion of his request did not violate the Open Records Act.
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.