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02-ORD-9

By Mildred King,2014-05-13 08:46
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02-ORD-9

    02-ORD-9

    January 16, 2002

In re: In re: Artis Anderson/Department of Insurance

    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:

    02-ORD-9

    Page 2

     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

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     Page 3

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:

    Pleadings, filings, exhibits, numerous and various

    letters from Mr. Anderson, attorney’s notes,

    investigative materials, research materials, status

    reports, letters to and from various counsel involved

    in the case, notes of meetings, drafts of documents

    and other types of records that would generally be

    maintained by an attorney in the representation of a

    client.

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.

02-ORD-9

     Page 4

     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

02-ORD-9

     Page 5

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.

02-ORD-9

     Page 6

    Albert B. Chandler III

    Attorney General

    James M. Ringo

    Assistant Attorney General #627

Distributed to:

Artis Anderson

    P.O. Box 347

    Nancy, KY 42544

William J. Nold

    Department of Insurance

    215 W. Main Street

    Frankfort, KY 40601

Margaret Shreve

    Department of Insurance

    215 W. Main Street

    Frankfort, KY 40601

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