Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Cabinet for Health Services violated the Open Records Act in denying Chris Harrell's requests for copies of:
1. Clients behavioral plan of client in question [regarding incident involving Mark Wittmer] in effect on 9/28/99
2. Written Statement of Mark Wittmer of 9/28/99.
By letter dated January 21, 2000, Marcia Morgan, Deputy Secretary, responded to Mr. Harrell's request on behalf of the Cabinet. Ms. Morgan denied the requested clients behavioral plan stating such was "exempt from inspection pursuant to KRS 61.878(1)(a) and (l), KRS 194A.060, KRS 210.235, and KRS 216.2927." She denied the request for the written statement of Mark Wittmer under authority of KRS 61.878(3).
Following receipt of Mr. Harrell's letter of appeal, John H. Walker, Assistant General Counsel for the Cabinet, provided this office with a response to the issues raised in the appeal. Elaborating on the Cabinet's original response, Mr. Walker stated:
Pleased be advised that the Cabinet has decided to take action to terminate Mr. Harrell's client's employment with the agency. Having made a final decision to take that action, the written statement of Mark Wittmer dated September 28, 1999 has been forwarded to Mr. Harrell. A copy of the letter of transmittal accompanying the document is attached for your file. Until the final decision to take action against Mr. Wittmer was made, the document was a component of an on-going administrative investigation of the matter which led to Mr. Wittmer's termination. In accordance with KRS 61.878(3), an employee, while given general access to records pertaining to himself, does not have the right to obtain documents relating to an on-going administrative investigation by an agency. Until a final decision was made in Mr. Wittmer's case, the matter was an on-going investigation. The provisions of KRS 61.878(3) are consistent with the limitations on access to documents of which the premature release would compromise the integrity of an administrative investigation as set forth in KRS 61.878(1)(h).
Mr. Harrell also requested the client behavioral plan of a client of the Cabinet for Health Services served by the agency in its Hazelwood facility. Records of clients of the Cabinet served in its mental health facilities are strictly confidential, and have been recognized as not accessible by the Kentucky general assembly through KRS 210.235; KRS 216.2927(1); and KRS 194A.060. The Kentucky Open Records Act protects these records from disclosure at KRS 61.878(1)(a) and (1)(l). In denying Mr. Harrell access to the client's records, the Cabinet has acted completely consistent with the requirements of the law on the treatment of its client's records.
For the reasons that follow, we conclude that the responses of the Cabinet were in accord with the requirements of the Open Records Act and did not constitute a violation of the Act.
KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
(Emphasis added.) In construing this provision, the Attorney General has observed:
The final sentence of the provision authorizes an agency to withhold examinations and "documents relating to ongoing criminal or administrative investigations by [the] agency" even when they are requested by the public agency employee and relate to him. Thus, as a rule of general application, KRS 61.878(3) mandates release of otherwise exempt records to a public agency employee. However, where the employee is under investigation and the documents relate to that investigation, the request can properly be denied. See, e.g., 93-ORD-37; 93-ORD-74.
95-ORD-97, p. 4.
In 93-ORD-37, the Attorney General affirmed the Cabinet for Human Resources' denial of an attorney's request for records relating to the Cabinet's investigation into allegations against her client on the basis of the concluding sentence of KRS 61.878(3). We reached the same result in 93-ORD-74. In that appeal, an attorney challenged the Department of Education's denial of his request for records relating to its investigation into possible violations of state school law by his client.
The written statement that Mr. Harrell requested on behalf of his client Mr. Wittmer, a public agency employee, related to an ongoing investigation relating to the employee conducted by the Cabinet, and his request was therefore properly denied. As noted above, the administrative investigation has concluded with Mr. Wittmer's termination and a copy of the statement has been provided to Mr. Harrell. The Cabinet's response was consistent with the requirements of KRS 61.878(3) and prior decisions of this office.
We also conclude that the Cabinet properly denied Mr. Harrell's request for a copy of the client behavioral plan of a client of the Cabinet, who was involved in an incident with his client, Mr. Wittmer, on the basis of KRS 61.878(1)(l) and KRS 210.235.
KRS 61.878(1)(l)authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. " This provision acts in tandem with KRS 210.235, which provides:
1. The person identified or his guardian, if any, shall consent; or
2. Disclosure may be necessary to carry out the provisions of the Kentucky Revised Statutes, and the rules and regulations of cabinets and agencies of the Commonwealth of Kentucky; or
3. Disclosure may be necessary to comply with the official inquiries of the departments and agencies of the United States government; or
4. A court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and failure to make such disclosure would be contrary to the public interest. Nothing in this section shall preclude the disclosure, upon proper inquiry of the family or friends of a patient, of information as to the medical condition of the patient.
Like numerous other confidentiality provisions relating to records in the Cabinet for Health Services' custody, such as KRS 194A.060 and KRS 216.2927 cited by Mr. Walker, KRS 210.235 requires the Cabinet to withhold from all persons who do not fall within the excepted categories records which identify a patient or former patient unless the requester obtains the consent of the person identified or his guardian, or a court order. Mr. Harrell has not satisfied the requirement that he falls within an excepted category of the statute authorizing disclosure of the records or has obtained a court order.
In 97-ORD-167, we held the Cabinet for Health Service's properly denied an attorney's request for records relating to his client's father as he has failed to satisfy the requirements of KRS 210.235 by either obtaining the consent of the person identified or his guardian or a court order. In that decision, we stated:
In OAG 76-420, this office cited KRS 210.235 in support of the position that personal mental health records are exempt from public inspection. We affirmed this view in OAG 82-414, holding that only the person who is the subject of the records, or his guardian, is entitled to a copy of his medical records pursuant to KRS 210.230(1). We adopted the reasoning of these opinions in OAG 87-75, holding that KRS 210.235 applies to the Cabinet and a psychiatric center operating under the Cabinet's auspices, both of which are strictly bound to observe the confidentiality requirement codified in that provision. These opinions are controlling.
While there may be occasions when the unequivocal language of KRS 210.230 works a hardship on a party seeking access to medical records for a clearly legitimate purpose, this office has consistently recognized that the Cabinet is prohibited from releasing those records which directly or indirectly identify a patient or former patient. We therefore conclude that the Cabinet for Health Services properly denied [the requester's] request.
For the reasons set forth in 97-ORD-167 and the authorities cited therein, it is the decision of this office that the Cabinet properly denied the request for the client behavioral plan of a client of the Cabinet, under authority of KRS 61.878(1)(l) and KRS 210.235.
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.