Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Kentucky Community & Technical College System's (KCTCS) denial of Pamela E. Sapp's open records request to receive copies of certain pages of a 14-page fax which were not disclosed to her.
In her letter of appeal, Ms. Sapp stated that on March 11, 1999, in response to an open records request she had made to KCTCS, she received two OSHA 200 forms. The forms had printing at the top which indicated they were part of a 14-page fax which had been sent to KCTCS by Workforce Development Cabinet.
On March 12, 1999, Ms. Sapp, by fax, requested a copy of all the other "pages of the fax, except pages 13 and 14. Include cover sheet, cover letter, etc." [Pages 13 and 14 were the two OSHA 200 forms she had requested.]
By letter dated March 15, 1999, Sandra Gubser, Custodian of Records for KCTCS, responded to Ms. Sapp's March 12, 1999 request, stating:
In response to your March 12, 1999, fax, you were provided with all public records requested in your March 4, 1999, open records request. The other documents included in the fourteen (14) page March 5, 1999, fax to KCTCS are records that were denied in Open Records Request No. 99-096; are medical records for an individual that you are not entitled to inspect under KRS 61,878(1)(a); or involve other records provided to KCTCS that do not relate directly to your March 4, 1999, open records request.
On March 19, 1999, Ms. Sapp renewed her request, indicating she understood Ms. Gubser's reasoning for withholding confidential records which pertained to an employee's injury and she had no problem with the decision not to release them. However, she again requested copies of all other pages of the fax. On March 25, 1999, Ms. Sapp sent a reminder to Ms. Gubser that she had not yet received the other pages of the fax.
By letter dated March 30, 1999, Ms. Gubser responded to Ms. Sapp's request of March 19, 1999 and follow up letter of March 25, 1999. In her letter, Ms. Gubser, stated in part:
This office previously advised you on March 15, 1999, that records included in the fourteen (14) page fax dated March 5, 1999, were denied because the records were medical related records that you are not entitled to inspect under KRS 61.878(1)(a). Pages 13 and 14 were mailed to you on March 15, 1999. Additionally, the Kentucky Open Records Law requires, among other things, that an applicant for records precisely describe the public records to be sent. Your request does not meet this requirement. Therefore, this request is also denied pursuant to KRS 61.872(3)(b).
After receipt of the letter of appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, James M. Baker, Legal Counsel, KCTCS, provided this office with a response to the issues raised in the appeal. In his response, Mr. Baker explained that on March 4, 1999, Ms. Sapp, in part, requested records relating to Debra Lemaster's workplace injury. By letter of March 9, 1999, KCTCS denied the request for records relating to Ms. Lemaster's injury, pursuant to KRS 61.878(1)(a) and Zink v. Commonwealth of Kentucky, Department of Workers' Claims, 902 S.W.2d 825 (1994). Regarding the other pages contained in the 14-page fax, Mr. Baker stated that, other than the two pages provided Ms. Sapp and Ms. Lemaster's medical related records, the remaining records which included nonmedical records contained in Ms Lemaster's personal Workers' Compensation Claim file were properly denied under the privacy exemption and the authorities cited in the agency's previous responses.
The issue before us is whether the KCTCS's denial of Ms. Sapp's request for the other 12 pages of the 14-page fax was proper under the Open Records Act. For the reasons that follow, we conclude that the agency's denial was consistent in part and inconsistent in part with the Act.
We address first the issue of whether Ms. Sapp's request for the other pages of the 14-page fax was vague. We conclude, that in the context of the instant case, her request was sufficiently specific to enable the KCTCS to know what documents she was seeking. The agency's reliance upon KRS 61.872(3)(b) in denying Ms. Sapp's request is misplaced and inapposite to the instant appeal.
We next consider the KCTCS's reliance upon KRS 61.878(1)(a) to withhold the other pages from the fax. KRS 61.878(1)(a) provides for 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.
An agency can properlywithhold a record under this exception only if it can establish that "the subject information is of a 'personal nature' ? [and that] public disclosure would constitute a clearly unwarranted invasion of personal privacy. " Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994) citing Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky. 826 S.W.2d 324 (1992). "This latter determination," the court observed in Zink:
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. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The basis for denial must therefore be "articulated in terms of the requirement of the statute." OAG 89-20, p. 3.
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 in sustaining its action imposed on the agency under KRS 61.880(2)(c).
Our in camera review of the first 12 pages of the 14-page fax revealed the following categories of or types of records: fax cover page (1 page), Workers' Compensation - First Report of Injury or Illness (1 page), Employee Work Status Form - Neurosurgical Consultants (1 page), Certificate to return to work or school (1 page), Cover letter requesting Ms. Lemaster to complete a Cabinet for Workforce Development Accident Report Form and to attach a doctor's statement (1 page), Cabinet for Workforce Development Accident Report Form w/ additional comments (3 pages), copy of outside of an envelope addressed to Ray Gillaspie, Director, Owensboro/Daviess County Campus from Ms. Lemaster (1 page), Copy of KRS 342.038 - Employer to keep record of injuries - Reports to be filed and a handwritten note from Ms. Lemaster to Mr. Gillaspie requesting a copy of the report [required to be filed by KRS 342.038] (2 pages), Request by Ms. Lemaster to Mr. Gillaspie for a copy of the Workers Compensation First Report of Injury submitted to Workers Compensation for her work-related injury.
The KCTCS fails to substantiate how disclosure of copies of the fax cover letter, the cover letter requesting Ms. Lemaster to complete an Accident Report Form, the envelope addressed to Mr. Gillaspie, and Ms. Lemaster's note on a copy of KRS 342.038 and her letter to Mr. Gillaspie requesting a copy of the First Report of Injury, would constitute an unwarranted invasion of privacy. We conclude they were improperly withheld under KRS 61.878(1)(a) and should be made available to Ms. Sapp.
We address next the nondisclosure of the Workers' Compensation - First Report of Injury or Illness record. This was the exact record which was involved in Zink v. Commonwealth of Kentucky, supra. There, the court concluded that the Commonwealth of Kentucky, Department of Workers' Claims, properly relied on KRS 61.878(1)(a) in denying the requester full inspection of the injury report forms of private citizens filed with the Department which contained information including marital status, number of dependents, wage rate, social security number, home address, and telephone number. The court emphasized that "at its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct." Zink at 829. Because no public interest would be served by disclosure of the personal information on the injury report forms in which applicants for workers' compensation benefits had a cognizable privacy interest, that information could properly be withheld.
In the instant case, the First Report of Injury relates to an injury of a public employee in a public agency's workplace. Release of this report would provide at least some information as to how the public agency handles its workplace injuries and safety of its employees. However, information of a personal nature, the release of which is generally recognized as an unwarranted invasion of personally privacy, such as marital status, number of dependents, date of birth, social security number, home address, and home telephone number, could properly be redacted from the report under KRS 61.878(1)(a).
In Zink , in lieu of allowing full inspection of the First Report of Injury form, the Department provided Mr. Zink with a computer print-out showing the name, date of injury, injury code and part of the body injured, and days of work missed for each of the reported injured workers. Accordingly, we conclude that a copy of the report should be provided Ms. Sapp with the personal information described above redacted. Since the instant record involves a public employee rather than a private citizen, her salary would be subject to public inspection. 97-ORD-66.
The same result would apply to the Workforce Development Accident Report. Since this is the report of an injury to a public employee in a public workplace, disclosure would also provide information as to how the public agency handles its workplace injuries and safety of its employees. We conclude that Ms. Sapp would be entitled to a copy of the accident report with the personal information redacted. KRS 61.878(4).
The remaining two pages at issue are the Employee Work Status Form - Neurosurgical Consultants and the Certificate to return to work or school. Both of these records are records signed by physicians indicating the public employee may return to work.
This office has held in the past that release of medical records containing personal and highly private information, e.g., those containing psychological and psychiatric evaluations, would normally constitute an unwarranted invasion of privacy. OAG 92-10.
In our view, the records here, although signed by physicians, do not constitute typical medical records which contain personal or sensitive medical information of which an individual has an expectation of privacy. They are records presumably to be submitted to the public agency indicating that the health of the public employee, injured in the workplace, was such that she was authorized by attending physicians to return to work. The KCTCS has not established that these records are exempt, in their entirety, from disclosure under KRS 61.878(1)(a) and they should be provided for Ms. Sapp's inspection. However, personal information in the records, such as social security number, home address and telephone number, should be redacted prior to disclosure. KRS 61.878(4).
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.