Opinion
Opinion By: Albert B. Chandler III, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Emerson A. North Hospital violated the Kentucky Open Records Act by failing to respond to the August 21, 2003, request of Randy Joe Whitson for a "complete copy" of his medical records from that facility. 1 Having received no response to his initial request, Mr. Whitson directed a second letter to the "Records Administrator" of the hospital on October 6, 2003, characterizing it as a "formal" request "[p]ursuant to KRS Chapter 61, which covers the Open Records Act. " Enclosed with the letter was a copy of his initial request. Because both of his letters went unanswered, Mr. Whitson now requests our assistance in acquiring his medical records. Attached to his appeal are copies of each request that he submitted to the hospital. For the reasons that follow, we are unable to require Emerson A. North Hospital to disclose the requested records.
In short, Emerson A. North Hospital is located in Cincinnati, Ohio, and, therefore, is not subject to the provisions of the Kentucky Open Records Act. Although Mr. Whitson is correct in his assertion that Chapter 61 of the Kentucky Revised Statutes contains the Open Records Act, he overlooks the threshold requirement 2 that the "public agency" whose response or lack thereof prompts an appeal must necessarily be a Kentucky agency. Said another way, his appeal is based on the faulty premise that the Attorney General of Kentucky and Kentucky courts have jurisdiction over agencies in Ohio.
For purposes of the Open Records Act, a "public agency" is defined as:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission and authority
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a),(b),(c),(d),(e),(f),(g),(h),(j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee subcommittee, ad hoc committee, advisory committee, council or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a),(b),(c),(d),(e),(f),(g),(h),(i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a),(b),(c),(d),(e),(f),(g),(h),(i), or (j) of this subsection[.]
KRS 61.870(1)(Emphasis added). As revealed by the italicized language, the Act applies only to "public agencies" within the "state" of Kentucky.
Pursuant to KRS 61.882(1):
The Circuit Court of the county where the public agency has its principal place of business of the Circuit Court or the county where the public record is maintained shall have jurisdiction to enforce the provisions of [the Open Records Act] , by injunction or other appropriate order on application of any person.
Thus, the source of a circuit court's jurisdiction to act in open records matters is derived from the explicit language of the Act itself. See Artrip, supra, at 172.
To summarize, the Open Records Act only applies to public agencies located in Kentucky and presumes jurisdiction over the public agency involved. As that prerequisite is lacking here, we are without authority to assist Mr. Whitson in acquiring his medical records.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 According to Mr. Whitson, he spent approximately one week as a patient in the hospital and a few days in one of its programs during 1990.
2 Jurisdiction is a "threshold requirement" for application of the Act. See Artrip v. Samons Construction, Inc., Ky. App., 54 S.W.3d 169, 173 (2001).