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 Independence Fire District violated the Open Records Act in its denial of Chris Henson's May 15, 2001 open records request for copies of:
All EMS/Squad reports for the years of 2000 & 2001 pertaining to: [home address] in the name of "Sharon Dean."
By letter dated May 31, 2001, Richard A. Messingschlager, Chief, responded on behalf of the District. In his response, Chief Messingschlager advised:
We cannot release any information on patients without their permission. If patient is over 18 years of age they can request a report or sign a release for someone else to acquire it. A patient under the age of 18 must have legal guardian sign release for report.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the District, with a copy of Mr. Henson's letter attached. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Chief Messingschlager, provided this office with a response to the issues raised in the appeal. Elaborating on the District's original response, he stated that agency's denial of Mr. Henson's request was under authority of KRS 61.878(1)(a). He further explained:
Emergency Medical Service (EMS) run reports contain confidential information of a personal nature, such as current conditions, past medical history, medications, and other private information. To disclose such information without restrictions would constitute an invasion of personal privacy.
The Independence Fire District provides, without charge, copies of these reports on the following basis:
The Independence Fire District supports the open records act, but this must be tempered with an individual's right to privacy in their person and condition. To release personal, confidential records about individuals, without restriction, is not in their best interest and is in violation of their personal privacy.
We are asked to determine whether the actions of the District violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of certain procedural violations, the agency's substantive response were in substantial compliance with the Act.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It is incumbent on every public agency to discharge its duties under KRS 61.880(1) by issuing a written response to a request for records within three business days of receipt, and, if all or any part of the request is denied, to cite the exception authorizing nondisclosure and explain its application to the record withheld.
To the extent that the District failed to respond to the original request in a timely fashion and to cite a statutory basis for denying access, his disposition of the request was improper. We urge the District to review the cited provisions to insure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, the District, relying upon KRS 61.878(1)(a), denied Mr. Henson's request stating that the EMS run reports contained information of a personal nature, such as current conditions, past medical history, medications, and other private information, the release of which, without the consent of the patient, would constitute an invasion of personal privacy.
This office has previously held that, while a blanket exclusion of information from an ambulance run report would be inconsistent with the Open Records Act, certain personal information could properly be withheld from disclosure when articulated in terms of the statute. See 94-ORD-133 and opinions cited therein. However, application of KRS 61.878(1)(a) and prior decisions of this office relative to ambulance or EMS run reports has been preempted by KRS 216B.410. Subsection (5) of that statute provides:
Ambulance provider and medical first response provider run report forms and the information transmitted electronically to the Kentucky Board of Emergency Medical Services shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form. Only the patient or the patient's parent or legal guardian if the patient is a minor, or the patient's legal guardian or person with proper power of attorney if the patient is under legal disability as being incompetent or mentally ill, or a court of competent jurisdiction may authorize the release of information on a patient's run report form or the inspection or copying of the run report form. Any authorization for the release of information or for inspection or copying of a run report form shall be in writing.
KRS 61.878(1)(l) excludes from public inspection:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
Pursuant to KRS 61.878(1)(l), the confidentiality provision of KRS 216B.410 is deemed incorporated into the Open Records Act, and compels nondisclosure of the requested EMS run records absent a properly executed release.
In 01-ORD-75, we held that, under authority of KRS 216B.410, ambulance, emergency, and EMS run reports must be withheld from disclosure, absent a properly executed release. Thus, we conclude that the District's denial of Mr. Henson's request for certain EMS run records, without a signed release from the patient, was proper and did not constitute a violation of the Act. KRS 61.878(1)(l); KRS 216B.410; 01-ORD-75.
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.
Chris Henson1939 Augustine AvenueCovington, KY 41014-1117
Richard A. MessingschlagerChief, Independence Fire DistrictP.O. Box 175Independence, KY 41051-0175
H. Lawson WalkerIndependence City Attorney50 E. Riverside Blvd.Covington, KY 41011