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 actions of the Volunteers of America relative to a series of open records requests by Tresa Croney White, D.M.D. for copies of all records obtained and maintained on her husband James Michael White while he was a resident at the facility during June 28, 1999 through July 3, 1999.
In a letter dated December 6, 1999, G. Henry Shemwell, Program Manager, Volunteers of America, advised Dr. White, in relevant part:
As far as receiving a copy of a file that exists we will be obliged to send all records after receiving a release of information that complies with Federal Law, CFR 42, section B. A copy of a release that complies with this federal statute is enclosed with this letter. Please return the release to me, signed by the appropriate parties, and all information will be forwarded to the ex client as soon as it is received.
By letter dated December 30, 1999, Dr. White advised this office that on December 16, 1999, she had forwarded an open records request form and a money order to the Volunteers of America requesting information omitted from her original July 13, 1999 open records request and she had received no response to this request. The December 16, 1999 request was signed by James Michael White and made the following request:
Please forward the packet of information sent to V.O.A. by the Parole Officer and/or Offender Rehabilitation Specialist which includes:
1. Copy of Client History
2. Summary of client's treatment history
3. Information on what is available for aftercare
4. Release information for V.O.A. and P.O.
5. And all test results forwarded by P.O. to V.O.A.
Mr. White asked that the information be forwarded to Dr. White.
Because the Volunteers of America is under contract to provide services for the Department of Corrections and as authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a supplemental response to Dr. White's open records requests and the issues raised in the appeal. In her response, Ms. Biggs explained the relationship between the Volunteers of America and the Department of Corrections as follows:
The Volunteers of America have a personal services contract with the Department's Division of Mental Health to provide substance abuse treatment services at a halfway house in Louisville. This program receives some of its funding from a federal grant. Local Facilities inspects the facility twice yearly. The Division of Probation and Parole is responsible for monitoring the program and its participants.
Ms. White's request for a copy of the "letter from parole officer" (Exhibit 4, attached hereto and incorporated herein) is hereby denied pursuant to KRS 61.878(1)(l) and 439.510, which states, in part:
All information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet.
The information contained in any letters written by the officer to the program or to any other entity regarding Mr. White's participation in the program was obtained by the officer in the course of his official duties. These documents often candidly reflect an offender's actions or failure to act while under supervision. To release these documents to anyone other than the named entities would result in a chilling effect and greatly impact the information provided to the officer, and in turn, the Parole Board.
In order to respond to the request for copies of Mr. White's treatment record and medications, I reviewed 42 CFR § 2.1 through § 2.33 and 42 U.S.C.A. § 290bb-4, 290dd-2 and 3796ff-1. Under these provisions, records regarding the identity, diagnosis, prognosis or treatment of a patient maintained in connection with the performance of any drug abuse prevention function conducted, regulated or directly or indirectly assisted by any department or agency of the U.S. shall be confidential and disclosed only for specific purposes. The content of the records may be disclosed with the prior written consent of the patient . As a federally assisted program, the records fall within the parameters of the federal regulations and code provisions. Ms. White purports to have authority to request the records under a general power of attorney. A reading of the federal provisions do not indicate that such a generalized power to conduct financial transactions or endorse or make a contract or agreement on someone's behalf would override the mandatory provision regarding disclosure "with the prior written consent of the patient ." None of the federal provisions refer to a representative having the power to give such consent. The Department maintains that these provisions govern the release of the patient records for the facility and as Ms. White has not provided the appropriate release signed by her husband , she is not entitle to a copy of the file. To the Department's knowledge, Mr. White has not been declared non compos mentis ; therefor, there should not be a bar to his signing the requisite authorization form.
Mr. White has contacted Department personnel in the past, lodging an open records request for documents relating to his supervision. (Exhibit 5) Ms. Hazel Combs responded, explaining the prohibitions of KRS 439.510. Mr. White was therefore "on notice" that documents generated by his Probation and Parole Officer were exempt from disclosure. (Exhibit 6)
At issue in this appeal is whether the Volunteers of America actions relative to Dr. White's open records requests were consistent with the requirements of the Open Records Act.
We affirm the denial of the request for the letter and other records prepared by the probation and parole officer pursuant to KRS 439.510 and KRS 61.878(1)(l). These provisions operate in tandem to exclude from inspection all information obtained in the discharge of official duty by any probation or parole officer.
In support of the withholding of these records, the Department of Corrections, in its supplemental response, advised that the records had been prepared by the probation or parole officer in the course of his official duties. This office has previously affirmed the Department's denial of similar requests on this basis. See, for example, OAG 89-14 and OAG 90-32. Although Mr. White did give his consent for the Volunteers of America to release the probation and parole officer's records provided to the agency, such release was prohibited by KRS 439.510. We therefore conclude that the records prepared by the probation and parole officer were exempt from disclosure under authority of KRS 439.510.
Moreover, Public Health Services, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. § 2.20 provides that the relation of the federal regulations to state laws is as follows:
The statutes authorizing these regulations do not preempt the field of law which they cover to the exclusion of all State laws in that field. If a disclosure permitted under these regulations is prohibited under State law, neither these regulations nor the authorizing statutes may be construed to authorize any violation of that State law. However, no state law may either authorize or compel any disclosure prohibited by these regulations.
Thus, even with Mr. White's consent, the Volunteers of America could not release the probation and parole officer's records, as such release is prohibited by KRS 439.510 and KRS 61.878(1)(l).
We also affirm the denial of the requests for other records in Mr. White's file because the requests were not supported by his prior written consent for release of those records as required by the federal regulations and code provisions. 42 CFR § 2.1 through § 2.33 and 42 U.S.C.A. § 290bb-4, 290dd-2 deal with the confidentiality of alcohol and drug abuse patient records. They place restrictions upon the disclosure and use of these records; and provide for a criminal penalty for any person that violates any provision of the statutes or regulations. The content of the records may be disclosed with the prior written consent of the patient. As a federally assisted program, the Volunteers of America records fall within the parameters of these federal regulations and code provisions.
Both the Volunteers of America and the Department of Corrections have indicated to Dr. White that copies of the treatment records, with the exception of the probation and parole officer's records, could be released to her upon receipt of the appropriate authorization signed by the patient, Mr. White. Accordingly we find that the Volunteers of America, not having received Mr. White's prior consent, properly denied access to Mr. White's patient records under authority of the cited federal statutes and regulations.
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.