Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Henry County Judge/Executive violated provisions of the Open Records Act in the disposition of Willis Barmore's July 3, 2001, request for "the records of the EMS runs made in the last three months . . . includ[ing] the runs made, how these runs originated and [their] destination, . . . the finances of these runs, [and] how these runs were billed, . . . if they were paid, and by whom." Mr. Barmore's request went unanswered, prompting him to initiate an open records appeal. For the reasons that follow, and upon the authorities cited, we conclude that although his disposition of Mr. Barmore's request was procedurally deficient, Henry County Judge/Executive Tommy Bryant's response was substantively correct.
In a letter directed to this office following commencement of this appeal, Virginia Lee Harrod, Henry County Attorney, furnished the Attorney General with a copy of Judge Bryant's response to Mr. Barmore's request. She explained:
As [Judge Bryant's] letter indicates it was merely an oversight on his behalf. Due to the medical patient's privacy rights, confidential information had to be redacted from the records, which led to a slight delay.
The attached letter to Mr. Barmore, dated July 26, 2001, and signed by Judge Bryant, includes "a recap sheet prepared by Bonnie Smith in answer to [his] open records request . . . encompass[ing] the three moths of April, May, and June . . . ." Judge Bryant elaborated on the raw statistics contained in the "recap sheet" :
There were 292 runs made in this three month period. Of these, 219 were 911 calls and 63 from non-emergency calls such as nursing home and individual patients. For record purposes one call, frequently resulting in two runs as a trip to and from a doctors office, is counted as two runs but is initiated by only one call.
The calls made resulted in 173 runs to hospitals, 61 to doctor's offices and 50 calls resulted in no transport. 8 calls were mutual aid calls, which are standby calls for other agencies emergencies.
Statements were issued for 214 calls. Again I would note that the doctor's office runs are considered two runs but result in only one statement. The information is broken down into the amounts billed and collected from government agencies (such as Medicaid), private insurance and individuals.
Acknowledging his error in failing to respond in a timely fashion, Judge Bryant assured Mr. Barmore that he "and any other citizen are free at any time to get such information."
The Henry County Judge/Executive violated the procedural requirements of the Open Records Act set forth at KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Barmore's request. KRS 61.880(1) 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). As noted, it expressly requires a timely, written response directed to the person making the request. Judge Bryant's failure to respond to Mr. Barmore in writing, and within three business days of receipt of his request, constituted a procedural violation of the Open Records Act. Notwithstanding Judge Bryant's admission of error, we urge the office of the Henry County Judge/Executive to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issue of records access, we find that Judge Bryant discharged his duty to disclose nonexempt information relating to emergency medical services runs in Henry County for a three month period by compiling that information from the ambulance run reports in a "recap sheet" that did not violate either KRS 61.878(1)(a) or KRS 216B.410. The Attorney General has long recognized that certain personally identifiable information in an ambulance run report could properly be withheld under authority of KRS 61.878(1)(a) so as to avoid a clearly unwarranted invasion of personal privacy. See 94-ORD-133, and authorities cited therein. In 1998, the Kentucky General Assembly went one step further and enacted 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.
Pursuant to KRS 61.878(1)(1), 1 this confidentiality provision is deemed incorporated into the Open Records Act, and compels nondisclosure of ambulance and emergency medical services run reports absent a properly executed written release. See 01-ORD-75 and 01-ORD-118. Assuming that the information Mr. Barmore sought could not be extracted from nonexempt records relating to Henry County Emergency Medical Services, we affirm Judge Bryant's disposition of the open records 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 proceedings.
Footnotes
Footnotes
1 KRS 61.878(1)(l)authorizes public agencies to withhold:
prohibited or restricted or otherwise public records or information the disclosure of which is made confidential by enactment of the General Assembly.