Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Office of the Attorney General's denial of Dennis R. McGlincy's May 19, 1997, request for "information pertaining to the identity of the doctors that Stephen Parks was seeing during 1992." The question presented in the appeal is whether the Attorney General properly relied on KRS 61.878(1)(a) and (l), the latter exception incorporating KRS 218A.230(4) and KRS 315.121 (2)(b) and (i) into the Open Records Act, in denying Mr. McGlincy access to this information. For the reasons which follow, we conclude that the Attorney General's response was procedurally deficient, and that he failed to meet his statutory burden of proof relative to the invocation of KRS 61.878(1) (a). We further conclude that the Attorney General's reliance on KRS 315.121(2)(b) and (i) was misplaced. Nevertheless, we find that the Attorney General properly denied Mr. McGlincy access to records containing the information he seeks on the basis of KRS 61.878(1)(l) and KRS 218A.230(4).
We begin by acknowledging that "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." OAG 91-35, p. 3. In conflicts of interest, our primary duty is always to the people of the Commonwealth. Comm. ex rel. Hancock v Paxton, Ky., 516 S.W.2d 865, 866 (1974). The General Assembly has given us the duty to be the first level of appellate review in open records appeals. KRS 61.880(2). The General Assembly, of course, has the power to give us additional duties to carry out in its discretion. Ky. Const. Sec. 91; and Brown v Barkley, Ky., 628 S.W.2d 616, 621, n.10 (1982). Therefore, we resolve the conflict in this instance by deciding the appeal before us.
In this appeal, as in past appeals involving Attorney General review of his agency's denial of an open records request, we "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." OAG 91-35, p. 3. KRS 61.880(2) "directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial." OAG 92-10, p. 4. We strive to maintain absolute impartiality in discharging this duty.
Turning to the procedural irregularities in this appeal, we direct the parties' attention to KRS 61.880 (1) which contains specific guidelines for agency response to a request under the Act. That 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.
The Attorney General's response to Mr. McGlincy's request was procedurally deficient in several respects.
In construing the obligations of public agencies under the cited provision, this office has observed:
In general, a public agency cannot postpone or delay this [three day] statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or are otherwise unavailable, the agency must "immediately so notify" the requester, and designate a place, time, and date for inspection "not to exceed" three days from receipt of the request, "unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. " KRS 61.872(5).97-ORD-2, p. 4; see also, 96-ORD-186; 96-ORD-168; 95-ORD-105; 93-ORD-134; 93-ORD-109; 93-ORD-43; OAG 92-64; OAG 89-79.
Mr. McGlincy's request was submitted on May 19, 1997. Within the statutorily mandated three business days, the Attorney General contacted him by telephone to advise him that the office was "searching for the file and . . . would respond as soon as [it was] located and reviewed." On June 16, some 19 days after Mr. McGlincy made his request, the Attorney General notified him in writing that his request was denied. The Attorney General erred in failing to respond in writing and within three business days to Mr. McGlincy's request, and in failing to provide "a detailed explanation" of the cause of the delay. KRS 61.880(1); KRS 61.872(5). An oral communication does not satisfy the requirements of the statute; nor does the practice of indefinitely extending the statutory deadline for agency decision relative to a request. Unless either KRS 61.872(4) or (5) is properly invoked, public agencies must comply with the procedural requirements of the Open Records Act by responding in writing, and within three business days, to records requests, and determining whether the records sought will be released.
With respect to the substantive issues in this appeal, we note that the Office of the Attorney General was not obligated to honor Mr. McGlincy's request because it was technically a request for information. He requested "information pertaining to the identities of doctors. " At page 2 of 95-ORD-131, this office observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "open records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request." OAG 89-77, p. 4.
Simply stated, "The purpose of the Open Records Law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. These principles notwithstanding, the Attorney General elected to treat Mr. McGlincy's request as a properly framed open records request, and to proceed to a determination whether records containing the information sought should be released.
In reaching the decision to deny Mr. McGlincy's request, the Attorney General relied on KRS 61.878 (1)(a), KRS 61.878(1)(l), and two separate provisions of the Kentucky Revised Statutes, KRS 315.121(2)(b) and (i) and KRS 218A.230(4), which are incorporated into the Open Records Act by the latter provision. Although we are not persuaded that the Attorney General met his statutory burden of proof in relying on KRS 61.878(1)(a), or that he properly relied on KRS 315.121(2)(b) and (i), we find that he is prohibited from disclosing pharmacy records containing the names of doctors who saw Stephen Parks in 1992 by operation of KRS 218.230(4). We address the applicability of each of the cited exceptions in turn.
KRS 61.878(1)(a) 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 1992 the Kentucky Supreme Court established a standard by which to judge the propriety of a public agency's invocation of this exception. Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the court held that "there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests." Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327, 328 (1992). The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328.
In Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals elaborated on this "mode of decision":
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Board of Examiners ] at 327.
The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 828.
With these principles in mind, we turn to the question presented in this appeal: Whether the Attorney General properly relied on KRS 61.878(1)(a) in denying Mr. McGlincy's request for the identities of doctors that Stephen Parks was seeing in 1992. Because the Attorney General failed to establish that disclosure of this information would constitute a clearly unwarranted invasion of personal privacy, we find that he did not satisfy his statutory burden of proof. KRS 61.880(2)(c).
In his June 16 response to Mr. McGlincy's request, the Attorney General asserted that "under KRS 61.878(1)(a), prescription records clearly contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The Attorney General did not elaborate. In a follow-up letter dated July 14, 1997, the Attorney General responded to the arguments Mr. McGlincy advanced in his appeal, observing:
Mr. McGlincy's second argument is in essence that the public's interest in knowing the names of a person's doctors "clearly outweighs" that person's interest in keeping the names of his doctors private. In fact, usually the opposite is true. Most persons consider the names of their doctors to be private and confidential. Under KRS 315.121(2)(b) and (i), patient information in pharmacies' records is confidential. KRS 315.010 defines that "confidential information' means information which is accessed or maintained by a pharmacist in a patient's record. . . ."
Although the Attorney General established that the subject information is of a personal nature, he did not establish that disclosure would constitute a clearly unwarranted invasion of personal privacy by demonstrating that the privacy interests implicated by disclosure are superior to the public's interest in monitoring agency action. As we have so often noted, "Mere invocation of the exception supported by bare allegations, without an adequate explanation of how the exception applies to the record withheld, does not satisfy the burden of proof imposed on the agency by KRS 61.880(2)[(c)]." 93-ORD-86, p. 6. Having failed to offer an adequate explanation of how KRS 61.878(1)(a) applies to records containing the identities of doctors that Stephen Parks saw in 1992, we conclude that the Attorney General did not meet his burden of proof relative to invocation of this exception.
Nor are we persuaded that KRS 315.121(2)(b) and (i) authorize nondisclosure of these records. These provisions, which, as noted, are incorporated into the Open Records Act by operation of KRS 61.878 (1)(l), state:
(2) Unprofessional or unethical conduct includes, but is not limited to, the following acts of a pharmacist or pharmacist intern:
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(b) Divulging or revealing to unauthorized persons patient information or the nature of professional services rendered without the patient's express consent or without order or direction of a court.
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(i) Accessing or attempting to access confidential patient information for persons other than those with whom a pharmacist has a current pharmacist-patient relationship and where such information is necessary to the pharmacist to provide pharmacy care.
These provisions are found in Chapter 315 of the Kentucky Revised Statutes the purpose of which:
is to promote, preserve, and protect public health, safety, and welfare by and through effective control and regulation of the practice of pharmacy; the licensure, control, and regulation of all sites or persons who are required to obtain a license or permit from the Board of Pharmacy, whether located in or outside the Commonwealth, that distribute, manufacture, or sell drugs within the Commonwealth.
The specific provision cited relates to "Grounds for acting against licensee [s]." Insofar as the Attorney General is not a licensee of the Board of Pharmacy, he is not bound by rules of ethical conduct relating to licensees, and cannot properly rely on such a rule to authorize nondisclosure of records in his custody which list prescription information including doctors' names. We therefore find that the Attorney General's reliance on KRS 61.878(1)(l) and KRS 315.121(2)(b) and (i) was misplaced.
Nevertheless, it is our opinion that the Attorney General properly withheld the disputed records pursuant to KRS 61.878(1)(l) and KRS 218A.230(4). The latter statute provides:
Prescriptions, orders, and records, required by this chapter, and stocks of controlled substances, shall be open for inspection only to federal, state, county, and municipal officers, whose duty it is to enforce the laws of this state or of the United States relating to controlled substances.
Pursuant to this statute, records of controlled substances received are made confidential as to all persons except federal, state, county, and municipal officers. Such records, though they are in the custody of the Attorney General for investigative purposes, are excluded from inspection by the public. This absolute prohibition operates to restrict access to the records containing the information sought in their entirety. We therefore find that the Attorney General properly relied on KRS 61.878 (1)(l) and KRS 218A.230(a) in denying Mr. McGlincy access to these records, and in refusing to release a redacted copy of these records per KRS 61.878(4) or make available for inspection records which would yield the information sought. Since these records are apparently the only records in the Attorney General's custody which contain the identities of doctors that Stephen Parks saw in 1992, and since these records have been "made confidential by enactment of the General Assembly," we find that the Office of the Attorney General properly withheld them.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.