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 Seven Counties Services, Inc., violated the Open Records Act in denying WHAS-TV reporter Mark Hebert's request for records relating to Dr. Alfred L. Chatman, a physician formerly employed by Seven Counties, on the basis that it is not a public agency for open records purposes, or alternatively, that the requested records are excluded from public inspection by operation of KRS 61.878(1)(a). For the reasons that follow, we find that because it derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds, Seven Counties is a public agency for open records purposes and that KRS 61.878(1)(a) does not authorize nondisclosure of the records requested with the exception of those portions of the records that identify the complainants by name or by personally identifiable information.
On August 22, 2002, Mr. Hebert requested access to:
All complaints against Alfred Chatman.
Any documents detailing the outcomes or resolutions of the investigations into those complaints.
Chatman's resignation letter or the termination letter from Seven Counties Services.
Minutes of any Board meetings, subcommittee meetings, Board discussions or actions regarding Chatman.
Documentation that any of the complaints against Chatman were referred to any law enforcement agency or licensure board.
On September 3, 2002, Lisa Patrick Leet, Vice President of Human Resources and Staff Counsel for Seven Counties, denied Mr. Hebert's request. She explained:
Seven Counties Services, Inc., is not subject to the Open Records law. Although Seven Counties receives money from state and federal programs, this funding constitutes payment for services rendered by Seven Counties under programs such as Medicaid and Medicare and does not subject Seven Counties to the Open Records law. (See, for example, OAG-ORD-91 [sic].)
In the alternative, Ms. Leet asserted that the requested records "fall[] within exemptions for information of a personal nature that constitute a clearly unwarranted invasion of privacy and that [are] otherwise protected from disclosure by law." Shortly after he received Seven Counties' denial of his request, Mr. Hebert initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. Hebert's appeal, Christopher W. Brooker, an attorney representing Seven Counties, elaborated on his client's position. He observed:
Under Kentucky law, a private corporation comes within the purview of the Open Records Act if it derives at least 25% of its funds from state or local authority funds. See 00-ORD-01. It is now settled law, however, that government funds received by private healthcare corporations as direct payment for services rendered to patients are not considered 'state or local funds' when determining whether an entity receives 25% or more of its funds from the public coffers. See OAG 00-ORD-01, 93-ORD-90. Accordingly, a corporation comes within the provisions of the Open Records Act only if it derives 25% or more of its funding from state and local authorities outside of funds received as direct payment for services rendered to patients.
The Attorney General stated "[I]n our view, [KRS 61.870(1)(h)] was intended to insure that bodies which received 25% or more of their funding from state or local authority funds could be held publicly accountable for those funds. It was not intended to subject to public scrutiny the records of private physicians who receive state or federal funds as reimbursement for their services. " 93-ORD-90 (emphasis added). [Footnote omitted.]
Seven Counties is a private not-for-profit corporation that provides mental health care services to persons in Jefferson County and surrounding counties. Seven Counties receives 42% of its funding from the Kentucky Department of Mental Health and Retardation ("DMHMR"). Of the monies received from DMHMR, roughly 82% is expense reimbursement and payment for services rendered on a fee-for-service basis. Only 18% of the funding Seven Counties receives from DMHMR (roughly 6% of its total funding) is in the form of unrestricted grants.
In addition to DMHMR funding, Seven Counties receives an additional 7% of its funding in the form of local or state grants. Therefore, even if this 7% is combined with the unrestricted grants provided to Seven Counties by DMHMR (6% of its total funding) , the total non-reimbursement funding Seven Counties receives from state and local agencies does not constitute 25% of its total funding, nor does it represent 25% or more of the funds Seven Counties expends in the Commonwealth.
In support, Mr. Brooker attached the affidavit of Vicki Knable, Vice-President of Finance and Administration for Seven Counties, verifying these figures. He emphasized that although Medicare and Medicaid payments comprise a significant proportion of public funding to private healthcare providers as direct payment for services rendered, the Attorney General's decision in 93-ORD-90 is not restricted to Medicare and Medicaid payments but instead "excludes 'all state or federal funds [received by private physicians] as reimbursement for their services' from the KRS 61.870(1)(h) calculation." Mr. Brooker reaffirmed Seven Counties' alternative argument that KRS 61.878(1)(a) precludes access to the records identified in Mr. Hebert's request and advanced the additional argument that the records are protected by the physician-client privilege. We do not find Seven Counties' arguments persuasive.
To begin, Seven Counties' status under the Open Records Act cannot be equated to the private healthcare facilities or providers with which we dealt in 93-ORD-90 (University Diagnostic Imaging Associates, P.S.C.) or 00-ORD-91 (Ephraim McDowell Regional Medical Center). Unlike these entities, Seven Counties derives its authority to provide community mental health and mental retardation services from Chapter 210 of the Kentucky Revised Statutes, governing community mental health programs and regional mental health and mental retardation boards. Chapter 210 assigns a significant role to the Cabinet for Health Services in allocating funds to Seven Counties, approving Seven Counties' programs, plan, and budget, and insuring Seven Counties' compliance with policies and regulations governing its eligibility to receive state grants and other fund allocations. The same cannot be said of the private healthcare providers with which we dealt in 93-ORD-90 and 00-ORD-91. Critical to the open records analysis in the appeal before us is the fact that Seven Counties receives forty-two percent of its total funding under its contract with the Cabinet for Health Services, and an additional seven percent of its total funding in the form of state or local grants. Resolution of this appeal turns on whether, as Seven Counties argues, those funds can be analogized to Medicaid and Medicare funds disbursed to private healthcare providers as payment for services rendered on a fee-for-service basis which this office deemed not to constitute "state or local authority funds" for purposes of determining public agency status under KRS 61.870(1)(h) in 93-ORD-90 and 00-ORD-91. We believe that the analogy is flawed.
Pursuant to KRS 210.420(2), the Cabinet for Health Services is mandated to "distribute to community mental health-mental retardation boards those general funds appropriated to the cabinet for the operation of regional community mental health-mental retardation programs." Subsections (1) and (2) of KRS 210.440 govern allocation of these funds, providing:
(1) At the beginning of each fiscal year, the secretary of the Cabinet for Health Services shall allocate available funds to the mental health-mental retardation boards or nonprofit organizations for disbursement during the fiscal year in accordance with approved plans and budgets. The secretary shall, from time to time during the fiscal year, review the operations, budgets, and expenditures of the various programs; and if funds are not needed for a program to which they were allocated, he may, after reasonable notice and opportunity for hearing, withdraw any funds that are unencumbered and reallocate them to other programs. He may withdraw funds from any program, or component part thereof, which is not being operated and administered in accordance with its approved plan and budget, and the policies and administrative regulations of the cabinet promulgated pursuant to KRS 210.370 to 210.480.
(2) If the secretary finds at any time that a mental health-mental retardation board or nonprofit organization to which funds have been allocated for the operation of a regional community mental health and mental retardation program is not operating and administering its program in compliance and accordance with the approved plan and budget and the policies and administrative regulations of the cabinet, he may withdraw his recognition of that board or organization as the local authority for the receipt of funds and the operation and administration of regional community mental health and mental retardation programs.
KRS 210.450 confers additional powers and duties on the Cabinet relative to the extensive oversight role it is assigned, including the duty to promulgate policies and regulations governing eligibility of community mental health and mental retardation programs to receive state grants and other fund allocations from the Cabinet and the duty to evaluate local programs, provide consultative services, employ necessary and qualified personnel, and conduct annual reviews of the community health-mental retardation boards' personnel policies, procedures, and personnel compensation plans to insure that they are consistent with "accepted standards of personnel and salary administration prescribed by the cabinet. " KRS 210.450(5).
These provisions demonstrate that Seven Counties, though it is organized as a private nonprofit corporation as provided for in KRS 210.370, is by no means the same as a private healthcare facility, but is instead a facility operating under a plan and budget approved by the Cabinet and the comprehensive scheme of legislation embodied in Chapter 210. Perhaps more importantly, these provisions demonstrate that the funds that are allocated to Seven Counties derive from its contractual agreement with the Cabinet at a fixed annual amount and under terms prescribed by the Cabinet. The monies it derives from the Cabinet do not represent claims payment or fees for services that can properly be analogized to Medicaid or Medicare claims submitted by private healthcare providers notwithstanding the manner in which Seven Counties elects to "draw down" the allocated funds, or its characterization of those funds as restricted and unrestricted. To hold otherwise would be tantamount to elevating form over substance.
We find that the office's decision in 97-ORD-140 is controlling on the issue of Seven Counties' status as a public agency for open records purposes, and reaffirm our position that because it derives more than twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds (thirty-nine percent in 1997 and forty-two percent in 2002 in addition to other state or local funds in the amount of thirteen percent in 1997 and seven percent in 2002), "Seven Counties Services, Inc., is a public agency within the meaning of KRS 61.870(1)(h)." 97-ORD-140, p. 3; accord, OAG 76-648 (River Region Mental Health-Mental Retardation Board is a public agency for open records purposes because it derives more than twenty-five percent of its funds from state or local authority) ; 97-ORD-65 (Kentucky River Community Care, Inc., is a public agency falling squarely within the parameters of KRS 61.870(1)(h)).
By the same token, we reject now, as we rejected in 97-ORD-140, Seven Counties' argument that records relating to its employees are not public records. On this question, the Attorney General observed:
Because it receives more than 25 percent of its funds from state or local authority, Seven Counties' records are public records unless they "are not related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2). Despite the fact that its employees' salaries are, by its own admission, primarily funded through state and local government revenue, Seven Counties argues that employment records are not public records. Seven Counties relies heavily on the Kentucky Court of Appeals' decision in Hardin County v Valentine, [Ky.App., 894 S.W.2d 151 (1995)].
In Hardin County v Valentine, the Court of Appeals held that a request submitted by a former patient to a publicly funded hospital for copies of his medical records need not be honored because those records did not relate to the hospital's operations. The court noted that "the patients of a publicly-owned hospital have as great an expectation that their medical records will not be subject to public scrutiny as do the patients of private hospitals." Hardin County v Valentine, p. 152. We do not believe that employees of an agency whose salaries are funded by state and local authority can reasonably assert the same right of privacy.
In our view, Seven Counties' employees are an integral part of its operations. The term operate means "to conduct or direct the affairs of (a business, etc.)," and the term operation "a process or action that is part of a series in some work." Webster's New World Dictionary Second College Edition (1974). Because these employees' salaries are publicly funded, the public has a legitimate interest in records pertaining to their employment such as their position descriptions, salaries, resumes (reflecting relevant prior work experience, educational qualifications, and information regarding ability to discharge the responsibilities of employment), and disciplinary actions stemming from job-related misconduct. OAG 76-717; OAG 91-41; 96-ORD-86. Conversely, the public cannot legitimately ingress upon matters which are of a purely personal nature, including the employees' home addresses, social security numbers, medical records, and marital status since disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a); OAG 79-275; OAG 91-48; 94-ORD-91. As we noted at page 2 of 97-ORD-65, "Whatever status the employees of Kentucky River Community Care, Inc., may perceive themselves to hold, it is apparent that if their salaries are paid from public funds the public's interest in monitoring the expenditure of those funds outweighs the employees' expectation of privacy."
Id. We turn our attention to records "pertaining to disciplinary actions stemming from job-related misconduct, " in this case, former Seven Counties' employee Alfred Chatman.
Seven Counties maintains that under the rule announced in Kentucky Board of Medical Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), and under authority of KRS 61.878(1)(a) and the physician-client privilege, Mr. Hebert is foreclosed from inspecting the records identified in his request. Mr. Brooker asserts:
Mr. Hebert is requesting access to documents relating to a mental health care physician who is alleged to have engaged in misconduct of a sexual nature in connection with the treatment of certain clients. The documents requested, including the complaint forms used by Seven Counties, include highly personal information, such as patient names and addresses, their course of medical treatment, a listing of their prescriptions, and other such sensitive information.
Pursuant to Board of Examiners, the highly personal nature of such information outweighs the general presumption in favor of openness and inspection, and, accordingly, the information Mr. Hebert seeks is not subject to disclosure because it falls within the exemption set forth at KRS 61.878(1) [sic].
Although the privacy interests of Dr. Chatman's clients clearly warrant protection under KRS 61.878(1)(a) and the rule in Board of Examiners, above, that protection does not, in our view, extend to Dr. Chatman or Seven Counties, but is outweighed by the public's right to know that Seven Counties discharged its duty to "promptly, responsibly, and thoroughly" investigate the complaints leveled against Dr. Chatman. Board of Examiners, at 328. As we observed at page 1 of 97-ORD-121, "[e]mployee misconduct, confirmed by subsequent disciplinary action, and official reaction thereto are not accepted by society as details in which an individual has a reasonable expectation of privacy. Such matters are clearly related to public business, and thus cannot be cloaked in secrecy, though disclosure 'may cause inconvenience or embarrassment to public officials or others.' KRS 61.871."
In Board of Examiners, the Supreme Court affirmed the Board's denial of access to complaint files containing, inter alia, the psychologist's patient files and depositions of the complainants, acknowledging that the Board "provided [to the requester] copies of the original and amended formal complaints . . . and its final order." Id. at 325. The conditions of the psychologist's resignation, presumably documented in the Board's final order, "were equivalent to permanent revocation of his license - the ultimate disciplinary measure which might have been imposed had the action matured." Id. at 328. From the "already-disclosed portions of the record," id., the public could easily ascertain that the Board of Examiners "faithfully performed its purpose." Id. The Court determined that disclosure of the complaint files, consisting of the psychologist's patient files and patient depositions, "would constitute a serious invasion of the personal privacy of those who complained." The Court reasoned:
The information sought touches upon the most intimate and personal features of private lives. Mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity, and that the Board has in this case effectually promoted the public interest in regulation, and that there is a countervailing public interest in personal privacy, here strongly substantiated, we hold that further disclosure of information contained in the public record in this case would, as a matter of law, constitute a clearly unwarranted invasion of personal privacy.
Id. at 328, 329.
In the appeal before us, neither the complaints filed against Dr. Chatman nor the record documenting Seven Counties' final action relative to the complaints have been disclosed. While we agree that the complainants' privacy interest in their names, addresses, course of medical treatment, prescriptions, and "other such sensitive information" that is personally identifiable or otherwise relates to their diagnosis and treatment, warrants protection under KRS 61.878(1)(a), we do not believe that this protection extends to Dr. Chatman, the nature of the complaints made against him, and Seven Counties' response thereto. Pursuant to KRS 61.878(4), sensitive information relating to the complainants may be redacted, but the remainder of these complaints, as well as records reflecting Seven Counties' final disposition of these complaints, must be disclosed. This includes referral letters to law enforcement agencies or licensure boards which may be characterized as final disposition vis-a-vis Seven Counties, and complaints, or initiating documents, vis-a-vis the agencies to which they were transmitted. As long as the agencies to which they were referred have finally resolved the complaints, the referral letters must be disclosed. Further, based on Palmer v. Driggers, Ky.App., 60 S.W.3d 591 (2001), 97-ORD-121, and the authorities cited therein, Dr. Chatman's letter of resignation, if one exists, must be disclosed subject to the caveat that portions of his resignation letter may be redacted, pursuant to KRS 61.878(1)(a) and 61.878(4) , if it references, for example, personal illness or loss prompting resignation as opposed to "[m]atters relating to the management and operation of a public agency which prompted a public employee to tender his resignation . . . ." 97-ORD-121, p. 1, citing 94-ORD-108, p. 29. Finally, without addressing the question of whether Seven Counties is a public agency for open meetings purposes, we believe that the minutes of Board meetings at which the complaints concerning Dr. Chatman were discussed must also be disclosed based on the principle that an agency "speaks through its minutes, " OAG 83-139, p. 2, and that those minutes are an official record of its actions once approved. To the extent that the minutes contain the names of complainants or personally identifiable information relating to them, those references may also be redacted pursuant to KRS 61.878(1)(a) and 61.878(4).
We do not accept the proposition that complaints lodged against a psychiatrist by his patients, and submitted to his employer, qualify for protection under the physician-client privilege, or what appears to be more correctly denominated, in this context, the psychotherapist-patient privilege. That privilege is codified at KRE 507. Subsection (2) of KRE 507 establishes the general rule of privilege:
A patient, or his authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of his mental condition, between the patient, the patient's psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.
A communication is deemed confidential:
if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination or interview, or persons reasonably necessary for the transmission of the communication, or persons who are present during the communication at the direction of the psychotherapist, including members of the patient's family.
The charges leveled against Dr. Chatman by his patients, and submitted to Seven Counties, cannot be characterized as confidential communications between Dr. Chatman and his patients made for purposes of diagnosis or treatment of a mental condition. Pursuant to KRS 61.878(1)(a), the patients'/ complainants' identities warrant protection, but the allegations they made against Dr. Chatman do not enjoy protection under either KRS 61.878(1)(a) or the psychotherapist-patient privilege found at KRE 507.
We therefore reaffirm 97-ORD-140 and conclude that Seven Counties Services, Inc., is a public agency for open records purposes because it derives at least twenty-five percent of its funds expended by it in the Commonwealth from state or local authority funds. KRS 61.870(1)(h). To the extent that the services Dr. Chatman provided as an employee of Seven Counties related to the "functions, activities, programs, or operations funded by state or local authority, " KRS 61.870(2), we find that records relating thereto, including the disciplinary records requested by Mr. Hebert, must be disclosed after redactions are made to protect the privacy interest of Dr. Chatman's patients/ complainants.
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.
Mark HebertWHAS-TV520 West Chestnut StreetLouisville, KY 40202
Dr. Howard F. BraccoPresident & Chief Executive OfficerSeven Counties Services, Inc.101 W. Muhammad Ali Blvd.Louisville, KY 40202-1451
Lisa Patrick LeetVice President of Human Resources And Staff CounselSeven Counties Services, Inc.101 W. Muhammad Ali Blvd.Louisville, KY 40202-1451
Christopher W. BrookerWyatt, Tarrant & Combs500 West Jefferson Street, Suite 2800Louisville, KY 40202-2898