Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether CorrectCare Integrated Health violated the Open Records Act in the disposition of Donald R. Hall's October 2, 2008, request for copies of all medical records relating to him that CorrectCare has in its possession including "all requests by the Department of Corrections' medical staff to perform any tests, lab work, or procedures that must be performed outside the institution." Mr. Hall emphasized that his request was limited to records in CorrectCare's possession and not to records in the possession of the Department of Corrections. For the reasons that follow, we find that CorrectCare did not violate the Act in the disposition of Mr. Hall's request.
By letter dated October 8, 2008, CorrectCare Secretary/Treasurer Jenny Kahler advised Mr. Hall that the company she represented was unable to provide responsive records. She explained that "[t]he Kentucky Department of Corrections holds the records you are requesting," and that he "must make this request through the proper channels at [his] facility." Shortly thereafter, Mr. Hall initiated this appeal, suggesting that CorrectCare "continuously circumvents their response by directing this request to the Department of Corrections . . . ."
In supplemental correspondence directed to this office following commencement of Mr. Hall's appeal, CorrectCare Vice-President Linda Goins explained that the company "performs utilization management and claims processing for the KYDOC through a contract with the University of Kentucky . . . [which] has an agreement with the KYDOC." Ms. Goins again denied possession of any responsive records, indicating that the documentation it reviews for purposes of pre-authorization for outpatient or specialty care "is directly from the inmate's KYDOC medical record." CorrectCare attorney Michael R. McDonner confirmed this position by letter dated November 6, 2008, observing:
The maintenance of inmate medical records is the sole responsibility of the Kentucky Department of Corrections . . . [w]hile CorrectCare employees have access to review those records while providing treatment, they do not maintain custody of those records and CorrectCare does not have an independent copy of the records.
Voicing no objection to the release of the records identified in Mr. Hall's request by the Department of Corrections, Mr. McDonner suggested that Mr. Hall use the "procedure in place [whereby] inmates can freely review their medical documents." 1 In the absence of a prima facie showing by Mr. Hall that CorrectCare "prepared, owned, used . . . possess[ed], or retained" the requested records," 2 we affirm CorrectCare's disposition of his request.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, 3 pertaining to management of public records, the Act regulates access to public records that have been prepared, owned, used, in the possession of or retained by a public agency. Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is subject to public inspection. Thus, in an early opinion the Attorney General observed:
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(6)).
OAG 82-27, p. 3 (overruled on other grounds in OAG 82-277). Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See, e.g., 95-ORD-125 (Louisville Firefighters Pension Fund properly denied request for confirmation tickets reflecting investment transactions made on its behalf by a private corporation with which the Fund had contracted to manage its assets); 97-ORD-15 (University of Kentucky was not obligated to retrieve a fee agreement between a University employee and a private attorney from the attorney in whose custody the agreement resided); 98-ORD-90 (correctional facility was not obligated to contact a toothpaste manufacturer to obtain a copy of the material safety data sheet for toothpaste used at the facility in order to satisfy an inmate's open records request).
CorrectCare asserts that it does not maintain custody of the records identified in Mr. Hall's request. Although it apparently reviews the inmate's medical records under its contract with the University of Kentucky, it is the Department of Corrections that prepares, owns, uses, and retains the records. Like other agencies before it, CorrectCare finds itself in the position of "proving a negative" relative to its custody of the records sought. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed:
The Open Records Act is silent as to the procedure to be followed when a requester seeks to enforce the Act over a public agency's denial of the record's existence. The Act contemplates that an agency will deny an open records request when it believes that the requested records are exempt, but it does not envision a situation . . . where the agency claims that the records do not exist.
. . .
[T]he best way to uphold [the basic policy of the Act, recognizing "that free and open examination of records is in the public interest," when an agency denies the existence of the requested records] is to ensure that the complaining party has an opportunity to disprove a public agency's denial of the existence of records . . . To hold otherwise could remove accountability from the open records process, allowing public agencies to avoid judicial review by denying a record's existence altogether rather than claiming a statutory exemption.
Nevertheless, the Court continued:
[T]he General Assembly has also evidenced a concern that public agencies not be unreasonably burdened and that essential functions not be disrupted by open records requests. KRS 61.872(6). The unfettered possibility of fishing expeditions for hoped-for but nonexistent records would place an undue burden on public agencies. In order to refute a complaining party's claims to a nonexistent record, the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives.
On this basis, the Court concluded "that before a complaining party is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records], he or she must make a prima facie 4 showing that such records do exist."
Mr. Hall makes the unsubstantiated claim that CorrectCare maintains the records he seeks. He makes no actual showing, prima facie or otherwise, that the records reside in CorrectCare's custody. In the absence of such a showing, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government, above, to affirm CorrectCare's position. Accord, 06-ORD-042; 06-ORD-223; 07-ORD-045; 07-ORD-085; 07-ORD-188; 07-ORD-218.
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 CorrectCare Integrated Health did not dispute its status as a public agency per KRS 61.870(1) in either this appeal or the appeal that resulted in the issuance of 07-ORD-219.
2 KRS 61.870(2).
3 See, KRS 61.8715.
4 Black's Law Dictionary, 1071 (5th ed. 1979), defines the term prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."