Request By:
Mr. C. William Schmidt
Executive Director
Kentucky Board of Medical Licensure
The Mall Office Center
400 Sherburn Lane, Suite 222
Louisville, Kentucky 40207
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
On behalf of her client, Bethalene Campbell, Ms. Linda K. West, Assistant Public Advocate, has appealed to the Attorney General, pursuant to KRS 61.880, your partial denial of her October 21, 1991, request to inspect certain documents in the possession of the Board of Medical Licensure. She identifies those documents as the neuropsychological evaluation of Dr. Robert J. G. Lange, M.D., which was performed by Richard I. Edelson, Ph.D., and the psychiatric evaluation of Dr. Lange, which was performed by Dr. John P. Bell, M.D., pursuant to an order issued by the Board of Medical Licensure on December 18, 1987.
Ms. West explains that her client was convicted of first degree manslaughter in the shooting death of Frankie Joe Williams in September, 1987, and was sentenced to twenty years imprisonment. At trial, Ms. Campbell raised an insanity defense, presenting expert testimony that she suffered from post-traumatic stress syndrome. Ms. Campbell had had an intimate relationship with Mr. Williams, her teacher, at the age of fourteen, and was the victim of two unrelated rapes. This testimony was rebutted by Dr. Lange, who testified that he found no evidence of post-traumatic stress syndrome, and expressed the view that Ms. Campbell was fully responsible for her acts.
In November, 1987, Dr. Lange was indicted in the Franklin Circuit Court for unlawful transaction with a minor, based on a charge that he "knowingly induced, assisted or caused a fifteen year old male child to engage in illegal sexual activity to wit: sodomy." Based on this evidence, and subsequent license suspension proceedings initiated by the Board, Ms. West filed a motion for a new trial in Ms. Campbell's case. It is her position that because Dr. Lange engaged in sexual activity with a minor, he could not objectively evaluate a psychiatric disorder which resulted from forced sexual activity.
As a means of gathering evidence which she believes to be relevant to her motion for a new trial, Ms. West filed an open records request with the Board of Medical Licensure on October 21, 1991. She requested access to the Board's file in the license revocation proceedings against Dr. Lange, including the neuropsychological and psychiatric evaluations performed by Dr. Edelson and Dr. Bell.
Although you released a number of documents in Dr. Lange's file, you denied that portion of Ms. West's request pertaining to his neuropsychological and psychiatric evaluations in a letter dated November 7, 1991. You relied on KRS 61.878(1)(a), which 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 her letter of appeal to this Office, Ms. West asks that the Attorney General disqualify himself from reviewing your partial denial of her request. She argues that because the Attorney General is the chief prosecutor for the Commonwealth and head of a unified and integrated prosecutor system, and because the Commonwealth is Ms. Campbell's adversary in her motion for a new trial, this Office has a conflict of interest. She requests that the Attorney General arrange for the appointment "of an independent authority to perform the review mandated by KRS 61.880." For the reasons set forth below, we conclude that because the Attorney General is not statutorily empowered to delegate his duties to "an independent authority," we must proceed to a review of this open records appeal and that based on our review, the Board properly denied Ms. West's request.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. The statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request within the three (3) day period, of its decision. 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Ms. West's request was deficient in at least two respects. Some thirteen workdays elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely. Additionally, you did not immediately forward a copy of your letter of denial to this Office. That letter, dated November 7, 1991, was not received by this Office until November 18, 1991. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the broader issue raised by Ms. West, who suggests that the Attorney General should disqualify himself from reviewing this appeal in view of his role as the Commonwealth's chief prosecutor, we begin with an analysis of the relevant statutes. KRS 61.880(2) provides, in part:
If requested by the person seeking inspection, the attorney general shall review the denial and issue within ten (10) days (excepting Saturdays, Sundays and legal holidays) a written opinion to the agency concerned, stating whether the agency acted consistent with provisions of KRS 61.870 to 61.884. A copy of the opinion shall also be sent by the attorney general to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency and the attorney general may request additional documentation from the agency for substantiation. The attorney general may also request a copy of the records involved but they shall not be disclosed.
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
While we appreciate Ms. West's concerns, we remind her that this is not a unique or unprecedented situation. In the past, this Office has been called upon to review appeals under other circumstances which were less than ideal. For example, in OAG 91-35, the Attorney General was asked to review a denial of an open records request by his own records custodian. There, we acknowledged:
A request for an Attorney General's opinion concerning a denial of an open records request by the Attorney General's own custodian of records creates an obvious and unavoidable conflict of interest. We can only assure the appealing party that we have endeavored to research the law thoroughly and to apply that law to the facts presented without favoritism or bias.
Also, if this matter is appealed to the appropriate circuit court - which could have been done without requesting the opinion - that court will make a de novo review of the evidence. See KRS 61.882(2) and (3). Therefore this opinion will not prejudice the requesting party in any way.
OAG 91-35, at p.3. See also, OAG 78-639. Unless and until this problem is brought to the attention of the General Assembly, and provision is made for independent review under circumstances such as those presented here, the Attorney General may not delegate his statutory duty, but must proceed with a review of the appeal.
The Board of Medical Licensure invoked KRS 61.878(1)(a), the privacy exemption, to authorize nondisclosure of the neuropsychological and psychiatric evaluations performed on Dr. Lange. In OAG 91-35, a copy of which is enclosed, we engaged in a lengthy analysis of this exemption, recognizing that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every citizen in the Commonwealth of Kentucky." Preamble, Open Records Act. KRS 61.882(4) mandates that in reviewing open records appeals, a court:
[S]hall take into consideration the basic policy of KRS 61.870 to 61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
Nevertheless, the Open Records Act does not authorize unrestricted access to public records, but exempts certain categories of records, including:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 61.878(1)(a). In
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981), the Kentucky Court of Appeals adopted a balancing test, for purposes of analyzing a claimed privacy exemption, which largely mirrors that test adopted by the federal courts in analyzing the analogous exemption under the Freedom of Information Act, 5 U.S.C. § 552(b)(6). That test requires a balancing of the public's interest in disclosure of personal information contained in public documents against the potential invasion of individual privacy, measured by the standards of a reasonable man. Board of Education, supra at 111. Unlike its federal counterpart, however, the test adopted by Kentucky courts does not require that the balance be tilted toward disclosure. Id.; see also, OAG 91-35. In applying this test, it is necessary to determine whether a privacy interest exists, how substantial that interest is, and whether the public interest in the private information, under the circumstances of the case, is sufficiently important to warrant the invasion of privacy resulting from disclosure.
It is widely recognized that medical records, including psychological and psychiatric evaluations, contain highly private information, and that their release would normally constitute an unwarranted invasion of privacy.
Public Citizen Health Research Group v. Department of Health, Education and Welfare, 477 F.Supp. 595 (D.D.C. 1979), rev'd on other grounds, 668 F.2d 537 (D.C.Cir. 1981);
Plain Dealer Publishing Co. v. U.S. Department of Labor, 471 F.Supp. 1023 (D.D.C. 1979); Board of Education, supra. This is based on the confidential relationship between a physician and his or her patient, which is reduced to written form in the "intimate details of the individual's medical file." Public Citizen Health, supra at 603. Given the adverse effects which might result from the disclosure of psychological and psychiatric evaluations, including harassment, embarrassment, and professional ruin, this interest must be considered a substantial one, which can only be defeated by a greater public interest.
At first glance, the public interests which might be asserted do not appear weighty. Ms. West requests release of the evaluations to assist her in her defense of her client, i.e., to advance a private interest, as opposed to a public interest. Generally, the courts have been unwilling to release records containing highly personal information, if the private purpose asserted does not advance a broader public purpose. On closer inspection, however, a broader public purpose can be discerned. Clearly, the public has a direct interest in the proper adjudication of criminal proceedings. If release of the records sought by Ms. West will permit her to present all of the relevant facts to the judge who is responsible for reviewing her motion, this interest will be served. Additionally, the public has an interest in knowing whether the agency, here the Kentucky Board of Medical Licensure, charged with the responsibility of overseeing and disciplining its licensees, is carrying out its duties. To the extent that the records sought reveal that the Board is, or is not, discharging its duties, the public interest is again served.
Although the importance of these public purposes should not be underestimated, we conclude that the Board properly denied Ms. West access to Dr. Lange's psychological and psychiatric evaluations. A privacy interest of the magnitude of that at issue in this appeal can only be overcome by an even greater public interest. In the present case, the benefit which would inure to the public by virtue of the release of these records does not outweigh the privacy interest. Ms. West is aware of the nature of the charges against Dr. Lange, and the action taken by the Board of Medical Licensure based on those charges. While she is not aware of the specific diagnosis, or the nature of the communications between Dr. Lange and the psychologist and psychiatrist who evaluated him, she has gathered sufficient new evidence to proceed with her motion. Similarly, the public interests have been served by release of the documents reflecting the actions taken by the Board, short of release of the psychological and psychiatric evaluations.
It is therefore the opinion of the Attorney General that the Kentucky Board of Medical Licensure acted consistently with the Open Records Act in relying on KRS 61.878(1)(a) to deny Ms. West access to Dr. Lange's psychological and psychiatric evaluations.
As required by statute, a copy of this opinion will be mailed to the appealing party, Ms. Linda West, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).