Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky violated the Open Records Act in responding to Amita Rastogi's January 28, 1998, request for additional records pertaining to her employment status. For the reasons set forth below, we find that the University's response was consistent, in part, and inconsistent, in part, with the Open Records Act. Because Dr. Rastogi's appeal raises records management issues which are not capable of resolution under the Act, we refer those issues to the Department for Libraries and Archives for a determination whether additional inquiry is warranted under Chapter 171 of the Kentucky Revised Statutes.
Dr. Rastogi confines her appeal to two categories of documents which she identifies as follows:
1. Records in Ms. Gay Elste's possession . . . concerning surgeries [Dr. Rastogi] performed during [her] tenure at the Veterans Affairs Hospital that may not be subject to the restrictions of VA Quality Assurance Data by federal statute 38 USC § 5705 [and other] records relating to [Dr. Rastogi] held in Gay Elste's office or other legal departments of the University, pursuant to . . . 97-ORD-161.
2. Records . . . required to have been created in regard to [Dr. Rastogi's] Clinical Title Series Assistant Professor Appointment pursuant to University Regulations on Clinical Series Faculty and Gov. Reg. VII.B.5[.]
With respect to records documenting the creation of her position, Dr. Rastogi notes that these records have a direct bearing on her financial and legal rights, and that the University's failure to locate, or more fundamentally, to create such records, impairs her ability to preserve these rights. She questions the adequacy of the University's search, observing that the University documents no effort to locate the records in the King Library archives depository where records are sent, under UK records management procedures, prior to being destroyed.
In a letter dated February 3, 1998, the University's custodian of records, George J. DeBin, responded to Dr. Rastogi's open records request. In denying her request for records in Gay Elste's possession concerning surgeries which Dr. Rastogi performed during her tenure at the Veterans Affairs Hospital that are not subject to the confidentiality provision found in 38 USC § 5705, Mr. DeBin neither confirmed nor denied the existence of such records. He stated that Ms. Elste retained "routine morbidity and mortality reviews" provided by the VA which could not be released to Dr. Rastogi pursuant to 38 USC § 5705. Ms. Elste also retained "credentialing information which [had] previously been provided" to Dr. Rastogi, but which would be released again in a file labeled "VA Correspondence (chronological order)." Mr. DeBin also denied her request for records in Ms. Elste's possession or in the possession of other legal offices at the University which were declared nonexempt in 97-ORD-161, explaining:
There are no records responsive to this request. The only records which address creation of a clinical title series position have already been provided.
In a subsequent response, Mr. DeBin indicated that the University had reviewed the original files previously provided to Dr. Rastogi, and found no records satisfying her request. He concluded that since records concerning faculty members are maintained in files labeled with the faculty member's name, the absence of such records in files labeled with Dr. Rastogi's name established that no such records exist.
In a follow-up letter to this office, Mr. DeBin elaborated on the University's position:
Dr. Rastogi is appealing the denial of "Documents held by Ms. Gay Elste." Her expanded description of these records includes the VA QA data in Ms. Elste's possession.
As we have previously stated, the VA QA data is exempt from disclosure pursuant to KRS 61.878(1)(k) and 38 USC § 5705. She goes on to say in her appeal that Ms. Elste's " use " of these records may have been outside the scope of federal law. I am not certain what Dr. Rastogi means by that statement. Ms. Elste's temporary possession of the records was as a result of our required search for records in response to one of Dr. Rastogi's Open Records requests. The VA QA date which Ms. Elste had in her possession was part of the Department of Surgery file that was turned over for Ms. Elste's review in assisting me in responding to Dr. Rastogi's Open Records request. That is the only reason Ms. Elste had possession of the VA QA data.
Dr. Rastogi also states in her appeal that Ms. Elste may have possession of records relating to Dr. Rastogi's EEO complaint. Please be advised that Ms. Elste is not the custodian of those records. We have provided Dr. Rastogi with all non-exempt records relating to her.
Mr. DeBin reaffirmed the University's denial of Dr. Rastogi's request for records documenting the creation of her position, noting that "documentation of the rationale for any appointment for any position held by Dr. Rastogi within the College of Medicine has already been provided to her." We examine the propriety of the University's responses below.
Records in the possession of Gay Elste
In 97-ORD-161, this office held that Dr. Rastogi was not entitled to inspect VA Medical Center quality assurance materials on the basis KRS 61.878(1)(k) and 38 USC § 5705(a). At page 13 and 14 of that decision, we observed:
38 USC § 5705(a) provides that "records and documents created by the Department [of Veterans' Affairs] as part of a medical quality-assurance program . . . are confidential and privileged and may not be disclosed to any person or entity except as provided in subsection (b) of this section." The term "medical quality-assurance program" is defined as "a Department systematic health-care review activity designated by the Secretary to be carried out by or for the Department [for the purpose of improving the quality of medical care or improving the utilization of health-care resources in Department health-care facilities]." 38 USC § 5705(c)(2). The exceptions to the general rule of nondisclosure are found at 38 USC § 5705(b)(1)(A) through (D) which provide that the materials can only be disclosed:
(A) To a federal agency or private organization, if such record or document is needed by such agency or organization to perform licensing or accreditation functions related to Department health-care facilities or to perform monitoring, required by statute, of Department health-care facilities.
(B) To a Federal executive agency or provider of health-care services, if such record or document is required by such agency or provider for participation by the Department in a health-care program with such agency or provider.
(C) To a criminal or civil law enforcement governmental agency or instrumentality charged under applicable law with the protection of the public health or safety, if a qualified representative of such agency or instrumentality makes a written request that such record or document be provided for a purpose authorized by law.
(D) To health-care personnel, to the extent necessary to meet a medical emergency affecting the health or safety of any individual.
Dr. Rastogi does not fall within any of these exceptions to the general rule of confidentiality, and she is therefore not entitled to inspect the materials which are in the hands of the University but are shielded from disclosure by the federal statute. How or under what authority the University came into possession of the quality assurance materials is unclear. It is, however, clear that if the University discloses the material, it can be "fined not more than $ 5,000 in the case of a first offense and not more than $ 20,000 in the case of a subsequent offense." 38 USC § 5705(e). We therefore find that the University of Kentucky properly withheld the materials.
Dr. Rastogi did not appeal this decision, and it therefore has the force and effect of law. KRS 61.880 (5)(b).
In the appeal before us, Dr. Rastogi did not request the VA Quality Assurance materials. Instead, she requested records not shielded form disclosure by federal law which are in Ms. Elste's custody and which reflect how those materials were used by the University in making its decision on the question of Dr. Rastogi's privileges. Mr. DeBin neither confirmed nor denied the existence of such records, but expressed confusion about what Dr. Rastogi means. Consistent with the position set forth in 97-ORD-161, we find that this request was sufficiently specific to warrant an unequivocal request. If, as Mr. DeBin subsequently insisted, these materials came into Ms. Elste's custody only as a result of an open records request submitted by Dr. Rastogi, after the decision not to extend privileges to her had been made, he should have so advised in his February 3 response. In this case, the materials could not have been used in making the decision, and no records would exist reflecting how Ms. Elste used them. Because the University failed to advise Dr. Rastogi that no records exist which satisfy this portion of her request, we find that its response was deficient.
We also find that the University's response to Dr. Rastogi's request for records relating to her which are in the possession of Gay Elste, or other legal offices within the University, and declared nonexempt in 97-ORD-161, was deficient. In 97-ORD-161, this office held that the University failed to demonstrate that the three elements necessary for invocation of the attorney-client privilege were present in these records. At page 12, we observed:
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c). This position finds support in Edmondson v. Alig , [Ky. App., 926 S.W.2d 856 (1996)]. Construing KRS 61.880(1), the Court of Appeals noted that "the language of the statute directing agency action is exact." Edmondson at 858. The Court then made the statement quoted above, that the statute requires "particular and detailed information" in response to a record request, and a "limited and perfunctory response" does not "even remotely comply with the requirements of the Act--much less . . . amount [] to substantial compliance." Id.
The University did not appeal this holding, and, again, it has the force and effect of law. KRS 61.880 (5)(b). It is therefore unclear to this office why the University continues to withhold records in Ms. Elste's custody which satisfy this description. Having failed to appeal 97-ORD-161, the University had no alternative but to release the records.
In his February 3, 1998, response, Mr. DeBin stated that all records relating to Dr. Rastogi had been released to her "except as explained in [his] letter dated November 25, 1997 relating to documents subject to the Attorney Client privilege. . . ." This office has not been furnished with a copy of this letter, which was prepared after 97-ORD 161 was issued. We do not know its contents. We are confident, however, that short of initiating an appeal in circuit court challenging the Attorney General's decision in 97-ORD-161, nothing could alter the outcome of that appeal relative to records improperly withheld under the attorney-client privilege. Since it apparently has not already done so, the University should arrange for Dr. Rastogi to inspect these records.
Records documenting the creation of Dr. Rastogi's position
As noted above, Dr. Rastogi also requested records pertaining to her appointment as a Clinical Title Series assistant professor. Citing various University regulations, she argued that such records must be maintained. The University responded by furnishing her with records relating to the lower ranking clinical instructor position, and asserting that no other records responsive to her request exist. With respect to these records, we find that although the University cannot be said to have violated the Open Records Act by failing to produce apparently nonexistent records, its failure to create such records raises records management issues which can only be resolved by the Department for Libraries and Archives.
Consistent with the rule announced in 98-ORD-5, we find that the University of Kentucky's failure to produce these records did not constitute a violation of the Open Records Act. Nevertheless, we refer this matter to the Department for Libraries and Archives for a determination whether additional inquiry as to records management is warranted. The rationale underlying this position is set forth at pages 3 through 7 of 98-ORD-5, a copy of which is enclosed, and the reasoning of which is incorporated by reference.
The University's inability to produce these records also raises the issue of the adequacy of its search. Dr. Rastogi notes that records scheduled for destruction are sent to the King Library archives depository, but that there is no evidence in the record suggesting that the University searched this location prior to denying her request. In its responses, the University does not indicate that it made any effort to locate these records in the archives depository, or present an argument that this search method could not reasonably be expected to produce the requested records. Since this is the standard established by the Attorney General in 95-ORD-96 for determining the adequacy of an agency's search, we find that the University did not conduct an adequate search for the records, and that it is obligated to ascertain whether the records identified in this portion of Dr. Rastogi's request may have been created, but have since been moved to the archives depository for destruction.
Conclusion
We reiterate that many of the issues which Dr. Rastogi raises cannot be resolved under the Open Records Act, but that these same issues may properly be addressed by the Department for Libraries and Archives. Again, we acknowledge the narrow limits of our role under the Act, and hold that the University's failure to produce apparently nonexistent records in response to the second part of Dr. Rastogi's request did not constitute a violation of the Act. Nevertheless, we believe that because the University did not appeal 97-ORD-161, it is obligated to comply with the decision by releasing records in Gay Elste's possession which satisfy the first part of Dr. Rastogi's request.
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.