03-ORD-211 | KOGC

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 Pendleton County Fiscal Court and E-911 Dispatch Center violated the Open Records Act in denying Peter O. Samples' June 26, 2003 request for copies of communication tapes generated over a twenty-four month period "due to the danger of exposing HIPAA (Health Insurance Portability and Accountability Act of 1996) privileged information," and the unreasonable burden associated with production of those tapes. Mr. Samples is a detective employed by the Pendleton County Attorney's Office and submitted his request for the purpose of "substantiat[ing] and/or collaborat[ing] criminal activity by certain county and/or public officials and others." 1 For the reasons that follow, we find that because it is within the discretion of the subject agencies to treat Mr. Samples as they would treat any other requester under the Open Records Act, and because the agencies have adduced clear and convincing evidence of the unreasonably burdensome nature of his request, the agencies properly relied on KRS 61.872(6) in denying that request.

Mr. Samples' June 26 request was preceded by an exchange of correspondence with Pendleton County Judge/Executive Henry Bertram. Subsequently, the Pendleton County Fiscal Court conducted a closed session meeting at which this matter was discussed under the doubtful authority of KRS 61.810(1)(f), authorizing closed session "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee . . . ." The subject of this meeting was Mr. Samples' "open records request relating to dispatch tapes" (July 2, 2003 letter from Judge Bertram to Mr. Samples), and at its close the fiscal court "adopted a set of procedural guidelines that were created to govern the review of dispatch tapes. " Falmouth Outlook, July 15, 2003. Those guidelines were rescinded at a July 12 special meeting, apparently held as an open session, and seven of the original nine guidelines for inspection were re-adopted. The fiscal court also issued certain directions to the dispatch center relative to reproduction of the tapes. 2 On July 17, 2003, Pendleton County Dispatch Center Official Custodian of Records, Jackie Stephens, denied Mr. Samples' request "due to the danger of exposing HIPAA . . . privileged information." 3

Shortly thereafter, Attorney Jeffrey C. Mando issued a supplemental denial to Mr. Samples' request on behalf of his clients, the Pendleton County Fiscal Court and Jackie Stephens. Mr. Mando advised:

Compliance with your request for copies of all communication tapes for the 24-month period preceding June 26, 2003 would place an unreasonable burden upon Jackie Stephens and the Fiscal Court. According to Stephen Campbell at Stephen Campbell & Associates, Inc., the DAT tapes cannot be duplicated on the DI-939 recorder at the Dispatch Center or any loaner recorder that he could provide. While there are providers who can duplicate the DAT tapes, our manufacturer, Dynamic Instruments, could not specifically recommend/identify any particular provider, and Mr. Campbell advises that the cost of duplication would be "costly and time consuming." While Mr. Campbell advised that it may be possible to duplicate the tapes by acquiring/purchasing two (2) Sony DAT drives, a computer with a Windows 2000 operating system and third party software, this process is likewise cost prohibitive and time consuming. Based on this information, complying with your request would place an "unreasonable burden" on Ms. Stephens and the Fiscal Court and a denial is authorized by KRS 61.872(6).

Second, the tapes that you have requested for duplication contain "protected health information" (PHI) that is not subject to inspection and/or reproduction under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations promulgated thereunder. KRS 61.878(1)(k) specifically provides that "public records or information the disclosure of which is prohibited by federal law or regulation" is exempted from the provisions of KRS 61.870 to 61.884. Since HIPAA is a federal law, and the regulations implementing that legislation require my clients to maintain the confidentiality of PHI, KRS 61.878(1)(k) compels my clients to deny you the right to inspection any PHI contained on the tapes.

Since the Pendleton County Fiscal Court bills for and provides emergency medical services to individuals, it is a "covered entity" subject to the "privacy rule" set forth generally in 45 C.F.R. Part 160 and subparts A and E of Part 164 of the Code of Federal Regulations. Since the tapes that you have asked to be duplicated contain PHI, the tapes cannot be produced with that information. While KRS 61.878(4) requires an agency to "separate the excepted and make the non-excepted material available for examination," this provision is subject to KRS 61.872(6). To duplicate the 24 months of tapes themselves is a cost prohibitive task; to duplicate the tapes and at the same time delete PHI is virtually an insurmountable assignment given the lack of equipment and the human resources available.

In closing, Mr. Mando rejected Mr. Samples' request for unrestricted access to the tapes on the basis of the "law enforcement exception" to HIPAA codified at 45 CFR § 164.512(f), asserting that the broad nature of that request, coupled with the limited information Mr. Samples provided relative to the purpose of his request, precluded disclosure of copies of the unredacted tapes.

On July 24, 2003, Mr. Samples initiated this appeal challenging the agencies' refusal to disclose 911 dispatch tapes generated in the preceding twenty-four month period which he "believed to substantiate criminal activity by certain officials of the dispatch center and others." In response to the arguments advanced by the agencies, Mr. Samples advised:

[T]he Office of Pendleton County Attorney offered to the Judge and Fiscal Court to pay the expense of renting a CAD reader in order to review the existing tapes without the necessity of making duplicate copies. This option would have eliminated virtually all expenses and additional personnel hours which Mr. Mando alludes to in the denial. Mr. Mando did not address this option. In addition, both denial letters ignored the provisions set forth under HIPAA which authorizes the release of HIPAA covered information to law enforcement for investigative purposes without permission from anyone.

It was his position that because the dispatch center "is an extension of the law enforcement agencies it serves . . .," his request should have been honored.

Attached to Mr. Samples' letter of appeal was a letter prepared by Pendleton County Attorney C. Donald Wells. In that letter, Mr. Wells expressed his "full support [of Mr. Samples'] efforts to obtain these records." Expressing his reluctance to proceed by means of a search warrant, he advanced several arguments in support of Mr. Samples' unrestricted right of access, noting that "[the Open Records] statute provides for and there should be reciprocal and general availability of records between agencies," especially where those records contain "information . . . that will be of benefit in a criminal investigation" that is directed at "elected officials and others serving government in an employed position, including employees in the very dispatch center which seeks to deny this information." Continuing, he observed:

[I]t is strictly unacceptable that a virtual entire body of public information would be protected from public scrutiny merely because of the possibility that somewhere within that body of information there is something that relates to a health issue. Dispatch is a unique situation, in terms of the provision of medical care. Folks occasionally may call dispatch to report the need for an ambulance. The dispatch center does not provide medical care. The dispatch center merely then dispatches a privately owned ambulance or alerts some private medical provider, but the same is done over the airways subject to being overheard by anyone with a police scanner. It can hardly be said that such a telephone call is protected under HIPAA.

With specific reference to the agencies' assertion that Mr. Samples' request would impose an undue burden and undue expense, Mr. Wells observed:

[T]hey have recited absolutely no basis for stating that it would be unduly burdensome or unduly expensive. Neither are there time commitments mentioned nor price quotes advanced for the investment of time or treasure and even if it were burdensome county government has a duty to invest that time and that expense to make this information available, especially to an agency of that government. Alternatively, the County Attorney's office could be asked to share the cost; in fact, that offer has been made.

In sum, Mr. Wells declared, the federal law upon which the agencies rely should not be construed to "scuttle the Open Records Law" or "eviscerate the purposes for which it was enacted," and even if it applies, "the keeper of the records has a duty to make nonexempt information available, regardless of the inconvenience."

In supplemental correspondence directed to this office following commencement of Mr. Samples' appeal, Mr. Mando elaborated on his clients' position. He estimated that the request implicated some 17,520 hours of dispatch tape 4 and reiterated:

[T]here still remains the problem of purchasing/obtaining a CAD reader, with Sony DAT drives and a Windows 2000 operating system on which to play and duplicate the tapes separate and apart from the DI-939 which is in use in the Center, itself. In actuality, Mr. Samples' request to listen to two years of dispatch tapes, would require that he use the Dispatch Center's DI-939 recorder exclusively for his review of 17,520 hours of tape. This would have the practical effect of shutting down the Center's operations for an unspecified but significant amount of time while Mr. Samples uses the agency's equipment to listen to the taped communications for the past two years.

Finally, there is the issue of redacting and protecting the confidential information in dispatch communications for the past twenty-four months. Given the voluminous nature of the request, it is impossible for this agency to undertake the task of reviewing 17,520 hours of communications in order to separate the confidential information from the non-confidential, public record aspect.

Amplifying on the agencies' position that HIPAA precludes unrestricted access to the tapes, Mr. Mando observed:

Although cities and counties perform functions that are unrelated to health care, some operations, such as dispatching emergency medical services, fall directly within HIPAA protections. As such, they are "hybrid entities" under HIPAA, and are required to strictly comply with those provisions of this federal law requiring that they maintain the confidentiality of personal health information.

Under HIPAA's privacy rule, for each request that may impact private health information, a covered entity must identify and remove all eighteen (18) elements identified in the Act that could be used to identify the individual, the individual's relatives, employers, or household members.

Under HIPAA, the Dispatch Center would be required to review each and every communication for the past twenty-four months - 17,520 hours of communications - and identify and redact from each of those communications all of the identifiers. Again, this ties directly into the prohibitive and undue burden placed upon the agency, and the impossibility of separating the confidential from the non-confidential material involved in responding to such a broad, blanket request Mr. Samples has made.

Additionally, Mr. Mando invoked KRS 61.878(1)(a) and (i), as construed in Bowling v. Brandenburg, Ky.App., 37 S.W.3d 785 (2000), as additional statutory bases supporting nondisclosure. He noted that in Bowling, the Court of Appeals 5 held that 911 telephone call recordings are exempt from mandatory disclosure under KRS 61.878(1)(a) and (i). Mr. Mando stated:

In Bowling, supra, the requestor sought to overcome the privacy exception in KRS 61.878(1)(a) by reasoning that he was entitled to the tape since it identified him personally. The Court rejected this argument, affirming the "legitimate privacy interests" of those calling into a dispatch center seeking police, fire, or medical assistance. Just as importantly, in OAG 90-117, it was pointed out that the privacy interests of these callers can not be protected by redaction of their identifying information since it is possible that the callers could be identified by the sound of their voices. OAG 90-117.

Arguably, Mr. Samples is in an even more precarious position than the requestor in Bowling v. Brandenburg because Mr. Samples has not limited his request to a review of information personal to him. Instead, he seeks carte blanche access and review of all communications of third parties irregardless of private identities or the content of those communications.

In closing, Mr. Mando rejected the argument that KRS 61.878(5) mandates agency sharing of otherwise exempt public records. Citing Board of Education of Fayette County v. Lexington Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981), he maintained that "there is no unqualified right for one governmental agency to demand or to examine the total files of any other governmental agency" and that "members of one agency enjoy the same, but no greater, right of access to records as are enjoyed by the public at large." In sum, Mr. Mando asserted:

If there is any doubt as to whether this confidential information can be accessed by the prosecutor or his agents, those doubts should be resolved by the judiciary through an application for a search warrant. The Kentucky Open Records Act's provisions for sharing of information between governmental agencies cannot be used as a method to bypass the warrant requirements of the Fourth Amendment.

For these reasons, 6 Mr. Mando urged this office to affirm his client's denial of Mr. Samples' request. Having reviewed the record on appeal, we affirm.

It is the opinion of this office that it is within the discretion of the Pendleton County Fiscal Court and dispatch center to decline Mr. Samples' request for agency sharing of otherwise exempt public records under authority of KRS 61.878(5). That statute provides:

The provisions of this section [containing the exceptions to public inspection] shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.

At pages 6 and 7 of 96-ORD-177, the Attorney General examined KRS 61.878(5) in some depth, observing:

In recent years, this office has characterized this provision as a mandatory stricture under the terms of which one public agency must exchange public records and share information with another public agency if the latter agency is performing a legitimate public function. [Footnote omitted.] While we continue to ascribe to the view that KRS 61.878(5) is aimed at promoting the exchange of information and records to eliminate duplication of effort and conserve resources, and thus should be strongly encouraged, we depart from the view that it is a mandatory provision. To the extent that any prior open records decisions are inconsistent with this position, they are modified accordingly.

In Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), the Kentucky Court of Appeals analyzed the language of KRS 61.878(5) in some depth. [Footnote omitted.] There, the Urban County Human Rights Commission brought an action to compel the Fayette County Board of Education to disclose the county school system's personnel files for the purpose of permitting investigation of an employee's sex discrimination claim. The court held that portions of the files had "no place in an employment or promotion sex discrimination case and no public interest would be served by complete disclosure. " Board of Education at 111. The court did not consider its views:

"In other words," the court concluded, "there is no unqualified right for one entity to examine . . ." the records of another in their entirety and without restrictions. Id. at 111.

96-ORD-177, pp. 6, 7. Although we confirmed that public agency exchange of otherwise exempt public records is a "laudable goal," and one that is to be strongly encouraged, in 96-ORD-177 the Attorney General affirmed the City of Louisville's denial of the Kentucky Human Rights Commission's request for informal complaints filed against Louisville police officers, or at least those complaints for which a particularized showing of exemption could be made, concluding that the City could not be compelled to release these records, KRS 61.878(5) notwithstanding. We determined that "each agency must retain a reasonable measure of discretion to decline the invitation to share its records." 96-ORD-177, p. 7; see also 01-ORD-119 (Northern Kentucky University properly denied NKU Department of Public Safety officer's request for personal information relating to current and former NKU employees identified by name and university department notwithstanding KRS 61.878(5) and officer's claim that the information was needed to further a criminal investigation) . Because the agency sharing provision codified at KRS 61.878(5) is a matter of agency discretion, we find that the Pendleton County Fiscal Court and dispatch center properly elected to treat Mr. Samples as it would treat any other requester under the Open Records Act in according him the same treatment as the public generally. Though his request may have been submitted in the furtherance of a legitimate governmental need, and his employer has the financial resources to assist these agencies in defraying the costs associated with production of the records, the agencies did not violate the Open Records Act in according him the same treatment as the public generally.

As the fiscal court and dispatch center correctly note, Kentucky's courts have determined that the release of records documenting a request for police or medical assistance could, in some instances, "have a chilling effect on those who might otherwise seek assistance . . . ." Bowling at 788 (2000). While we do not concur with the agencies in their view that "dispatch tapes are not public records" and are therefore never subject to public inspection, 7 we recognize that statutory bases may exist for denying access to individual calls made to a dispatch center including KRS 61.878(1)(a), relating to personal privacy, and KRS 61.878(1)(h), relating to calls that are integrally related to an ongoing criminal investigation. See 94-ORD-133; 02-ORD-5. It is for this reason, and in the light of the demonstrated difficulties associated with reviewing over 17,000 hours of audio tapes to insure adequate protection of the privacy and law enforcement interests implicated as well as the technological impediments the agencies describe, that we affirm their denial of Mr. Samples' request on the basis of KRS 61.872(6). 8

KRS 61.872(6) provides:

If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

In construing this provision, the Attorney General has observed:

[KRS 61.872(6)] is intended to afford relief to public agencies where there is a pattern of harassing records requests aimed at disrupting essential agency functions, or, alternatively, where a single records request is such that production of those records would place an unreasonable burden on the agency. To prevent agencies from exploiting this provision as a means of circum-venting the requirements of the Open Records Act, the legislature has provided that refusal under this section be sustained by clear and convincing evidence, prompting this office to observe:

OAG 77-151, p. 3. We have also recognized, however, that:

OAG 76-375, p. 4. In determining whether an open records request is unreasonably burdensome, and thus warrants invocation of KRS 61.872(6), we must weigh two competing interests: that of the public in securing access to agency records, and that of an agency in effectively executing its public function.

96-ORD-155, p. 3, 4.

In 02-ORD-204, this office held that the Kentucky State Police improperly relied on KRS 61.872(6) in denying a request for radio transmissions for a five-hour period on a single day. At issue in that appeal were police radio transmission tapes which have generally been treated as nonexempt public records except upon a showing that they were compiled by the police in the process of detecting and investigating statutory violations and that the police would be harmed by premature release of information to be used in a prospective law enforcement action. See e.g., OAG 89-11; 98-ORD-104; 02-ORD-204. At issue in the appeal before us are tape recordings of 911 telephone calls, in which the Court of Appeals has recognized a "legitimate privacy interest" which may outweigh the public's right to know, for a twenty-four month period. Bowling, at 788. Rejecting KSP's argument that the request was unreasonably burdensome, at page 10 of 02-ORD-204 we declared:

KSP's estimate of the time required to provide [the requester] with a redacted copy of the tapes seems to be based on the presumption that all or major portions of the record may be subject to redaction. The agency offers no explanation why it should presume that the record would contain transmissions subject to the cited exceptions. Based upon this presumption, KSP speculates that it would take individual state troopers eight hours to review the radio conversations, and another eight hours for secondary review by the troopers' supervisors, to identify those portions the disclosure of which would result in harm to prospective law enforcement action, or to determine whether the other cited exemptions apply. Accordingly, we must conclude that the estimate is unsupportable because it is based on a flawed presumption. By the same reasoning, we find that KSP's estimate that it would take 55 hours and 10 minutes for redaction of the six-hundred sixty-two (662) separate radio bits contained in the five hours of recordings (based on its assumption that each bit redaction would average five minutes) is largely unsupported.

Clearly, KSP has gone to some lengths to establish that production of digitally stored radio run transmissions in response to an open records request entails considerable effort. However, as noted above, "[e]very request to inspect public records causes some inconvenience to the staff of the public agency, " OAG 77-151, p. 3. KSP offers no specific proof that production of the five hours of radio run transmissions here requested constitutes an "extreme and unreasonable demand" on its employees' time. OAG 76-375, p. 4. This being the case, we conclude that KSP's reliance on KRS 61.872(6), along with KRS 61.878(1)(h), (a), (i), and (j) was misplaced.

02-ORD-204, p. 10. 9 We believe that the latter decision is clearly distinguishable from the decision we issue today.

Based on the sheer volume of records implicated by Mr. Samples' request, coupled with the technological impediments associated with affording him access by means of on-site inspection, or alternatively reproduction of the records, we find that invocation of KRS 61.872(6) would be warranted in this case. In past decisions, this office has recognized that a request for voluminous documents is not necessarily indicative of an unreasonable burden where the requester states that he is willing to inspect the records himself. See e.g., 97-ORD-6. Thus, we have noted that the presence of some exempt information in the disputed records did not necessarily relieve the agency of the obligation to provide all nonexempt information since "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 97-ORD-6, p. 5, citing OAG 81-198, p. 4.

This holding was predicated on the notion that "the decision [to redact] rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory." OAG 89-76, p. 3. However, the Kentucky Court of Appeals has recognized a "legitimate privacy interest" in portions of the 17,000 plus hours of recorded 911 calls which the Pendleton County Fiscal Court and E-911 Dispatch Center are not at liberty to ignore. These agencies are legally bound to preserve the confidentiality of those portions of the records which implicate protected privacy interests. Because they must protect the confidentiality of these portions of the records, we affirm the fiscal court and dispatch center's denial of the request since "the difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872[(6)]." Id. Accord, 97-ORD-88 (affirming Cabinet for Health Services' denial of request for voluminous records containing information protected by state and federal legislation on the basis of KRS 61.872(6)).

Having said this, we recognize that the Pendleton County Attorney has asserted that these records are integral to the discharge of his official prosecutorial duties. We remind the County Attorney that access to these records is not entirely foreclosed simply because the open records issue presented on appeal was not resolved in his favor. He may, as these agencies correctly observe, apply to the courts for a search warrant and resolution of this issue based on the particular merits of his application. Alternatively, he may appeal this decision to the appropriate circuit court pursuant to KRS 61.880(5) and 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.

Peter O. SamplesOffice of Pendleton County AttorneyDetective Bureau235 Main StreetFalmouth, KY 41040

Jackie StephensOfficial Custodian of RecordsPendleton County Dispatch Center2275 Highway 27 NFalmouth, KY 41040

C. Donald WellsPendleton County Attorney235 Main StreetFalmouth, KY 41047

Henry BertramPendleton Co. Judge/ExecutivePendleton County Courthouse233 Main Street - Room 4Falmouth, KY 41040

Jeffrey MandoAdams Stepner Woltermann & Dusing, PLLC40 West Pike StreetP.O. Box 861Covington, KY 41012-0861

Footnotes

Footnotes

1 Pursuant to KRS 69.360, the Pendleton County Attorney is authorized to employ one or more detectives "to assist him in the preparation of all criminal cases in District Court by investigating the evidence and facts connected with the case."