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 Kentucky Board of Medical Licensure violated the Open Records Act in the disposition of Milford T. Martin's July 25, 2001, request for "[a]ll grievances filed with the Board of Medical Licensure concerning Dr. Bashirahmed Ameji that originated from within Eastern Kentucky Correctional Complex and the decisions reached so far from January 1998 through July 25, 2001." Having received no response to his request, Mr. Martin initiated this appeal in a letter dated August 31, 2001, and received on September 6, 2001. For the reasons that follow, we conclude that the Board's disposition of Mr. Martin's request was procedurally and substantively deficient.
Upon receipt of notification of Mr. Martin's appeal, Board of Medical Licensure Executive Director C. William Schmidt responded on behalf of the Board in a letter directed to this office. Mr. Schmidt explained:
When we received the Notification to Agency of Receipt of Open Records Appeal, [open records custodian Jill] Lun reviewed her records, but was unable to find the request filed by Mr. Martin. An office-wide search was initiated for the document. On Monday, September 10, the document was discovered as a result of that search.
You will note that the Open Records request made by Mr. Martin was not a separate request for Open Records. Rather, it was included in correspondence asking for follow-up information regarding a grievance that had been filed in December 2000. That correspondence had been directed to the secretary responsible for assigning and monitoring grievances. Through simple oversight, the request was not forwarded to Ms. Lun for handling.
Ms. Lun has prepared the appropriate response to Mr. Martin's Open Records request. The original of the response has been directed to Mr. Martin and a copy is attached for your review.
The agency regrets the oversight. However, we do not believe that Mr. Martin has been harmed by the delay in response. The information requested - past grievances against this physician and the action taken in each instance - is compiled as a matter of course as part of the investigation of Mr. Martin's grievance and will be presented to the Panel. Such information will be available to him along with the Panel's response to the investigation of the grievance he filed.
The response prepared by Ms. Lun, to which Mr. Schmidt referred, indicated that the documents Mr. Martin requested were attached. The single record attached read as follows:
The Panel members reviewed the following grievances received from inmates in correctional facilities located in Kentucky. A copy of each grievance was directed to Patrick Sheridan, M.S., Medical Director of the Department of Corrections, for his review and his response to each grievance was also considered. In those cases where the physician was named, the grievance was also directed to the physician and their response was also considered.
Bashirahmed M. Ameji, M.D.
Steve Hiland, M.D.
Mindy Tanner, M.D. (Two Cases)
Following a review of these grievances, it was the consensus of the Panel members that they were without merit and no action was necessary.
Bashirahmed M. Ameji, M.D. - The Office of Inspector General referred correspondence it received from [redacted] to the Board for review based on his allegations that Dr. Ameji failed to provide appropriate medical care. Dr. Ameji was provided a copy of Mr. [redacted] correspondence and his response was considered by the Panel members, in addition to correspondence from Patrick A. Sheridan, M.D., Medical Director of the Department of Corrections.
In the right hand lower corner of the first section of the document, the handwritten notation appeared:
1/15/98
Panel B
In the right hand lower corner of the second section of the document, the handwritten notation appeared:
5/21/98
Panel A
Ms. Lun did not attach copies of grievances filed with the Board concerning Dr. Ameji that originated from within Eastern Kentucky Correctional Complex, or alternatively, indicate that no such records exist, or that one or more of the exemptions codified at KRS 61.878(1)(a) through (l) authorized their nondisclosure. Nor did Ms. Lun describe, in general terms, the nature of the information redacted from the record disclosed, or cite a statutory exception authorizing nondisclosure of the information.
It is the opinion of this office that regardless of whether Mr. Martin's request was "a separate request for Open Records," or "included in correspondence asking for follow up information regarding a grievance, " the Board of Medical Licensure was statutorily obligated to respond in writing, and within three business days, and that its failure to do so constituted a violation of KRS 61.880(1). With reference to the sufficiency of a records request, this office noted, in 99-ORD-148, that even if a request "is not identified as an open records request submitted under authority of Chapter 61 of the Kentucky Revised Statutes, it satisfie[s] the requirements of KRS 61.872(2), relative to written application, [as long] as it describe[s] the records to be inspected, and [is] signed by the applicant, with his name printed legibly thereon." 99-ORD-148, p. 2. When such a request is tendered, the statutory requirements codified at KRS 61.880(1) are triggered, and an agency is obligated to respond in a proper and timely fashion.
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 KRS 61.880(1), 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, 857 (1996). As noted above, that response must be in writing and issued within three business days of receipt of the request. "A limited and perfunctory response," the court concluded, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. The failure to issue any response constitutes a clear violation of KRS 61.880(1).
Mr. Martin's July 25 letter satisfied the minimum requirements of a properly framed open records request found at KRS 61.872(2) insofar as it was in writing, described the records to be inspected, was signed by the applicant, and contained his name printed legibly thereon. Indeed, the request was written on Form B-010-1, "Request to Inspect Public Records Re KRS Ch. 61," prepared by the Finance and Administration Cabinet. This being the case, we believe that the Board was obligated to issue a timely, written response.
Turning to the substantive issue in this appeal, we find that the Board did not make full disclosure of the records identified in Mr. Martin's request, or alternatively, specifically indicate that no responsive records exist, or that such records as do exist are exempt from public inspection pursuant to one or more of the exemptions codified at KRS 61.878(1)(a) through (l). As noted above, "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. " KRS 61.880(1). The Board's response was in the nature of a "limited and perfunctory response" criticized by the Court of Appeals in Edmondson, above at 857.
Mr. Martin clearly and unambiguously requested "all grievances filed with the Board of Medical Licensure concerning Dr. Bashirahmed Ameji that originated from within Eastern Kentucky Correctional Complex," in addition to "decisions reached so far . . . ." From the records disclosed, it appears that Mr. Martin was furnished with "decisions reached" but not the grievances that spawned those decisions. It was, in our view, incumbent on the Board to provide him with copies of the grievances themselves, and if none exist, to affirmatively so state. See, 98-ORD-200; 98-ORD-154; 97-ORD-180; 96-ORD-101; OAGs 91-220, 91-101; 90-69; 86-38. If all or any portion of the grievances were excluded from public inspection, it was incumbent on the Board to cite the exemption authorizing nondisclosure, and to briefly explain its application to those grievances. Mr. Martin having tendered a proper open records request, it was not within the Board's discretion to delay access to any nonexempt grievances until the Panel "respon[ds] to the investigation of the grievance he filed."
This holding applies with equal force to the redacted portions of the document released to Mr. Martin. Without explanation, the Board redacted four entries that appeared on the document. Unless a specific statutory exemption authorized such withholding, we believe that the Board is obligated to make full disclosure of the document to Mr. Martin. If statutory authority exists for the redactions, the Board is obligated to cite the authority and briefly explain its application to the entries withheld.
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.
Milford T. Martin, # 128427200 Road to JusticeWest Liberty, KY 41472
Jill LunOpen Records Custodian Kentucky Board of Medical LicensureHurstbourne Office Park310 Whittington Parkway, Ste. 18Louisville, KY 40222
C. William SchmidtExecutive DirectorKentucky Board of Medical LicensureHurstbourne Office Park310 Whittington Parkway, Ste. 18Louisville, KY 40222