Request By:
Ms. Theresa L. Holmes
Corporate Counsel
Lexington Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Dr. Leon H. Sharp has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his August 20,1991, request to inspect certain documents in the possession of the Lexington Fayette Urban County Government's Division of Risk Management. Those documents are identified as:
Any and all documents your agency has about Larry R. Eaves, Claim No. W-523-C. The statement and report that the billing was not presented to the Lexington Fayette Urban County Government Workmans' Compensation, and all of the information that you have in your files regarding Larry R. Eaves, regarding non-payment to me and the reason why.
Dr. Sharp is a chiropractor who treated Mr. Eaves for a work related injury he sustained while employed by the Lexington Fayette Urban County Government. After a settlement was reached by Mr. Eaves and the Urban County Government, Dr. Sharp advised Risk Management that a portion of his bill for services had not been paid. It is his belief that these bills were never submitted to the Division by Mr. Eaves or his attorney.
On behalf of Risk Management, you partially denied Dr. Sharp's request in a letter dated August 27, 1991. Relying on KRS 61.878(1) (a), (g), (h) and (j), you explained that the documents which pertain to Mr. Eaves are shielded from disclosure by KRS 61.878(1)(a), the privacy exemption. Continuing, you asserted that "correspondence with the Government's workers' compensation attorney is excluded [from the application of the Open Records Act] by subsection (1)(j)," which exempts from inspection "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. " You argued that since KRS 421.210(4) makes confidential attorney work product and correspondence with an attorney, these documents may be withheld from public inspection. Finally, you indicated that the remaining documents, which consist of preliminary recommendations and opinions, were excluded by KRS 61.878(1) (g) and (h). You did, however, release copies of the bills submitted by Dr. Sharp's office to Mr. Eaves, and the Workers' Compensation Board's decision in Mr. Eaves' case. In a separate letter of denial, Mr. Ernest H. Jones, an attorney representing the Lexington Fayette Urban County Government in this matter, echoed your position.
Dr. Sharp expresses concern about the "secrecy regarding this case." He asks that this Office review your decision to determine if the Urban County Government acted consistently with the Open Records Act in partially denying his request. For the reasons set forth below, we conclude that you properly denied that portion of Dr. Sharp's request pertaining to Mr. Eaves' medical records, investigative records of a preliminary nature, and records which represent attorney work product.
OPINION OF THE ATTORNEY GENERAL
In a conversation with Ms. Judy Long, Administrator of Claims for the Division of Risk Management, which took place on October 11, 1991, the undersigned Assistant Attorney General was advised that Risk Management is the self-insurer for workers' compensation claims filed by employees of the Lexington Fayette Urban County Government. Its files consist of medical records and doctors' statements, investigatory memoranda and reports, and correspondence with the attorney handling the claim. Like a personnel file, many of the documents contained in the files are personal in nature, and the disclosure of information contained therein serves no public interest. Board of Education of Fayette County v. Lexington Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981); OAG 85-88; OAG 86-80; OAG 91-62. Accordingly, individuals seeking to inspect such files under the Open Records Act must reasonably identify the records sought. "Blanket requests for information on a particular subject without specifying certain documents need not be honored." OAG 76-375, p. 2.
Although Dr. Sharp's request was couched in terms of "any and all documents . . . about Larry R. Eaves," you did not treat his letter as a "blanket request," but instead properly identified the documents in the file, cited the statutory exception which authorizes nondisclosure, and briefly explained how the exception applies to the records withheld. KRS 61.880(1). In addition, you released those nonexempt documents found in the file which related to Dr. Sharp's request. KRS 61.878(4). In an effort to assist Dr. Sharp in locating additional documentation, you directed him to the Workers' Compensation Board, which maintains fully releasable files relative to individual claims. KRS 61.872(3).
With respect to the specific exceptions cited in support of your decision to withhold the requested documents, we find that you properly invoked KRS 61.878(1) (a) to authorize nondisclosure of the medical records pertaining to Mr. Eaves. That statute excludes from the application of the Open Records Act:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In OAG 86-80, this Office recognized that a public employee's medical records may be excluded from inspection pursuant to KRS 61.878(1)(a). This is consistent with the notion that a patient has a right of privacy in his medical records, which may only be waived if the patient consents to disclosure. OAG 82-269; OAG 76-420.
Similarly, it is our opinion that any preliminary documents found in the file, such as predecisional memoranda and investigative reports, are exempt pursuant to KRS 61.878(1) (g) and (h). Those exceptions authorize the nondisclosure of:
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(h) Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
This Office, and the courts, have consistently held that investigative reports are exempt from public inspection as preliminary documents under KRS 61.878(1)(g) and (h). City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982); OAG 82-339; OAG 86-28; OAG 86-46. Such reports are generated in the course of the fact-finding process, and remain exempt as preliminary documents unless adopted as part of the decision maker's final action.
Turning to the remaining documents, which are characterized as correspondence with the attorney who handled the claim for the Lexington Fayette Urban County Government, we find that you correctly invoked KRS 61.878(1) (j), which exempts from public inspection public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. In OAG 82-295, this Office recognized that records which are the work product of an attorney are not discoverable under the Kentucky Rules of Civil Procedure, CR 26.02(3) and KRS 447.154, which states, in part, that no act of the general assembly shall be construed to limit the right of the Court of Justice to promulgate rules. OAG 81-246; OAG 82-295; OAG 85-20; OAG 87-28; OAG 88-32; OAG 91-53. Simply stated, records which are privileged under the rules of discovery are exempt from mandatory disclosure under KRS 61.878(1) (j).
We therefore conclude that the Lexington Fayette Urban County Government acted consistently with the Open Records Act in releasing the non-exempt portions of the workers' compensation claim file, including copies of bills submitted by Dr. Sharp's office and the final decision of the Workers' Compensation Board. Further, we conclude that you properly invoked KRS 61.878(1) (a), (g), (h) and (j) in support of your decision to withhold the medical records, investigative reports, and attorney work product found in the file.
As required by statute, a copy of this opinion will be sent to the requesting party, Dr. Leon H. Sharp. Dr. Sharp may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).