Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Kentucky Board of Medical Licensure in response to the open records request of Michael J. Pravetz. Ph.D., M.D., violated the Open Records Act. For the reasons that follow, we find that the Board's actions did not violate the Act.
By letter dated December 31, 2002, Dr. Pravetz submitted a request to the Board seeking copies of all original correspondence between the Board and seven named individuals, "including but not limited to the Official Open Records Request, from the following sources which were sent to the Kentucky Medical Board in order to receive the information which was sent to them." The dates of the requested open records requests covered a period of time from November 1997 to March 1999.
By letter dated January 3, 2003, Jill Lun, Open Records Custodian for the Board, responded to Dr. Pravetz, advising:
Pursuant to your open records request dated December 31, 2002, please be advised that the information you request does not exist. Once the information is posted, the requestor's correspondence and response from the Board is destroyed.
On January 7, 2003, Dr. Pravetz initiated the instant appeal asking this office to determine whether the actions of the Board were in compliance with the Open Records Act. In his letter of appeal, he challenged the agency's actions, stating in part:
I am appealing this information on two grounds: by requiring written, specific requests, the Agency's destruction of this evidence is not credible and represents a fraudulent concealment. Confidential information has been released without any evidence of a written and specific request as per KBML policy. Secondly, all of the information released by the KBML, regarding me [see Tab B, enclosure] represents a violation of KRS 311, since by Statute, all of this information is confidential.
In November of 1998, I entered into an Agreed Order with the KBML as defined in KRS 311.550(19). This informal Agreement settled all pending issues with the Board. The Agreed Order acknowledges that no allegation was ever proven.
All of the information released, which includes the Agreed Order and previous complaints, was never proven. Any stipulations of facts merely noted that either allegations were made or that there was sufficient matter to proceed to a Hearing. This is obviously not a proof of guilt for any of the allegations which were presented, and cannot be held up as any equivalent of a proof of charge.
By this same statute (KRS 311.597(4)) the Legislature and KBML have incorporated the American Medical Association's Principles of Medical Ethics into the Medical Practice Act. The Code of Ethics definitively states that: "physicians who are under scrutiny should be protected by the rules of confidentiality until such charges are proven. " [see Tab I] This statute specifies the obligation which the KBML entered into with me by signing the Agreed Order. The release of these documents, clearly, violates this statute. All records from my case before the KBML are confidential and protected from release to anyone by the above statute. The Statute offers no exceptions.
After receipt of Notification of the appeal and a copy of the letter of appeal, C. Lloyd Vest II, General Counsel, provided this office with a response to the issues raised in the appeal. Addressing the issue of the Board's failure to maintain copies of open records requests and the requirement that requests be in writing, Mr. Vest asserted that although KRS 61.872(2) provides that agencies may require written requests to inspect records, they are not required to do so. He further argues that there is no requirement in the Open Records Act that requests for public records must be maintained by the agency.
Addressing Dr. Pravetz's argument that release of the Complaint, Amended Complaint and Agreed Order of Surrender in the Board's disciplinary action against his medical license should not be subject to public inspection and that release of such information is a violation of KRS Chapter 311 and the physicians' Code of Ethics, Mr. Vest advised:
When comparing a general provision to a specific provision addressing the issue at hand, the specific statute governs. In this case, the pleadings in a disciplinary action before this Board are public records and are subject to inspection and production under KRS 61.872(2). Furthermore, an Agreed Order of Surrender must be reported to the National Practitioner's Data Bank pursuant to federal regulation. It would be a violation of the statutes to deny inspection of such records.
Mr. Vest further explained that under the American Medical Association's Code of Ethics, physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues in accordance with the legal requirements in each state and the Code of Ethics governs the individual conduct of physicians and does not purport to govern governmental agencies.
We are asked to determine whether the actions of the Board violated the Open Records Act. For the reasons that follow, we conclude its actions did not violate the Act.
In her response to Dr. Pravetz's request, Jill Lun, Open Records Custodian, advised that the information he requested did not exist and explained that once the information is posted, the requestor's correspondence and response from the Board is destroyed. 1 Obviously, a public agency cannot afford access to records that it does not have or which no longer exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Board fully discharged this duty by so advising Dr. Pravetz. Accordingly, we conclude the actions of the Board in this regard did not violate the Act.
Moreover, the Board indicated in its responses that the original open records requests and the responses to them for the time period set forth in Dr. Pravetz request and agency notes concerning the requests have been destroyed. Mr. Vest's response indicates that the notes are maintained for a period of six months and then destroyed. This practice does not contravene the state records retention policy developed by the Kentucky Department of Libraries and Archives. Correspondence is scheduled according to its nature and content. See, 01-ORD-160. If the correspondence "documents the major activities, functions and programs of an agency and the important events in its history," it is deemed official correspondence and treated as a permanent record. See, Records Retention Schedule - General Schedule for State Agencies at page 1, "An Explanation of General Records," and Series No. M0001. In such cases, the Department recommends that it be printed out in a hard copy format for permanent retention, and transferred to the State Archives when it ceases to have administrative value. Correspondence of the administrative head of an agency reflecting final agency action falls within the parameters of this records series.
Conversely, general correspondence is "not crucial to the preservation of the administrative history of the agency," "is generally of a non-policy nature and without permanent value," and "deals only with the general operations of the agency . . . which are better documented by other records maintained by the agency." Records Retention Schedule at p. 1 and Series No. M0002. It is in the nature of a "tool[] which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626, p. 2. It has an indefinite retention period, but may be retained "no longer than two years." Id. Discretion rests with the agency and user to determine whether general correspondence need be retained. No requirement exists for the permanent archiving of these records. The Board's policy of destruction of the open records requests, which apparently the Board considers to be general correspondence, from 1997-1999, the time period of Dr. Pravetz's request, would not be inconsistent with Records Retention Schedule, Series No. M0002, which states that general correspondence may be retained no longer than two years.
Dr. Pravetz further asserts that the Board has not complied with its Open Records Policy that requires that open records requests to the Board shall be in writing, and that the Board has released copies of agency records without written requests. KRS 61.872(2) provides that a public agency may require that open records requests be in writing, but the Open Records Act does nor mandate it. So long as an agency meets the minimum requirements of the Act in timely responding to an open records request, it cannot be said to be in violation of the Act. This office is not empowered to compel compliance with an agency policy that exceeds the minimum requirements of the Act.
Finally, we address Dr. Pravetz's claim that the Board violated the provisions of KRS Chapter 311 and the AMA Canons of Ethics by release of agency records pertaining to him, such as the Complaint, Amended Complaint and the Agreed Order. Issues concerning the violation of KRS Chapter 311 and the AMA Canons of Ethics are not justiciable under the Open Records Act.
We agree with the Board's position set forth in its response to the letter of appeal that "pleadings in a disciplinary action before this Board are public records and subject to inspection and production under KRS 61.872." Generally, the complaint that led to or spawned the investigation and the report setting forth the final agency action, and any investigative records that are adopted as a basis for the agency action or the decision to take no action relative to the investigation are records subject to public inspection. Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 830 S.W.2d 373 (1992); 98-ORD-117.94-ORD-27. We believe that the Complaint, Amended Complaint and the Agreed Order would fall under this general rule.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), established that a party affected by an agency's decision to release records has standing to contest the decision in court under the plain meaning of KRS 61.882(1). Although an agency may wish to notify an affected party that it intends to release records relating to him in order that he may take such action as he may deem appropriate should he wish to prevent disclosure or otherwise assert any rights he may have under KRS 61.882(1), it is not required to do so under the Open Records Act. However, an agency should not ignore its obligation under KRS 61.880(1) to timely provide the requester with the requested records after the notification is given. 98-ORD-24.
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.
Distributed to:
Michael J. Pravetz, Ph.D., M.D.531Gates StreetPhiladelphia, PA 19128-2510
C. Jill LunCustodian of RecordsKY Board of Medical LicensureLouisville, KY 40222
C. Lloyd Vest IIGeneral CounselKY Board of Medical LicensureLouisville, KY 40222
Footnotes
Footnotes
1 In an October 13, 2002, open records request, Dr. Pravetz asked for copies of requests for information concerning him made to the Board and the names of the requesters, and dates, types, and places the communications took place. In its response, the Board provided Dr. Pravetz with a listing of open records requests from January 21, 1997, through November 30, 1999, which reflected the name of the requester, date the information was sent, and the documentation sent. Dr. Pravetz appealed the agency's response to this office, but later withdrew the appeal, noting in his letter of withdrawal certain procedural violations on behalf of the Board.