Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky Board of Medical Licensure violated provisions of KRS 61.870 to 61.884 when it withheld records, or portions of records, from Thalia Smith, wife of appellant, Warren C. Smith, without citing the statutory basis for doing so, if one legitimately existed, and failed to provide her with a written explanation for the denial. The Board's response was, in all other material respects, consistent with the provisions of the Open Records Act.
By undelivered email dated March 8, 2011, transmitted by U.S. Mail on March 9, 2011, Thalia Smith requested all records concerning her complaint against a physician, including records submitted by the physician, the investigators, and the consultant, a transcript of the hearing that included statements made by the physician, and all other records considered by the hearing panel. In addition, Mrs. Smith posed several questions concerning her participation, or lack thereof, in the investigation and any recourse she might have for its unsatisfactory resolution.
The Board received Mrs. Smith's request on March 14, 2011, and responded one day later. 1 The text of that response stated, in full:
This record is [] certified [x] not certified.
Please find attached the document(s) you requested pursuant to the Kentucky Open Records Act. The Kentucky Board of Medical Licensure is a State agency, which is responsible for maintaining the records concerning medical licensure pursuant to KRS 311.530.
Thank you for allowing us to be of assistance. If you require additional information, please do not hesitate to call our office.
CERTIFICATION
I, Bertha L. Wallen, custodian of the records for the Kentucky Board of Medical Licensure, hereby certify that the attached are true and exact copies of the documents on file with this office.
Shortly after the Board's response reached Mrs. Smith, Mr. Smith submitted an appeal to this office. Mr. Smith questioned the Board's failure to produce records reflecting the physician's attendance and testimony at the hearing and the consultant's identity. He sought resolution of several other issues relating to the hearing which are beyond the scope of KRS 61.880(2), and which we must therefore respectfully decline to consider. 2
In supplemental correspondence directed to this office, the Board indicated that it provided Mrs. Smith with the minutes of the November 18, 2010, meeting at which her complaint was considered and "[t]he investigative report considered and relied upon by the Panel, including materials provided by the Smiths, [the physician's] response, and the Preliminary Consultant Review." With reference to Mr. Smith's particular objections, the Board explained that the minutes with which his wife was furnished reflected the physician's nonattendance. Nevertheless, the Board provided Mr. Smith with "the front page of the Panel minutes for the meeting," identifying all the attendees. The physician's name did not appear on the front page because he did not attend. Because he was not present he could not testify, and the Board was unable to produce a responsive record.
The Board relied on KRS 61.878(1)(a) in redacting the identity of the consultant from the records disclosed, explaining:
In the past, Board consultants have been contacted by the grievant and/or physician, or both, in specific investigations and the consultant has been questioned or harassed. In order to maintain a viable base of consultants to perform this function at minimal remuneration, the Board declines to identify the specific consultant in a specific case, unless a formal complaint is filed.
The record on appeal suggests that the consultant's identity was not the only information, or record containing information, that was withheld without explanation. To this extent, the Board's response violated KRS 61.880(1).
Kentucky's courts have recognized that KRS 61.880(1), "direct[ing] agency action [in responding to an open records request] is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). "[A] limited and perfunctory response to . . . a request" the court continued, does not "even remotely comply with the requirements of the Act." Id. KRS 61.880(1) thus provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Board's original response to Mrs. Smith's request was wholly deficient insofar as it did not identify the records, or portions of records withheld, cite the statutory basis for withholding the record(s), or explain the application of the exception to the record(s) withheld. It appears to be a form letter developed by the Board that does not satisfy the "exact" statutory language. We are foreclosed from determining whether the Board properly withheld from Mrs. Smith records, or portions of records, that were responsive to her request by virtue of the Board's failure to comply with KRS 61.880(1). As noted, the Board did not provide "particular and detailed information" in response to that request. Its supplemental response only marginally enhanced our understanding of its position. Because KRS 61.880(2)(c) assigns the burden of proof in sustaining the denial to the public agency, and the Board failed to meet this burden relative to nondisclosure of, at a minimum, the consultant's identity, and perhaps the consultant's report, we find that the Board improperly withheld the record(s).
Mr. Smith notes that references to "Exhibit # 4 - Review by [redacted] M.D." and "CONSULTANT'S FINDS: [Redacted] M.D., reviewed the medical records and found (Exhibit # 4) no violation of the standard of care provided . . ." appear in the records disclosed to his wife but maintains that she did not receive the consultant's report. Instead, Mr. Smith insists, his wife received the investigative report referencing the consultant's report. In its supplemental response, the Board does not directly address this allegation but indicates that its policy relative to the nondisclosure of the consultant's identity is prompted by the need "to maintain a viable base of consultants" who might otherwise face harassment by the grievant and physician. In support, the Board cites KRS 61.878(1)(a). The Board offers no proof that specific threats were leveled against the consultant in this particular case, or that the circumstances of Mrs. Smith's complaint and its resolution warrant extraordinary protective measures. Conversely, there is a significant public interest in the identity of the consultant. Without knowing his or her identity, the public is precluded from assessing his or her qualifications and the "record" of his or her previous findings. Because Kentucky's courts have rejected "bright-line rule[s] completely permitting or completely excluding from disclosure" 3 public records, or portions thereof, and the Board provides no proof that the consultant's privacy interests here are superior to the public's interest in disclosure, its claim that KRS 61.878(1)(a) authorizes denial of the consultant's identity is unsubstantiated.
So, too, is the Board's apparent refusal to release a copy of the consultant's report. In its supplemental response, the Board indicates that the minutes of its November 18 meeting and the investigative report upon which it relied were released to Mrs. Smith. As noted, the investigative report references Exhibit # 4 as "consultant's findings" and "review by [redacted] M.D." Exhibit # 4 may or may not be the redacted "preliminary consultant review" disclosed to Mrs. Smith in response to her original request. The Board does not clarify. If it is not, the Board must immediately furnish the Smiths with a copy of the consultant's report, including the consultant's identity. If it is, the Board must immediately furnish the Smiths with an unredacted copy that includes the consultant's identity. The Board may not, however, continue to ignore this portion 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.
Distributed to:
Warren C. SmithBertha L. WallenC. Lloyd Vest, II
Footnotes
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