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 Cabinet for Health Services, Department for Public Health, properly relied on KRS 218A.202(6), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Alecia Lococo's April 14, 2003 request for "records showing [w]hat [Ms. Lococo] received in the way of prescription medication since [the] Department [began] keeping such information." Ms. Lococo's request was prompted by the Department's response to an earlier request for records revealing the identities of individuals who had obtained her prescription history through the KASPER Controlled Substance Monitoring System and her belief that someone may be fraudulently using her identity to obtain prescription medication. For the reasons that follow, we affirm the Department's denial of Ms. Lococo's request.
In a response dated April 16, 2003, Paula York, Pharmacists Consultant in the Drug Enforcement and Professional Practices Branch of the Department for Public Health, relied on KRS 218A.202 to deny Ms. Lococo's request. She explained that the cited provision "is very specific about categories of people who may obtain this information" and that "KASPER information is not a part of the Kentucky Open Records Act. " Ms. York provided Ms. Lococo with a copy of KRS 218A.202. Upon Ms. Lococo's request for reconsideration, the Department reaffirmed its position. This appeal followed.
In supplemental correspondence directed to this office, Assistant General Counsel John H. Walker elaborated on the Department's position:
Pursuant to KRS 218A.202, the Cabinet for Health Services administers an electronic system for monitoring controlled substances. This system, known as KASPER, is a tightly controlled program through which providers and pharmacists are to catalog data on controlled substance use in the Commonwealth. It is designed to be used by providers, pharmacists, licensing and drug program administrators to track use of controlled substances.
In denying Ms. Lococo access to a KASPER report, the Cabinet for Health Services acted pursuant to KRS 218A.202(6) outlining who and what may have access to KASPER reports and under what circumstances access is to be given, and in accordance with KRS 218A.202(8) which states, "The data and any report obtained therefrom shall not be a public record. " Ms. Lococo, as an individual, does not fit within the limited numbers of people who can receive KASPER reports. The General Assembly has specifically exempted records of the KASPER program from access under the Kentucky Open Records Act pursuant to KRS 218A.202(8). KRS 61.884 which allows access to public records containing references to an individual or relating to him does not apply, because the of [sic] General Assembly's action classifying this material as not a public record. An individual may not access a KASPER report on him or herself under either the open records law of the Commonwealth or under the federal Freedom Of Information Act which pursuant to Title 5 of the United States Code does not apply to the states.
Continuing, Mr. Walker observed:
Ms. Lococo has concern that there may be inaccuracies in records pertaining to her, and that these alleged inaccuracies manifest identity theft in Perry County to further efforts by the thief to obtain prescription drugs. The remedy available to her is to contact the local state police post to report the possible theft of identity, to fully disclose to the police authorities the basis for her belief, and to request an investigation be initiated upon herself and her use of controlled substances as reflected in the KASPER report. Upon opening a bona fide investigation upon a specific person, the state police can access KASPER reports to determine whether Ms. Lococo's identity has been misused. The records within the KASPER system are compiled from reports and inquiries made by providers, pharmacists, and licensing and drug program administrators. The police can readily determine whether there has been a theft of identity.
In closing, Mr. Walker indicated that although the Department is sensitive to Ms. Lococo's "concerns over identity theft, it is also sensitive to the potential for misuses of KASPER report data by those whose authority to obtain these tightly controlled records is not established by statute or by order of a court of competent jurisdiction, " concluding that the Department is "also acutely aware of the potential criminal liability for knowing disclosure set by the General Assembly." Given the absolute prohibitions on disclosure codified at KRS 218A.202, we find that the Department did not violate the Open Records Act in denying Ms. Lococo's request.
Pursuant to KRS 218A.202(6), disclosure of KASPER data is narrowly restricted to the following:
(a) A designated representative of a board responsible for the licensure, regulation, or discipline of practitioners, pharmacists, or other person who is authorized to prescribe, administer, or dispense controlled substances and who is involved in a bona fide specific investigation involving a designated person;
(b) A state, federal or municipal officer whose duty is to enforce the laws of this state or the United States relating to drugs and who is engaged in a bona fide specific investigation involving a designated person;
(c) A state-operated Medicaid program;
(d) A properly convened grand jury pursuant to a subpoena properly issued for the records;
(e) A practitioner or pharmacist who requests information and certifies that the requested information is for the purpose of providing medical or pharmaceutical treatment to a bona fide current patient;
Subsection (f) of KRS 218A.202(6) prohibits persons receiving KASPER data "or any report of the system" from providing it to another person or entity "except by order of a court of competent jurisdiction. " Moreover, KRS 218A.202(8) expressly provides that "[t]he data and any report obtained therefrom shall not be a public record. " And, as Mr. Walker notes:
Knowing disclosure of transmitted data to a person not authorized by [KRS 218A.202(6)(f)] or authorized by KRS 315.121 [relating to grounds for acting against a pharmacist's license by the Board of Pharmacy], or obtaining information under this section not relating to a bona fide specific investigation, shall be a Class D felony
KRS 218A.202(10).
Ms. Lococo is not a person authorized by KRS 218A.202(6) or KRS 315.121 to obtain a copy of the KASPER data maintained by the Department that relates to her. Under the express terms of KRS 218A.202(10), the Department is foreclosed from releasing the requested data to her notwithstanding the fact that she is the subject of the data. Pursuant to KRS 61.878(1)(l), the General Assembly has reserved its right to restrict access to records of public agencies. That statute requires public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In enacting KRS 218A.202, the General Assembly has imposed a restriction on access. In discharging his duty to adjudicate disputes arising under the Open Records Act, the Attorney General is required "to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. KRS 218A.202 is a valid enactment of the General Assembly in which that body has placed absolute restrictions on access which this agency cannot ignore. Accordingly, we affirm the Cabinet for Health Services, Department for Public Health's denial of Ms. Lococo's request.
As Mr. Walker also notes, Ms. Lococo is not without recourse. She may proceed through traditional law enforcement channels to determine whether her identity has been stolen to illegally obtain prescription drugs. Ms. Lococo may wish to consider this option. Alternatively, she can appeal this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). 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:
Alecia LococoP.O. Box 7044Hazard, KY 417
Danna E. Droz, RPh, JDDrug Enforcement & Professional PracticesCabinet for Health Services275 East Main Street, HS2GW-BFrankfort, KY 40621-0001
Paula York, RPhDrug Enforcement & Professional PracticesCabinet for Health Services275 East Main Street, HS2GW-BFrankfort, KY 40621-0001
John WalkerAssistant General CounselCabinet for Health Services275 East Main StreetFrankfort, KY 40621