Request By:
Mr. Paul K. Turner
P.O. Box 627
21 Weber Street
Hopkinsville, Kentucky 42241-0627
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
You have requested that this Office re-examine its position on an issue relating to open records. Specifically, you ask that we reverse a series of prior opinions in which we held that a public agency may adopt a policy of nondisclosure relative to ambulance run reports. You explain that, based on this Office's prior opinions, the City of Hopkinsville has adopted a policy prohibiting release of ambulance run reports. It is your position that the Attorney General has erroneously equated ambulance run reports with medical records, which are generally exempt from public inspection pursuant to KRS 61.878(1)(a), and that a policy of blanket exclusion vis-a-vis the reports violates the Open Records Law. Elaborating on the view, you observe:
I believe the argument can be made that when one requests emergency help from a government agency, they waive a certain amount of right to privacy. Obviously, medical information relating to conditions of victims of injuries may be revealed as the result of fire department runs and police department runs which no one claims to be exempt from the Open Records Law.
Although you acknowledge that there may be occasion when information contained in an ambulance run report implicates privacy concerns, you believe that the remote possibility of civlil liability for release of such records does not justify a policy of nondisclosure.
In OAG 76-568, OAG 83-344, OAG 86-25, and OAG 88-42, this Office held that although there is no law which requires that ambulance run reports be kept confidential, a public agency may adopt a policy of confidentiality under KRS 61.878(1)(a). That provision authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In OAG 83-344, we held that this exception's protection extends to the name, address, and age of the person being transported by the ambulance service, where the person was picked up, where the person was taken, and the nature of the run. Applying the balancing test formulated by the Kentucky
Court of Appeals in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981), we could "see no compelling reason why the interest of the public to know all the aforementioned requested information on an ambulance run outweighs the right of the individual involved to personal privacy. " OAG 83-344, at p. 2 This reasoning was extended to fire department runs in OAG 86-25, and ambulance runs involving public officials in OAG 88-42.
Until very recently, the Kentucky Supreme Court had reviewed only one case in which the privacy exemption was raised in the context of an open records appeal. Accordingly, our analysis of appeals involving KRS 61.878(1)(a) was based on the rule announced in Board of Education, supra, and prior opinions of this Office as applied to the specific facts of each case. However, in March 1992, the Supreme Court issued an opinion in which it engaged in a lengthy examination of the privacy exemption. In kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company , Ky., 39 K.L.S. 3, p. 22 (03/12/92), the Court determined that disclosure of information contained in a complaint file maintained by the Board of Examiners would constitute a clearly unwarranted invasion of personal privacy. It is instructive to quote at length:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
39 K.L.S. 3, p. 24.
With respect to the public purpose served by the release of records of a public agency, the Court observed:
The public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
39 K.L.S., p. 24. The fundamental purpose of a public ambulance district is to assure public safety and welfare by providing effective emergency service for the residents of the district. Thus, the public's interest is served by the release of only those records which demonstrate that the ambulance service district is fulfilling its intended purpose, such as, for example, the number of runs made. The release of records of this nature permits the public to monitor the operations of an ambulance service.
The countervailing privacy interest is easily identifiable. Although this Office has never equated the information contained in an ambulance run report with the information contained in a medical record, we recognize that both are likely to disclose "personal features of private lives," Board of Examiners , supra at p. 24, including the nature of an illness or the circumstances under which an injury was inflicted. Moreover, the disclosure and publication of the identity of an individual transported to a hospital or treatment facility renders that individual vulnerable to "certain predatory types such as thieves and con artists." OAG 76-568, at p. 2. These interests are weighty indeed, and should not be easily discounted.
In Board of Examiners , supra at 24, the Supreme Court admonished, "[T]he policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." See also ,
City of St. Matthews v. Voice of St. Matthews, Ky., 519 S.W.2d 811, 815 (1974). In our view, that purpose is not served by the release of information which touches on the private lives of individuals who avail themselves of the service provided by the ambulance district. Given the magnitude of the countervailing privacy interests, we reaffirm our prior position that a public agency may adopt a policy of confidentiality relative to ambulance run reports to the extent that they contain personal information the disclosure of which would constitute a clearly unwarranted invasion of privacy. This includes, but is not limited to, the name, address, and age of the person being transported, as well as the nature of his or her illness or injury. However, we do not believe that information of a general nature, such as the number of runs made, the destination of the runs, whether an individual or individuals were transported to a hospital or treatment facility, and if so, where they were taken falls within the parameters of the privacy exemption. Although we can see no reason why the public must be apprised of the patient's identity or his or her medical condition, it is our opinion that a public agency must release general information on the number of runs made by an ambulance service, the destination of the runs, whether an individual or individuals were transported to a hospital or treatment facility, and if so, where they were taken. Such a policy subserves the public interest, and at the same time, protects the individuals' privacy interests as well. To the extent that OAG 76-568, OAG 83-344, OAG 86-25, and OAG 88-42 are inconsistent with this position, they are modified accordingly.
It is therefore the opinion of the Attorney General that the city may elect to release all of the information contained in an ambulance run report, since the exceptions to the Open Records Act are discretionary. In the alternative, the City may release a sanitized version of its ambulance run reports or prepare a summary of those reports containing only the general information set forth above, and continue to withhold information of a personal nature which appears in the reports.