Opinion
Opinion By: Gregory D. Stumbo, 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 (Board) in response to the open records request of Jon Alig for copies of certain Board records relating to Dr. McClurg violated the Open Records Act.
By letter dated June 29, 2007, Mr. Alig submitted an open records request for copies of documents relative to the disciplinary actions taken against Dr. McClurg.
By response letter of June 19, 2007, Bertha L. Wallen, Open Records Custodian for the Board, advised Mr. Alig: "Please find attached the document(s) you requested."
On July 20, 2007, Mr. Alig submitted a second request asking for the following additional information:
Please provide certified copies of all documents pertaining to the Agreed Order entered on June 19, 2007, case no. 1106; specifically, a copy of the Complaint/Grievance, any operating document that brought about the original charges against Dr. McClurg, the five year contract Dr. McClurg signed on August 9, 2006 with Kentucky Physicians Health Foundation. Furthermore, I am again requesting all investigative reports and witness statements and the letter dated February 2, 2007, from Burns M. Brady, M.D. pertaining to Dr. McClurg.
By letter dated July 27, 2007, Ms. Wallen denied Mr. Alig's request, advising:
Pursuant to your request for open records information regarding the above-named physician, please be advised the information requested is exempt pursuant to KRS 61.878(1)(l), Statutory Exemption.
On August 1, 2007, Mr. Alig initiated the instant appeal asserting that the Board's first response was answered timely, but did not provide all the documents he requested and the second response was untimely and denied his request without an adequate explanation.
After receipt of notification of the appeal, Karen Quinn, Assistant General Counsel for the Board, provided this office with a response to the issues raised in the appeal. In her response, Ms. Quinn advised:
As Mr. Alig admits, the Board responded to his first request in a timely manner. Mr. Alig sent his second request by fax to the Board on Friday July 20, 2007. Board staff contacted Mr. Alig's office by telephone on Tuesday, July 24, 2007, stating that the Board's response would be longer than 3 days due to some of the requested materials possibly being exempt from open records requests. The Board then provided Mr. Alig with the non-exempt materials on July 27, 2007.
The Board's response on July 27, 2007 provided Mr. Alig with some of the materials requested. As for the other materials, the Board denied his request, citing KRS 61.878(1)(l). The underlying legislative enactment exempting the requested documents is contained in KRS 311.616, which provides for the confidentiality of information pertaining to the impaired physicians program. My understanding is that Board staff informed Mr. Alig's office of the confidentiality requirements of KRS 311.616 in the telephone call of July 24, 2007. Specifically, Mr. Alig's request seeks "the five year contract Dr. McClurg signed on August 9, 2006 with the Kentucky Physicians Health Foundation. Such a request is prohibited from open records by KRS 311.616.
Mr. Alig appears to be operating under the belief that a grievance against Dr. Michael McClurg was filed in 2006. This is inaccurate. No such grievance exists, and therefore the Board is unable to provide him with any documents concerning it.
We address the procedural issues first. KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request, or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
The Board's July 27, 2007, response did not comply with the requirements of KRS 61.880(1) in that it failed to cite the underlying statute, operating in tandem with KRS 61.878(1)(l), that authorized withholding the requested records and did not provide a brief explanation as to how that statute applied to the records withheld.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection. " KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
In denying Mr. Alig access to the requested records, the Board merely informed him that its response would be longer than three days "due to some of the requested materials possibly being exempt from open records requests." Such an explanation cannot properly be characterized as "detailed." Accord, 04-ORD-044 (holding that delay until the agency "could do some research on the matter," was insufficient to be characterized as a "detailed explanation" of the cause for the delay). KRS 61.872(5) . Noticeably absent from the Board's response is any reference to the "time, place and earliest date on which" the requested records would be available for inspection. Because the Board failed to notify Mr. Alig of its final decision regarding disclosure of the requested records within three working days and either afford him access to the records within that time frame or provide a detailed rather than impermissibly vague explanation of the reason for the delay as mandated by the provisions of the Act, its response was procedurally deficient in this regard as well.
Next, we address whether the Board properly denied the request for the "five year contract Dr. McClurg signed on August 8, 2006 with Kentucky Physicians Health Foundation," on the basis that the record is confidential under KRS 311.616. Pursuant to KRS 311.616, the Board established an impaired physicians program "to promote the early identification, intervention, treatment, and rehabilitation of physicians." Under KRS 311.619, records furnished to or produced by the program and all records and proceedings of the program which pertain or refer to a physician who may be, or who is actually, impaired shall be privileged and confidential. That statute provides:
(1) All information, interviews, reports, statements, memoranda, or other documents furnished to or produced by the program formed under KRS 311.616, as well as all communications to or from the program, and any findings, conclusions, interventions, treatment, or rehabilitation, or other proceedings of the program which in any way pertain or refer to a physician who may be, or who is actually, impaired shall be privileged and confidential.
(2) All records and proceedings of the program which pertain or refer to a physician who may be, or who actually is, impaired shall be privileged and confidential and shall be used by the program and its members only in the exercise of the proper function of the program and shall not be considered public records nor shall they be subject to court subpoena or subject to discovery or introduction as evidence in any civil, criminal, or administrative proceedings except as described in subsection (3) of this section.
(3) The program may disclose information relative to an impaired physician only:
(4) The program shall report any suspected violation of KRS 311.595 to the board.
Mr. Alig has not shown that any of the circumstances exist in this case that would qualify him to receive this record under KRS 311.619(3). Accordingly, we conclude that the Board properly denied access to this record under KRS 311.619(1) and (2), in tandem with KRS 61.878(1)(l) 1.
The Board's supplemental response to this office stated that Mr. Alig appears to believe that a grievance against Dr. McClurg was filed in 2006 and that fact is inaccurate. The Board advised that no grievance exists and therefore no documents can be provided. To the extent that the Board did not advise Mr. Alig of this fact in its initial response to this request, the response was procedurally deficient. 2
Finally, in his letter of appeal, Mr. Alig stated that not all documents requested were provided. In its responses, the Board asserts that all requested records, with the exception of the contract Dr. McClurg signed with Kentucky Physicians Health Foundation, were provided. With respect to factual disputes of this nature between a requester and a public agency, the Attorney General has consistently recognized:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully[,] any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
03-ORD-61, p. 2, citing OAG 89-81, p. 3.
The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those sought but not provided. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
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.
Jon AligBertha WallenOpen Records CustodianKentucky Board of Medical LicensureHurstbourne Office Park10 Whittington Parkway, Suite 1BLouisville, KY 40222
Karen QuinnAssistant General CounselKentucky Board of Medical LicensureHurstbourne Office Park10 Whittington Parkway, Suite 1BLouisville, KY 40222
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 A supplemental response to a letter of appeal, authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement, and not take the place of or supplant, an agency's original denial or failure to timely respond to an open records request. 98-ORD-139.