Request By:
Ms. Gay M. Elste
Associate Counsel
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Jr., Assistant Attorney General
You present the question of whether the Kentucky State Board of Physical Therapy is entitled to inspect the employment record of one of its licensees who was formerly employed by the University of Kentucky Medical Center. The licensee is Mrs. Denise Ockerman who was director of physical therapy at the University Hospital until she resigned on April 22, 1981. The requested records were described in the application for inspection of records as follows:
"Personnel records - annual reviews, reasons for discharge or resignation, patient letters of complaint, employee or former employee letters of complaint, complaint by Jr. Odom, Blue Grass Artificial Limb Company. A former patient of University Hospital has made a complaint to the Kentucky State Board of P.T. regarding Ms. Ockerman's fitness to maintain license to practice physical therapy. "
The application to inspect the described records was made by Richard McDougall, Chairman, Kentucky State Board of Physical Therapy. You indicate that the response of the University to the application was that the Board of Physical Therapy should subpoena the records since that would "more clearly depict the board's interest and position and protect the University and the authors of the various letters from a possible suit brought by Ms. Ockerman."
In regard to your request that the records be subpoenaed it is to be noted that the only subpoena power conferred on the Board by statute is to compel the attendance of witnesses to give testimony. KRS 327.040(4). The Board has taken the position that it is entitled to inspect the described records on request under KRS 61.878(4) which reads as follows:
"The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function. "
The statutory subsection just quoted is a part of the Kentucky Open Records Law, KRS 61.870 - 61.884. It applies to public records which are not open to public inspection because of one of the exceptions provided by KRS 61.878(1). The effect of Subsection (4) is to allow the exchange between public agencies of records which are exempt from the mandatory requirement of public disclosure when the purpose of the exchange is to serve a legitimate governmental need.
When one public agency requests of another the inspection of records under KRS 61.878(4) the requesting agency has the duty to assure the responding agency that it needs to inspect the records in the performance of a legitimate government function. We believe that the request made by Mr. McDougall in this instance satisfied that requirement. The application to inspect the records states that the licensing board is considering Ms. Ockerman's fitness to maintain a license to practice physical therapy, and that is a governmental function of the licensing board. We believe that the board should be given access to the described records because of its official status even though the records may not be subject to mandatory public inspection under KRS 61.878(1).
Although KRS 61.878(4) does not use mandatory language, we believe that the clear legislative intent is that governmental agencies shall cooperate with one another and that one agency should assist another in carrying out its governmental functions. The University of Kentucky and the Board of Physical Therapy are both public agencies and should cooperate with one another. The only limitation to that cooperation is that the exchange of records between agencies should serve a governmental need. In the case Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981) it was held that the responding agency could "sanitize" the records of material which were not germane to the governmental need. The court said on page 111:
"We do not consider our views to be violative of KRS 61.878(4) because nothing contained therein entitles one governmental agency to demand from another information which does not serve a governmental need. In other words, there is no unqualified right for one entity to examine the total personnel files of another."
In the Fayette County Case the Human Rights Commission had requested the personnel records of certain persons who were not involved in the subject under dispute. In the instant case the only records which have been requested are those pertaining to the licensee, Ms. Ockerman.
In summary, it is our opinion that the University of Kentucky should cooperate with the Kentucky Board of Physical Therapy by making the requested records available for inspection by the Board.