Request By:
Mr. Jon L. Fleischaker
Wyatt, Tarrant & Combs
Citizens Plaza
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to whether the Kentucky State Board of Medical Licensure may, under the Kentucky Open Records Law (KRS 61.870-61.884), withhould from public inspection documents in its possession relating to complaints received by the Board against Kentucky physicians, and investigations of those complaints, in which the decision was made by the Board not to issue a formal complaint. You state:
"These documents would include complaints made to the Board by individual members of the public, other doctors, and primarily complaints made by other state agencies, such as the Department for Human Resources."
The documents described above and at issue may be contrasted with documents in files in which a formal complaint was issued and a final determination made by the Licensure Board. You state that Mr. Brinkley, a reporter for your client, The Courier Journal and Louisville Times Company, has been given access to such files, but the Board has declined his request to see documents in closed files where no formal complaint was ever made by the Board. You further clarify and limit Mr. Brinkley's request as follows:
"We are not seeking 'personal information' about private individuals, such as the name of the patient or the patients involved in any of these complaints, and we would be agreeable to the deletion of patient names or other identifying information under KRS 61.878(3). In addition, we are not seeking the names of confidential informants and would be agreeable to the deletion of any identifying information in that regard. Finally, this request does not include those records relating to matters presently pending before the Board; rather, it relates only to those investigations in which a decision has been made by the Board or its staff to take no further action at a particular time as a result of a 'complaint' or an investigation."
Under KRS 61.870, et seq. , the records of a public agency, including a licensure board, are open to public inspection unless they are made confidential by a specific statute or fall under one of the exceptions in the Open Records Law in KRS 61.878(1). There is no specific statute making the requested records confidential, and no law would be violated if the Licensure Board made them available to the public. We are left, therefore, with the question of whether the Board may adopt a policy of withholding the described records from public inspection under one or more of the exceptions provided by KRS 61.878(1).
We think that complaints made to the Board by individual members of the public and by other doctors may be withheld from public inspection as correspondence with private individuals. KRS 61.878(l)(g). Complaints from other state agencies, such as the Department for Human Resources, however, cannot be characterized as correspondence with private individuals. We think that documents containing such complaints come under the exception of KRS 61.878(1)(h): Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
Exception (h) is usually interpreted as applying to intra-office memoranda, but we see no reason why, in a proper case, it cannot also be applied to inter-office communications of a preliminary nature and which only suggest or request that an investigation be made by the receiving office. It is, therefore, our opinion that the Board of Medical Licensure may decline to allow access to documents connected with a complaint received by the Board but which were never used in a formal complaint against a licensee.