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 Ephraim McDowell Regional Medical Center relative to the open records request of Steve Fitzgerald, dated February 2, 2000, for copies of:
All records to verify all physicians working emergency room on Dec. 11, 1985, from 11:00 p.m. to 1:00 a.m. Dec. 12, 1985. And all admissions to Emergency Room Desk from Dec. 11, 1985 to Dec. 12, 1985, from 11:00 p.m. to 1:00 am. Records to verify request of treatment by any said person at this time and date.
In his letter of appeal, Mr. Fitzgerald stated that he had yet to receive a response to his open records request.
After receipt of Notification to Agency of Receipt of Open Records Appeal, Margaret Young, General Counsel, provided this office with a response to the issues raised in the appeal. In her response, Ms. Young stated:
First, we replied to Mr. Fitzgerald on February 16, 2000, and a copy of our reply is enclosed. Our response indicates that flooding destroyed these 15-year old records. The Attorney General's Office has quite rationally noted that records that have been destroyed are not subject to the Open Records Act, OAG 93-ORD-122. In addition, Kentucky regulations require hospitals to keep medical records for five (5) years. Thus, this medical record would have been destroyed in the ordinary course of business if it had not been previously destroyed by flood. I would also like to point out that while Mr. Fitzgerald ordinarily has a right to a copy of his own medical record, if it had not been destroyed and his request had occurred within the 5-year period, under Kentucky law he does not have a right to the other requested records because they are (1) not subject to the Kentucky Open Records Act and (2) contain private information about other patients.
The Kentucky Open Records Act, KRS 61.870 et seq., applies only to certain records held by public agencies. A public agency is defined in KRS 61.870(1), but Ephraim McDowell Regional Medical Center is not a public agency under this definition. Instead, it is a private, nonprofit corporation that operates an acute care hospital. Although it does receive funding from the state, those funds are for services rendered. The Attorney General has opined the Medicare and Medicaid funds do not constitute "state of local authority funds." OAG 93-ORD-90. Any grants or other monies the Hospital might receive does not make up 25% of the funds the Hospital expends that would otherwise require it to comply with the Kentucky Open Records Act.
Moreover, some of the records that Mr. Fitzgerald requests contains the names of patients who presented at our Emergency Department during a given time period. This information is both privileged because the right of privacy in a medical record belongs to the individual as much as to the institution pursuant to KRS 311.377(2) and, even if it were deemed to be a public record, is excluded from release without a court order pursuant to KRS 61.878(1)(a) because it contains information of a personal nature. See OAG 82-269.
The issue presented in this appeal is whether the Center is a "public agency" for purposes of the Open Records Act. For the reasons that follow, we conclude that the hospital is not a public agency within the meaning of KRS 61.870(1), and is not subject to the Act.
This office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds from state or local authority funds. 92-ORD-1114; OAG 88-61; OAG 81-377. Those opinions were premised on the following definition of "public agency" set out in KRS 61.870(1)(h):
Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.
Ms. Young explained in her response to the letter of appeal that the Center is a private nonprofit corporation. She noted the hospital received Medicare and Medicaid funds. In 93-ORD-90, we held that Medicare and Medicaid funds do not constitute "state or local funds" in determining whether an entity receives 25% or more of its funds from public coffers. Ms. Young further stated that any grants or monies the Center might receive did not make up twenty-five percent of the funds expended by it in the Commonwealth.
Accordingly, it is the decision of this office that the foregoing indicates that the Center is not a "public agency" within the meaning of KRS 61.870(1) and cannot be required to release its records, if they existed, or to adhere to KRS 61.880(1), in response to a request for its records under the Open Records Act. 93-ORD-127.
Because the foregoing is dispositive of this appeal, we need not address other bases cited by the Center in support of its actions relative to Mr. Fitzgerald'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.