Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Office of Workers' Claims violated the Kentucky Open Records Act in declining to provide Eileen M. O'Brien with a copy of "the actuarial model developed by Jeffrey Kadison and/or Practical Actuarial Solutions, Inc. as implemented by the Office of Workers' Claims," to which her client, Massey Coal Services, Inc., was previously granted access, in electronic format, and in partially denying the related but separate request for "[a]ll documents reflecting the actual surety levels for all other self-insured companies in the Commonwealth of Kentucky for the past three (3) years." In accordance with KRS 61.874(2), the OWC must provide Massey with a copy of the model itself in electronic format (minus the protected underlying information aside from that relating to Massey) since the model was created by or for the OWC, inspection has been permitted, and it has the capability; however, the OWC properly withheld the requested financial information on the basis of KRS 61.878(1)(c)1. because private entities are statutorily required to disclose such confidential information and the OWC has amply demonstrated that disclosure would permit an unfair commercial advantage to competitors of those entities.
By letter directed to William P. Emrick, Executive Director, OWC, on October 16, 2006, Ms. O'Brien requested "copies of the following materials within the care, custody and control of the Cabinet in the [OWC]":
2. I have previously responded that we have not found documents at the [OWC] relating to communications with Kadison discussing the method for reserving medicals. We know of no other documents except what has been previously provided between [OWC] and Mr. Kadison.
3. The amount of surety for other self-insureds is proprietary and will not be provided pursuant to KRS 61.878 [(1)](c)1. Each individual self-insured has a specific surety amount set based on circumstances and information derived from each individual employer. The information could be used for a competitive advantage and cannot be provided by our agency.
In a letter dated February 7, 2007, Ms. O'Brien initiated this appeal on behalf of Massey, 1 arguing that "neither the actuarial model produced for the OWC by an outside consultant nor the surety amounts set by the OWC for other self-insured companies qualify as 'proprietary information' shielded from disclosure by KRS 61.878(1)(c)1."; Massey further contends that inspection of material which cannot be copied "and which is by its nature an interactive tool is insufficient to meet the requirements of KRS 61.872," 2 so the OWC should be "required to make the material/tool itself available in electronic format. " More specifically, Massey asserts the model is not protected for the following reasons:
In performing the statutory duty of assessing surety amounts for self-insured companies doing business within the Commonwealth, the Executive Director of the [OWC] determined to utilize an actuarial model which would be applied to information supplied to the OWC by those self-insured companies. OWC contracted with an outside consultant, Jeffrey Kadison of Practical Actuarial Solutions, Inc., to draft this actuarial model. The model itself is a spreadsheet into which data is fed and from which a proposed assessment for OWC's use is produced. The model is an interactive tool for use by the OWC, and as noted in the OWC's response (Exhibit B), "cannot be reduced to a copy,..." The OWC's offer to allow "inspection" of the material is inadequate and violates the purpose of the Open Records Act. This material cannot be "inspected" for the same reason the OWC acknowledges that it cannot be reduced to a copy - the data is in digital format and not subject to copying or inspection simply by viewing. Electronic material should be made available in electronic format to satisfy the requirements of the Act.
Citing case law from another jurisdiction, Massey reiterates that when public records "consist of digital or similarly stored data, and particularly when that data is interactive and applied by an agency, then the data should be made available upon proper request in electronic form." In arguing that the "material itself is not proprietary and cannot be withheld" on that basis, Massey relies upon the language of KRS 61.878(1)(c)1. and 01-ORD-87 (holding that KRS 61.878(1)(c)1. is not applicable "to records generated by or for a public agency" nor does the protection extend to a consultant's report prepared for the agency at agency expense). Relying upon Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., 826 S.W.2d 327, 328 (1992)("The public's right to know is premised upon the public's right to expect its agencies properly to execute their statutory functions"), Massey further notes that in executing the statutory function of assessing "self-insurance premiums and surety for companies doing business in the Commonwealth, the Executive Director of the OWC" must use "'generally accepted actuarial methods. KRS 342.0011(28).'" In Massey's view, the model which the OWC hired Mr. Kadison to produce for its use "is obviously a fundamental part of the assessment process." According to Ms. O'Brien, the refusal of the OWC to produce a copy of the model "in useable format, without restriction," violates the purpose and policy of the Open Records Act insofar as it prevents "full inspection of the materials which form the basis of the agency's function in this area." Neither Massey "nor any other self-insured entity or any citizen would be able to determine whether the model itself is actuarially sound, or whether the OWC's use and application of the model is in accord with generally accepted actuarial principles."
In disputing the contention of the OWC that surety assessments for other self-insured companies are exempt, Massey acknowledges that "actual financial information from other self-insured companies operating within the Commonwealth may well fall within the parameters of proprietary or confidential information" under KRS 61.878(1)(c)1., but contends that the "end result of the agency's analysis and ultimate assessment of appropriate surety for the companies does not fall within that protection." Instead, such information "is the result of the agency's own work and thus outside the scope of the protection." Relying upon 01-ORD-87 and 01-ORD-143, Massey asserts that KRS 61.878(1)(c)1. does not encompass the agency's own records. In conclusion, Massey notes that none of the requested material was provided to the OWC by outside entities "which were required to make disclosure [s] because of their involvement in 'public affairs' such as doing business as a self-insured employer. Instead, the actuarial model was commissioned by the agency itself, paid for by the agency and supplied to the agency." To further the purposes of the Open Records Act, "Massey requests that the OWC be directed to provide, without restriction, the actuarial model in electronic format and the information for other individual self-insured entities for the prior three (3) years."
Upon receiving notification of Massey's appeal from this office, Ms. Montgomery elaborated upon her original response as follows:
First, we would argue that, pursuant to 40 KAR 1:030, Section 6, 3 this complaint is moot because the model has been made available to the requesting party prior to the complaint being filed and statistics with regard to the surety amounts have been provided.
The [OWC] purchased the model from Jeffrey Kadison, an actuary[,] after completing a bidding process. Mr. Kadison, in his expertise, created the model to assist the [OWC] in setting surety amounts. Our original response to Ms. O'Brien stated that while we felt the model was proprietary and did not want it used or copied inappropriately, we would make the model available to Ms. O'Brien, and her client, [Massey,] at our office. We made the model available at our office for review on a computer with total access to the surety model. Ms. O'Brien and another person did come to our office to review the model. Later, during the pendency of ongoing litigation, we agreed to email the model with the data filed by Massey to their expert in New York in accordance with an agreed protective order entered into on November 20, 2006. Their expert was able to review, analyze and produce an extensive analysis of the model. Massey's expert testified about the model at the hearing that was held on January 10, 2007. Ms. O'Brien prepared the stipulated protective order, which all parties agreed to and signed. Our agency simply requested that the model be used for purposes of Massey's hearing and not for any competitive advantage or inappropriate use by their expert against Mr. Kadison. The agreement was entered into after the model had already been made available at our office. Our agency simply did not want the model to be given freely to others after our agency had paid a substantial amount of money for the model. Massey and its expert have been able to review the model and this appeal is now moot.
According to Ms. Montgomery, the OWC "has complied with the requirements of KRS 61.872 by making this surety model available for inspection and providing suitable facilities for reviewing"; the OWC further complied "by providing the model through email in a useable format to Massey and its consultant. "
In defending the confidentiality of the "the surety amount for all 164 individual self-insurers, " Ms. Montgomery explains:
All self-insured employers have to file loss data reports and other financial information, pursuant to 803 KAR 25:021, Section 8, 4 with our agency, which is audited by [OWC] staff. This information contains specific information with regard to losses and claims of an individual self-insurer. It contains financial information that self-insured employers would not share with any other businesses. This information is proprietary and exempt from [the Open Records Act] pursuant to KRS 61.[878](1)(c)1. This financial information is [entered] into the actuarial model to assist in the determination of the proper amount of their surety. Financial information with regard to individual self-insurers is given a high priority by the legislature, to the extent that KRS 342.347 5 protects information obtained by our agency and exempts it from the Open Records Act. Some of these businesses that are self-insured are publicly held while many are privately held. Some of the financial information on publicly held businesses may be available in other ways, but the privately held businesses keep all of their financial information private. If a self-insurer posts a letter of credit or bond as surety with the [OWC], competitors will gain information concerning the self-insurer' s financial status. Information about a self-insurer' s debt may be used competitively against its business. Competitors may find out how much the company is leveraged, what type of claim history exists, and other pertinent financial information can be deduced from disclosing the surety amounts.
In the OWC's view, other companies "should not be allowed to obtain financial information concerning another business by saying this protection does not extend to the agency's own records." To the contrary, the surety amount "is derived as a direct result of proprietary financial information required to be filed with [the OWC]. The surety amount is a debt of this business and has a significant financial impact on each individual business." In other words, the "requested surety amount is not just a public agency's record. The information is tied to one individual self-insured employer and is to be considered financial information relating to one particular business."
As further clarified by Ms. Montgomery, the OWC "provided some statistical data to Massey which is the surety amount for all 164 individual self-insurers as requested," but did not "specifically provide the name of the corresponding self-insured employer." Massey is requesting "the identity of all 164 self-insured employers and the amount of the surety that is posted for each self-insured employer." Individual self-employers would "strongly object" to disclosure of information regarding the specific amount posted by each with the OWC. Although the Open Records Act is designed to prevent public agencies from withholding records concerning "the agency and its actions[,]" the "requested records are directly tied to an individual business and must be protected by [the OWC] and this Commonwealth."
In our view, the OWC properly relied upon KRS 61.878(1)(c)1. in withholding the specified financial information, although the protection does not extend to the model itself, a copy of which the OWC, having acknowledged such technology exists and waived any substantive argument for denying access, must provide to Massey in electronic format minus any protected financial information but otherwise without restriction. As evidenced by the record, Massey requested "all documents reflecting the actuarial model"; because "the model cannot be reduced to a copy" (presumably meaning a paper/hard copy) , the OWC indicated that Mr. Kadison "does regard the model as proprietary" 6 but, nevertheless, made it available for inspection and review in accordance with KRS 61.872. To clarify, this office has long recognized that when inspection is permitted "the requester enjoys a corollary right to obtain copies." 02-ORD-168, p. 7, citing KRS 61.874(1) and OAG 89-40; 04-ORD-053. Although the context in which this issue arises is admittedly unique, the instant appeal presents no reason to depart from this approach. To the contrary, the OWC subsequently forwarded the model "with [only] the data filed by Massey" to its expert via electronic mail, thereby acknowledging implicitly that reproduction and/or transmittal is technologically feasible-the remaining question regarding the accessibility of the model. 7
Pursuant to KRS 61.874(2):
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(Emphasis supplied). In addressing this issue, the Attorney General has consistently held that "if nonexempt records exist in both standard electronic format and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. " 99-ORD-12, p. 6; 02-ORD-65. Although the interactive character of the model, or ability to manipulate the data, may or may not be affected, 8 the OWC apparently has the capability to produce the functional equivalent of a copy in electronic format, if not a hard copy in the conventional sense of the word, just as it did previously; however, the agreed upon restrictions are not permissible under the Open Records Act in the absence of a commercial purpose. See 04-ORD-113; 95-ORD-77. When viewed in conjunction, KRS 61.874(2) and the cited authorities require the OWC to produce a copy of the model in electronic format minus any protected information - nothing more, nothing less. In so holding, this office attempts to strike a balance between the right of the public to ensure the OWC is acting in compliance with "generally accepted actuarial principles" and the right of Mr. Kadison to protect the inherent value of his design or methodology.
To qualify for exclusion under KRS 61.878(1)(c)1., upon which the OWC relies in withholding the "actual surety levels for all other self-insured companies" for the past three years, public records must be:
1) confidentially disclosed to an agency or required by an agency to be disclosed to it;
2) generally recognized as confidential or proprietary; and
3) of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them.
See, e.g., 96-ORD-135; 97-ORD-66; 97-ORD-132. On at least two occasions, the Kentucky Supreme Court has analyzed the scope of KRS 61.878(1)(c), concluding that public agencies which had invoked KRS 61.878(1)(c)1. and 61.878(1)(c)2., respectively, had satisfied their burden of proof by conclusively establishing that the records withheld were confidentially disclosed or required to be disclosed, generally recognized as confidential or proprietary, and otherwise qualified for exclusion under the express terms of the applicable exception.
In Marina Management Services, Inc. v. Cabinet for Tourism, Ky., 906 S.W.2d 318 (1995), the Court held that records containing financial information of privately owned marina operators are exempt from disclosure, reasoning that disclosure would provide an unfair advantage to competitors by allowing them to ascertain the economic status of the marina operators. As the Court observed:
The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditors Office. On these facts alone, the exemption clearly applies.
(Emphasis added). Because the evidence of record supported the Parks Department's invocation of KRS 61.878(1)(c)1., the Court upheld the denial; this reasoning applies with equal force on the facts presented.
Similarly, in Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995), which further supports our conclusion, the Court found:
The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability. . . . It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2).
As in Marina Management Services, the public agency to which a private corporation was required to confidentially disclose records established that the records being sought were generally recognized as confidential or proprietary. See 01-ORD-87 ("These cases, along with the cited open records decisions, demonstrate that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency" ).
A review of the comprehensive statutory scheme governing Workers' Compensation (KRS Chapter 342), and the corresponding regulations adopted by the OWC, which are codified at 803 KAR Chapter 25, namely, 803 KAR 25:021 (Individual self-insurers) , validates the OWC's assertion regarding the confidential and proprietary nature of the financial information requested as well as the "high priority" given to same by the General Assembly. Likewise, the explanation by the OWC as to how disclosure of the annual filings, which must include a statement of the employer's financial condition, total payroll for the previous year, loss data reports (surety and premium), certification regarding medical reserves, etc. could be used competitively against each self-insured employer, is entirely credible. In short, the individual self-insured employers whose information is being sought are statutorily required to disclose ( and confidentially disclose) that information to the OWC; Massey does not challenge this assertion, but concedes the "actual financial information from other self-insured companies" may be proprietary, arguing instead "the end result of the agency's analysis and ultimate assessment of appropriate surety" does not fall within the parameters of KRS 61.878(1)(c)1. However, the proprietary information confidentially disclosed to the OWC by individual self-insured employers could presumably be extrapolated from the end result/ultimate assessment, thereby defeating the purpose for which KRS 61.878(1)(c)1. was invoked. Neither the courts nor this office are permitted to interpret statutes in such a manner as to "bring about an absurd or unreasonable result." Renaker v. Commonwealth, 889 S.W.2d 819, 820 (1994)(citation omitted). In our view, the underlying financial information is the epitome of information generally recognized as confidential or proprietary and is of such a character that disclosure would provide competitors of the employers with an unfair commercial advantage; the OWC properly denied access on the basis of KRS 61.878(1)(c)1.
In contrast, the Attorney General has determined more than once that a public agency improperly relied upon this exemption in denying access to records generated by or for the agency. For example, in 97-ORD-66 this office held that Kentucky Employers' Mutual Insurance Authority violated the Open Records Act in refusing to disclose operational and financial records (as opposed to records like those at issue), as well as personnel files, that were created in the ordinary course of business, under authority of KRS 61.878(1)(c)1. As observed by the Attorney General:
By its express terms, this provision is inapplicable to records generated by KEMI as opposed to records confidentially disclosed to KEMI or required by KEMI to be disclosed to it. KRS 61.878(1)(c)1. It is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage . . . .
Operational and financial records, as well as personnel files, created by KEMI in the normal course of business do not fall within the wording of KRS 61.878(1)(c)1. That exemption's protection simply does not extend to the agency's own records. If, on the other hand, KEMI requires a private employer seeking to purchase workers compensation insurance from it to disclose records which are generally recognized as confidential or proprietary, and KEMI can demonstrate that release of those records would permit an unfair commercial advantage to the private employer's competitors, then KEMI can properly rely on KRS 61.878(1)(c)1. Otherwise, this provision has no application. Bearing in mind, once again, that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed," we find that KEMI improperly relied on this exemption. KRS 61.871.
Id. at pp. 8-9. To clarify, this case more closely resembles the hypothetical scenario. In 01-ORD-87, this office rejected the Franklin Electric Plant Board's reliance on KRS 61.878(1)(c)1. as the basis for denying a request for the minutes of its meeting, and financial projections submitted to the Board by a sister electric plant board acting as an outside consultant since these were records generated by or for the Board. In so doing, this office reasoned:
In the case of financial projections, the "entity that disclosed the records" is the outside consultant, a sister electric plant board. No claim is made that the sister plant board would be competitively disadvantaged by disclosure, and none could be made since the financial projections relate to the Franklin Electric Plant Board. [Footnote omitted.] In the case of minutes of regular meetings, such records are not "confidentially disclosed to an agency or required by an agency to be disclosed to it" nor are they "generally recognized as confidential or propriety." The fact that comments were ill-advisedly made in the course of an open, public meeting that placed the Board at a risk of competitive harm is not enough to bring minutes reflecting those comments within the scope of KRS 61.878(1)(c)1.
Id. at p. 7. See also 03-ORD-129; 01-ORD-143. Simply put, the model at issue does not enjoy the protection of KRS 61.878(1)(c)1. under this line of authority; however, the information entered into the model, does qualify for protection under any reasonable interpretation of Marina Management Services and Hoy as well as the subsequent line of decisions issued by this office.
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.
Eileen M. O'BrienCarla H. MontgomeryGeneral CounselOffice of Legal ServicesEnvironmental and Public Protection Cabinet657 Chamberlin AvenueFrankfort, KY 40601
Footnotes
Footnotes
1 Because Massey does not challenge the position of the OWC relative to Item No. 2 of the request nor does the record contain any evidence of bad faith or willful concealment, analysis of this issue is unwarranted. A public agency cannot produce for inspection or copying records which do not exist. See 05-ORD-108.
2 Guidelines forinspection of public records pursuant to the Open Records Act are codified at KRS 61.872. Of particular relevance here, KRS 61.872 provides:
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In other words, the Open Records Act contemplates access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, a requester that both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. Id. On the other hand, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." Id., p. 5. See also 06-ORD-155 (holding that a public agency may require a requester to conduct an on-site inspection of the records prior to furnishing him with copies if the records are not "readily available," but may not deny the request entirely). For a discussion of the greater burden imposed upon requesters seeking to receive copies through the mail, see 02-ORD-26, p. 6.
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3 In accordance with Section 6 of 40 KAR 1:030: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Because the OWC admittedly placed restrictions on the use of the model and withheld the corresponding names in releasing the surety amounts, this office disagrees that any issues are moot; partial satisfaction of the request, by definition, failed to conclusively resolve the matter and precludes such a finding.
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4 Section 8 of 40 KAR 25:021, entitled Annual Filings, provides:
(1) An individual self-insured employer shall file with the executive director on or before 120 days from the end of the self-insured' s fiscal year:
(a) The statement of financial condition required by KRS 342.347(2);
(b) Total payroll for the prior calendar year, the projected payroll for the next year by quarter, and other reasonable information requested by the executive director, including relevant claim data; and
(c) If a service organization is used, a statement from the service organization and self-insured employer stating that the contract between the two (2) parties meets the requirement set forth in Section 3(4) of this administrative regulation.
(2) At least ten (10) days prior to the end of each self-insurance year, the individual self-insurer shall file proof of specific excess insurance for the following year with the executive director.
(3) An individual self-insured employer shall file loss data reports which shall:
(a) Include a surety loss report;
(b) Include a premium loss report;
(c) Include a certification that the medical reserves are calculated and projected for the life of a claim pursuant to KRS 342.011(28)(a); and
(d) Be filed no later than the third Monday in February each year.
(4) If the annual required filings are not timely made, the self-insurance certificate shall be subject to modification or revocation.
5 More specifically,KRS 342.347(1) provides:
The executive director or his designee shall have power to examine the financial condition and affairs related to workers' compensation of any individual self-insureds and shall have free access to books and documents relating to the self-insurance activities of the entity. The executive director shall so examine each individual self-insured not less frequently than once every four (4) years. Information obtained through the examination shall be exempt from disclosure, under KRS 61.878(1)(j).
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6 Noticeably absent from the initial and supplemental responses of the OWC is any reference to KRS 61.878(1)(c)1., presumably because the OWC never denied access, relying instead upon the purported inability to produce a copy in electronic format as requested. To the extent the OWC implicitly relies upon this exception (a violation of KRS 61.880(1)) insofar as the OWC failed to cite the applicable exception and briefly explain how it applies), governing precedent does not support its claim; the analysis below relative to 97-ORD-66 and 01-ORD-87 is controlling and validates the position of Massey insofar as the model was created by or for the OWC.
7 Although the OWC did so during the course of the " Self-insured assessment proceeding," the Stipulated Protective Order expressly provides that production of the "discovery material" furnished by the OWC, which explicitly covers the model produced by Mr. Kadison and the materials, data, etc. utilized by him in development of the model, and is "designated as 'CONFIDENTIAL' " may not be "shown, disclosed, divulged, revealed, transmitted, described or otherwise communicated by the attorneys" for Massey, except with the prior written consent of the OWC or pursuant to "further order or direction of the OWC, the Executive Director, a Court of competent jurisdiction, or the Kentucky Attorney General." In addition, Massey and the OWC "acknowledge and agree" in the concluding paragraph of the order that Massey "will continue to pursue and assert its entitlement to production of the materials designated . . . through application or appeal to the Office of Attorney General of the Commonwealth of Kentucky . . ." In short, both parties have explicitly acknowledged the authority of this office to resolve such disputes per KRS 61.880(2)(a).
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8 Such issues are not justiciable in this forum nor does the record contain sufficient evidence upon which to base a determination. As in 03-ORD-129, this office reminds the parties "that the Attorney General is constrained by time and resources, . . . from conducting a through inquiry into this issue." Id. at p. 4. To paraphrase an early opinion of this office involving a dispute arising under KRS 61.870, et seq., "[g]iven the limited role for the Attorney General contemplated by the statues and the office's limited resources, the Attorney General cannot truly be a 'judge' in the sense of reviewing volumes of documents, listening to testimony, considering briefs, etc." Id. at p. 5, citing OAG 88-64, p. 1. On occasion, the application and meaning of the Open Records Act must be determined by a court of law; that avenue remains open to both parties if they disagree with our decision.
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