Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Airport Board violated the Open Records Act in the disposition of Lexington Herald-Leader reporter Jennifer Hewlett's August 27, 2009, request for an unredacted copy "of the $ 10,000 check written in mid-July 2008, just before then-airport executive director Michael Gobb flew to Arizona . . . [and] copies of any and all written references to that check between chairman of the Airport Board and other Board members." The Board responded to Ms. Hewlett's request, through its Deputy Director of Airport Services and Community Relations Brian Ellestad, on September 2, 2009, advising her that a copy of the check would be released, but that payee information would be redacted. In support, the Board invoked KRS 61.878(1)(a) and KRS 61.878(1)(k), incorporating 45 CFR § 165.502(a), and asserted that payee information "constitutes confidential health information." Mr. Ellestad indicated that the Board was "in the process of retrieving and reviewing . . . additional public records potentially responsive to [her] second request that [were] in storage or in active use, " and assured her that he would send her "[a supplemental response by September 18, 2009, regarding these additional public records. " For the reasons that follow, we find that the Board's reliance on the cited exceptions was misplaced, and its redaction of payee information constituted a violation of the Open Records Act. 1 Further, we find that the Board's response was procedurally deficient insofar as it did not include a detailed explanation of the cause for delay in producing "written references to th[e] check." 2
In supplemental correspondence directed to this office following commencement of Ms. Hewlett's appeal, the Board amplified on its position. Attorney Tom Halbleib addressed first the Board's disposition of her request for written references to the check. He explained that following "a thorough search of its records, including a search of archived email correspondence of former employees, " one record was located and made available to Ms. Hewlett on September 18. In support of the Board's redaction of payee information from the requested check, Mr. Halbleib cited a number of open records decisions issued by this office recognizing that "[f]ew records are accorded greater protection than patient medical records." 06-ORD-209. He observed:
Disclosure of the payee of this check would identify a provider of a specific type of health care services and, by inference, that a specific person received treatment for a condition requiring that type of health care services. Although there exists a clear public interest in the expenditure of public funds, this interest must be balanced against the individual's privacy interest in the medical condition for which the person has sought treatment and the identity of those from whom the person has sought treatment. Disclosure of the redacted check ensured that the public was informed of the amount of money expended, and the citation to the privacy exemption for medical information provides a partial explanation of the reason for the expenditure.
On this basis, the Board concluded that "the public's interest compelled disclosure of a copy of the check but that disclosure of the identity of the payee, from which the nature of the condition for which treatment was sought could be inferred, would constitute an unwarranted invasion of personal privacy. " Respectfully, we disagree.
In the interest of brevity, we will not restate the applicable test for determining the propriety of agency invocation of KRS 61.878(1)(a) authorizing nondisclosure of "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The Board has correctly framed the test in its supplemental response. However, it is the decision of this office that in weighing the competing public and private interests in the redacted information, the balance tips in favor of disclosure. Our analysis follows.
The record at issue in this appeal is a check reflecting the disbursement of public funds. The Board acknowledges a "clear public interest in the expenditure of public funds, " but assigns insufficient weight to that interest. As the Attorney General has frequently observed: "Amounts paid from public coffers are . . . uniquely of public concern . . . ." OAG 90-30, p. 3. In other words, "where public funds go, the public's interest follows." 96-ORD-50, p. 4. Redaction of payee information from the requested check precludes the public from verifying "where" $ 10,000 in public funds went. The public's interest in payee information is therefore strongly substantiated.
No less weighty is the privacy interest associated with medical information contained in a public record. Thus, in the open records decision cited by the Board in support of its position the following language appears:
Few records are accorded greater protection than patient medical records. Indeed, in a different factual context the Kentucky Supreme Court has determined that information elicited within the relationship of a health care provider and his or her client is "both personal and private," that disclosure of records containing such information "would constitute a serious invasion of personal privacy, " and that with regard to such records "there is a . . . public interest in personal privacy [that is] strongly substantiated. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, 826 S.W. 324, 328 (Ky. 1992).
06-ORD-209, p. 2, citing 05-ORD-239 and 03-ORD-023. The redacted information in the appeal now before us is not, however, "information elicited within the relationship of a health care provider and his or her patient/ client," but is instead information identifying the provider/payee from which inferences as to the condition for which treatment was sought can be drawn. The Board assigns too much weight to the privacy interests implicated by disclosure of this information. In our view, payee information is less personal in nature than details of patient/ client symptoms, diagnosis, and course of treatment.
Where, as here, the public and private interest are nearly equal in weight, the balance tips in favor of disclosure. In so holding, we are guided by the statement of legislative policy codified at KRS 61.871, and declaring that "free and open examination of public records is in the public interests and the exceptions provided for by KRS 61.878 . . . shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others," as well as the judicially recognized principle that Kentucky's Open Records Act, "exhibits a general bias favoring disclosure, " Board of Examiners, above at 327. Fundamental to our conclusion is the fact that the Board has not "effectually promoted the public interest" in monitoring the expenditure of public funds "from the already-disclosed portion of the record . . . ." Board of Examiners at 328. The Board asks the public to blindly accept its assertion that the funds were properly expended. The Open Records Act requires more by guaranteeing the public's right to "see for itself." We therefore find that the public's interest in disclosure outweighs Mr. Gobb's privacy interests, and that the Board violated the Act in redacting payee information from the $ 10,000 check Ms. Hewlett requested.
Turning to the Board's second argument in support of nondisclosure, we continue to ascribe to the view that "'covered entities' must disclose health information under the 'required by law' exception to HIPAA to the extent that disclosure is required by the Kentucky Open Records Act. " 08-ORD-225, p. 2, citing 08-ORD-188 and 08-ORD-166. The latter open records decision is attached hereto and incorporated by reference. Assuming, arguendo, that the Board is a "covered entity," and the disputed payee information is "protected health information," we find that disclosure of that information is required by the Open Records Act per the analysis set forth above. With all due respect to the Board, and its opposing view, we must apply the law that we believe in good faith is correct until that position has been rejected by a published opinion of an appellate court. Our decision thus represents controlling precedent in this forum until such time as it is expressly repudiated. 06-ORD-230; 07-ORD-132, p. 7 ("Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected in the [referenced] line of decisions . . ."); see also, 09-OMD-115. The Board presents no legal authority repudiating our position, and we therefore find that its reliance on HIPAA to support nondisclosure was misplaced.
Beckham v. Jefferson County Board of Education, 873 S.W.2d 575 (Ky. 1994) recognizes that a party affected by the decision of a public agency to release records, in response to an open records request, has standing to contest the agency decision in the appropriate circuit court when the party believes that disclosure of the records would constitute a clearly unwarranted invasion of personal privacy. If, upon review of this decision, the Board agrees with the holding set forth herein, it may wish to notify Mr. Gobb of its intention to release payee information on the $ 10,000 check so that he is afforded an opportunity to assert a claim for nondisclosure under Beckham. Otherwise, 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 The Board also redacted the bank account number appearing on the check. The Herald-Leader does not object to this redaction.
2 The Board's disposition of Ms. Hewlett's request fell short of the procedural mark. Although it recited the language of KRS 61.872(5) relative to the records responsive to the second part of her request, advising her that they were "in storage or in active use, " it offered no further explanation for the delay in producing these records. KRS 61.872(5) 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.
(Emphasis added.) The Board's initial response did not contain "a detailed explanation of the cause" for delay. It was not until Ms. Hewlett initiated this appeal, and the Board filed its supplemental response, that the Board explained that it was required to "undert[ake] a thorough search of its records, including a search of archived email correspondence of former employees, for records responsive to Ms. Hewlett's second request." To the extent that it failed to include this explanation in its original response, the Board violated KRS 61.872(5).