Request By:
Ann E. Lang
E. Jeffrey Mosley
Travis Powell
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Finance and Administration Cabinet violated the Kentucky Open Records Act in denying the request of Ann E. Lang concerning the proof of insurance coverage for private investigators required by KRS 329A.035(3)(n) . 1 More specifically, Ms. Lang asked for "the name and address as well as phone number regarding the required insurance policy or policies which may include [sic] minimum of $ 250,000 or more by policy or multiple policies also." Given the mandatory language of KRS 329A.035(4), pursuant to which the "board shall maintain the confidentiality of information relating to the licensee or applicant" unless the information is requested by a local, state, or federal law enforcement agency, this office must affirm the Cabinet's denial of Ms. Lang's request. Although significant policy considerations weigh in favor of disclosing the requested information, as opposed to personal information identifying the insured, such as the underlying policy of the Open Records Act codified at KRS 61.871, and the fact a member of the public has no independent means by which to confirm that a private investigator is properly insured, the Attorney General is not at liberty to draw such a distinction where the General Assembly has not.
By letter directed to Gerald Hoppmann, Executive Director, Division of Occupations and Professions via facsimile on January 14, 2008, Ms. Lang submitted the aforementioned request, explaining that names on the policy "may be an individual, partners, partnership, company or companies, corporation or corporations, assumed names for any of the listing [sic]":
1. Mike Ober
2. Rick Hessig
3. Commonwealth Special Investigative Unit
4. Kentucky Special Investigative Unit (KYSIU)
5. Rick Hessig and Mike Ober, Inc. (Company ID # 0533854.0999999)
6. Kentuckiana Concierge
7. Louisville Detectives.com
8. Bluegrass Bikefast
By letter dated January 17, 2008, E. Jeffrey Mosley, General Counsel, responded on behalf of the Cabinet, advising Ms. Lang that his agency was "in the process of filling said request and it may take some time to gather and review all the requested information. " Mr. Mosley expected that the Cabinet would "be able to fill the request within the next week."
On January 22, 2008, Mr. Mosley sent a supplemental response, advising Ms. Lang that "KRS 329A.035(3)(n) requires private investigator license applicants to submit proof of coverage that meets certain requirements." Quoting KRS 329A.035(4), Mr. Mosley then denied Ms. Lang's request, observing that the "information requested is exempt from the Open Records Law pursuant to KRS 61.878(1)(l)." In lieu of documents containing the requested information, Mr. Mosley enclosed "copies of licensure certificates and license verifications for both Mike Ober and Rick Hessig." 2 According to Mr. Mosley, these documents "verify that both Mr. Ober and Mr. Hessig have fulfilled all the private investigator licensure requirements, including those regarding insurance coverage. The board does not maintain the requested information or any other filings for the other entities listed in your request." By letter dated January 24, 2008, Ms. Lang initiated this appeal from the denial of her written request.
Upon receiving notification of Ms. Lang's appeal from this office, Travis Powell, Attorney, responded on behalf of the Cabinet. Having summarized the events which precipitated this appeal, Mr. Powell reiterates Mr. Mosley's argument relative to KRS 329A.035(3)(n) and KRS 329A.035(4), the latter of which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). While it certainly is "not the intention of the Cabinet to withhold records which may be lawfully produced" under the Open Records Act, the Cabinet "feels it must maintain the confidentiality of the information requested as required by enactment of the General Assembly." Mr. Powell notes that the Board provided Ms. Lang with "the licensure status of these individuals as permitted under KRS 61.878(1)(l)." In the Cabinet's view, this information is "relevant to her request in that it proves that proof of insurance coverage was provided by these individuals and that the coverage met the statutory requirements." 3
Because this appeal presents an issue of first impression, and significant policy considerations are involved, the Attorney General asked the Cabinet for additional information to facilitate resolution of this matter in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. More specifically, this office asked the Cabinet to elaborate upon its position that the information requested, as opposed to personal information identifying the licensee or applicant, such as full name and address, date and place of birth, social security number, employment history, criminal background, etc. constitutes "information relating to the licensee or applicant," the confidentiality of which the Board is required to maintain. In addition, this office asked the Cabinet to explain the mechanism, if any, by which the public can independently confirm that private investigators are properly insured per KRS 329A.035(3)(n) and/or that insurance companies meet the specified criteria given the Cabinet's interpretation of KRS 329A.035(4).
In a timely written response, Mr. Powell responded on behalf of the Cabinet. Having again quoted the relevant language of KRS 329A.035(3)(n) and KRS 329A.035(4), Mr. Powell asserts that the "'name and address as well as phone number for any and all companies providing the required insurance policy or policies' is 'information relating to the licensee. ..'" In other words, "the information that Ms. Lang requests relates to the licensee and would be meaningless otherwise. The language of KRS 329A.035(4) does not qualify the word 'information.' Therefore, any information related to a licensee is meant to be kept confidential. "
Because the General Assembly "has indicated its desire to keep information relating to a licensee confidential, the public can only confirm that a private investigator is properly insured by confirming the license status of a private investigator with the [Board] through KRS 329A.035(5)." According to Mr. Powell, if the private investigator has a valid license "then proof of insurance coverage was provided by these individuals and the coverage meets the statutory requirements. An individual cannot independently confirm that a private investigator's coverage meets the statutory requirements unless he or she represents a 'local, state, or federal law enforcement agency' as provided in KRS 329A.035(4)." Likewise, an individual "cannot independently confirm that a licensee has the requisite criminal background [sic] pursuant to KRS 329A.035(d) and (e)," information which this office implied would be properly withheld. Based upon the foregoing, the Cabinet maintains its position that the requested information is exempt from the Open Records Act by virtue of KRS 329A.035(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Although this interpretation of KRS 329A.035(4) deprives the public of the ability to confirm the Board is properly discharging its duty to license only those applicants with proper coverage, which is contrary to the spirit and purpose of the Open Records Act and particularly troublesome given that all other information related to a licensee or applicant must be protected from public scrutiny, this office must affirm the Cabinet's denial based upon the apparent legislative intent expressed by the mandatory language of this provision and KRS 329A.035 as a whole.
Our limited role in resolving the substantive question presented "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id . As with any decision involving statutory interpretation, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Our analysis is necessarily guided by these fundamental principles, as well as the statement of legislative policy codified at KRS 61.871, "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed[.]"
Among those records removed from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Resolution of the instant appeal turns on KRS 329A.035(4), pursuant to which:
The board shall maintain the confidentiality of information relating to the licensee or applicant, except that the board may provide this information to local, state, or federal law enforcement agencies.
This confidentiality provision is unquestionably incorporated into the Open Records Act by operation of KRS 61.878(1)(l); accordingly, the analysis is relatively straightforward notwithstanding the policy implications.
Because Ms. Lang is not acting on behalf of a law enforcement agency, the mandatory language of KRS 329A.035(4) precludes the Board from providing her with records containing "information relating to" the specified investigators. On appeal, the Cabinet ultimately noted that KRS 329A.035(4) does not contain any qualifying language; this point is well-taken. However, in our view, the requested information is arguably different in character than, for example, the Social Security number, full name and address, date and place of birth, employment history, and other identifying information which KRS 329A.035(1)(a) requires an applicant to provide, as well as the other criteria listed at KRS 329A.035(3) , such as the applicant's age, citizenship, educational background, criminal history, and "moral character."
Although the name and contact information of the insurance company providing the statutorily required coverage for a licensee or applicant does indirectly "relate to" same in the broadest sense, that information is not of such a highly personal or sensitive character that disclosure would have implications relative to protecting the privacy of the licensee or applicant. In light of the fact all other information relating to a private investigator must be withheld, a member of the public arguably should, at a minimum, be entitled to independently confirm that a private investigator is properly insured rather than having to assume that the Board has discharged its duty; this office is not aware of any provision affording this degree of protection to any other kind of licensee nor is the resulting insulation from public scrutiny consistent with KRS 61.871.
That being said, the General Assembly did not draw any distinction between the requested information and the remaining items listed in drafting KRS 329A.035(3) . Given our limited role of effectuating the legislative intent as expressed by the mandatory language of KRS 329A.035(4), this office must affirm the Cabinet's denial of Ms. Lang's request. As long recognized by the Attorney General, "[i]f subtle changes in the law are to be made, they should be made by the legislature and if subtle interpretations [of the law] are to be made, they should be made by the Court." OAG 80-54, p. 3.
This office is also compelled to comment on the procedural irregularity evident upon review of the record. Although the Cabinet appears to have acted in good faith, and, to its credit, did issue a written response to Ms. Lang's request in a timely manner, the Cabinet erred in first advising her that it expected to "be able to fill the request within the next week" and then denying the request in a subsequent response. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides:
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 . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added.)
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request and to either produce documents containing the requested information or cite the applicable statutory exception and briefly explain how it applies to the records being withheld. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. Although the burden on the agency to respond within three working days is not infrequently an onerous one, the only exception to this general rule is codified at KRS 61.872(5), which the Cabinet did not invoke. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7.
On appeal, the Cabinet acknowledges issuing the initial response but offers no explanation for the inconsistency between it and the subsequent denial or the lack of specificity in the former. A public agency is required to cite the applicable exception, and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed by KRS 61.880(2)(c); the Cabinet ultimately did that here and in a timely fashion. See 00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2; 97-ORD-41, p. 6. That being said, the Cabinet nevertheless violated the Act in failing to initially either issue a written response within three business days, citing the applicable statutory exception and briefly explaining how it applies, or provide the detailed explanation and written commitment mandated by KRS 61.872(5). Bearing in mind that KRS 61.880(2)(c) assigns the burden of proof to public agencies, and that KRS 61.880(1) "requires the custodian of records to provide detailed and particular information in response to a request for documents," this office cannot reach any other conclusion; however, the Cabinet's final response denying Ms. Lang's request contains the requisite specificity and is also substantively correct.
Edmondson v. Alig, supra.
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.
Footnotes
Footnotes
1 Among the 14 criteria listed at KRS 329A.035(3) which shall be met by "[e]ach applicant for an individual license or owner, partner, or qualifying agent for a company license" is:
(n) Submit proof of coverage which meets the following requirements:
1. Is written by an insurance company which is lawfully engaged to provide insurance coverage in Kentucky;
2. Provides for a combined single-limit policy in the amount of at least two hundred fifty thousand dollars ($ 250,000); and
3. Insures for liability all of the applicant's employees while acting in the course of their employment.
Private investigators who limit their practice exclusively to working under the supervision and as employees of an attorney who is licensed to practice law in this state are exempted from the requirements of this paragraph.
2 Pursuant to KRS 329A.035(5):
Upon inquiry by any individual or entity, the board or the board's administrative staff shall provide or confirm the license status of any private investigator or private investigating company.
3 Upon receipt of a license application, among other tasks outlined at KRS 329A.040, the Board shall:
(a) Conduct an investigation to determine whether the statements made in the application are true[.]