Request By:
Robyn Minor
Murry A. Raines
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Medical Center EMS, LLC, violated the Open Records Act in the disposition of the records request of Robyn Minor, projects Editor, Bowling Green Daily News, (Daily News) , for copies of its "ambulance run logs. " For the reasons that follow, we find that because it does not derive at least twenty-five percent (25%) of the funds expended by it in the Commonwealth of Kentucky from state or local authority funds, within the meaning of KRS 61.870(1)(h), the Medical Center EMS, LLC, is not a public agency for open records purposes and its records therefore are not governed by the Open Records Act. Because the entity is not bound by KRS 61.870 through 61.884, the Medical Center EMS, LLC, cannot be said to have violated the Open Records Act in its disposition of Ms. Minor's request.
By letter dated March 20, 2008, Ms. Minor submitted an open records request to Murray A. Raines, attorney for the Medical Center at Bowling Green and the Medical Center EMS, LLC, requesting copies of certain ambulance service run logs. She argued that the documents would be considered public record because of the Medicaid reimbursements received by the service and would be considered a "public agency" under KRS 61.870(1)(h) because it derives at least 25% of its funds expended in the Commonwealth from state or local authority funds.
Responding by letter the following day, Mr. Raines denied Ms. Minor's request advising, in relevant part:
? I have been advised by my client that the logs you have requested do contain information from which someone could determine the identity of individual patients of the Medical Center's Emergency Medical Services. The Health Insurance Portability and Accountability Act ("HIPAA") prohibits the release of any information which could be considered "personally identifiable health information" absent an exception. Even if applicable, KRS 61.870 is not an exception recognized under HIPAA which preempts state law. As a consequence, disclosure of the run logs to you or anyone else would constitute a violation of federal law and must be declined.
Shortly thereafter, Ms. Minor initiated the instant appeal asking this office to determine whether the Daily News was entitled to the ambulance logs in whole or with possible information redacted.
After receipt of notification of the appeal, Mr. Raines provided this office with a response to the issues raised in the appeal. Addressing first, the claim that the Medical Center EMS, LLC, qualifies as a "public agency, " under KRS 61.870(1)(h), Mr. Raines advised:
? The specific provision relied on by the Daily News is KRS 61.870(1)(h), which defines as a "public agency" any body deriving at least 25% of its expended funds from state or local authority funds. Neither the Medical Center nor Medical Center EMS, LLC, which operates the ambulance service, have currently or at any time in the past satisfied this requirement for the definition of a public agency. The Medical Center and Medical Center EMS records indicate that the only state or local payments received by either entity would be in the nature of Medicaid reimbursement, which for the past fiscal year were 9.61% and 7% respectively. Obviously, neither the Medical Center nor Medical Center EMS meet this statutory definition of a public agency and are not subject to open record requirements.
In addition to the above, the Medical Center EMS argued that information of a personal nature in the ambulance run logs was exempt from disclosure under (1) KRS 61.878(1)(a) and (2) all state laws which require disclosure are specifically preempted by federal statutory requirements under HIPAA and absent a specific exception set out in the HIPAA legislation, state law may not mandate disclosure of information which would be considered personally identifiable information and general "open records" statutes are not recognized as an exception to HIPAA's preemption of state law. 45 CFR § 164.512 .
This office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds from state or local authority funds. 92-ORD-1114; OAG 94-98. Those opinions were premised on the following definition of "public agency" set out in KRS 61.870(1)(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.
As noted in Mr. Raines' response, neither the Medical Center nor Medical Center EMS receive 25% or more percent funding from any state or local authority to qualify as a "public agency, " pursuant to KRS 61.870(1)(h). Accord 00-ORD-90 (Ephraim McDowell Regional Medical Center is not a public agency within the meaning of KRS 61.870(1)(h)). As noted above, Mr. Raines advised that the only state or local payments received by either entity would be in the nature of Medicaid reimbursements, which for the past fiscal year were 9.61% and 7% respectively.
In 93-ORD-90, this office held that Medicare and Medicaid funds do not constitute "state or local authority funds" for purposes of determining public agency status under KRS 61.870(1)(h). Because the Medical Center EMS does not derive at least twenty-five percent of its funds from state or local authority funds, we conclude that it is not a "public agency" within the meaning of KRS 61.870(1), and thus, is not subject to the Open Records Act. Accordingly, it is not required to either release its ambulance run logs, or to adhere to procedural requirements, in response to a request for its records under the Open Records Act.
Moreover, even assuming the Medical Center EMS did qualify as a public agency, the ambulance run logs would be exempt under authority of KRS 311A.190, incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
In 01-ORD-75, this office held that the confidentiality provision of KRS 216B.410(5), the precursor to KRS 311A.190(5), compelled nondisclosure of ambulance and emergency medical services run reports absent a properly executed written release. 1 See also, 01-ORD-137 and 01-ORD-118. KRS 311A.190(5) provides:
Ambulance provider and medical first response provider run report forms and the information transmitted electronically to the board shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form. Only the patient or the patient's parent or legal guardian if the patient is a minor, or the patient's legal guardian or person with proper power of attorney if the patient is under legal disability as being incompetent or mentally ill, or a court of competent jurisdiction may authorize the release of information on a patient's run report form or the inspection or copying of the run report form. Any authorization for the release of information or for inspection or copying of a run report form shall be in writing.
KRS 311A.190(5) contains substantively the same language as KRS 216B.410(5) and requires that records, such as ambulance run logs, be withheld from disclosure unless a properly executed written release is obtained. Accordingly, we conclude the requested ambulance run logs could properly have been withheld under authority of KRS 311A.190(5).
Because the foregoing is dispositive of the instant appeal, we need not address other bases relied up by the Medical Center EMS, LLC, in support of the denial of the request.
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.
Footnotes
Footnotes
1 KRS 216B.410 was repealed by Acts 2002, ch. 211, § 50, effective July 15, 2002, and replaced by KRS 311A.190 enacted by Acts 2002, ch. 211, § 36, effective July 15, 2002.