Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This open records appeal having been presented to the Office of the Attorney General, and the Attorney General being sufficiently advised, we find that University Physicians Associates, Inc., violated KRS 61.880(1) in failing to respond to Keith Smith's July 7, 2011, request for records relating to "changes in the recognized patient use of the Gold Card at any facility controlled by UPA for the past year, . . . implementation of said changes and their effective date, . . . patient notifi[cation] of said changes, . . . [and] the purposes of the changes." In the absence of specific proof refuting UPA's belated assertion that it maintains no records responsive to Mr. Smith's request, we find no other violation of the Act.
In an undated letter that reached Mr. Smith on July 16, 2011, Diane Partridge responded to his request. Ms. Partridge identified herself as "VP of Marketing and Communications" for "University of Louisville Physicians" on letterhead indicating that ULP is "A proud member of U of L Health Care." She stated that she was "writing on behalf of Michael Bukosky, CEO of University Physicians Associates," and provided Mr. Smith with a copy of "the policy and procedure guidelines and an eligibility application for UPA's Sliding Fee Scale Discount Program (Gold Card)," but disclaimed knowledge of "policy changes at University of Louisville Hospital." Ms. Partridge expressed the belief that Mr. Smith's "comments are related to the laboratory services provided by University Hospital and recent changes to their discount eligibility scale," and suggested that he direct questions "about policy changes at University of Louisville Hospital to Ken Marshall, COO at University of Louisville Hospital."
In supplemental correspondence directed to this office, UPA explained that UPA's sliding fee scale program has not changed. Continuing, UPA noted that the fees Mr. Smith contests were not associated with services performed by UPA physicians or otherwise related to its programs. Instead, the fees were associated with services performed in a University Hospital laboratory. It was UPA's position that "[t]he Hospital may have changed its discount eligibility scale, but UPA does not possess any documents related to any changes the Hospital may have made." Thus, UPA maintained that it "has responded completely to Mr. Smith's request." We disagree.
UPA did not adhere to KRS 61.880(1) in formulating its original response to Mr. Smith's request. KRS 61.880(1) 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.
UPA's response was ostensibly delinquent 1 and devoid of any admission or denial that it maintained responsive records. Its response was far from complete, and, in fact, violated KRS 61.880(1) by failing to unequivocally state that the requested records did not reside in its custody. OAG 83-38; OAG 90-26; OAG 91-101; 96-ORD-164; 01-ORD-59. Had UPA done so, this appeal might have been avoided.
Given Mr. Smith's allegation that UPA "operates" the facility at which the contested service was performed, and the relationship between the various entities suggested by Ms. Partridge's original response, it is reasonable to question whether UPA was privy to communications concerning changes in University Hospital's discount eligibility scale. Belatedly, UPA denies that it was. In light of UPA's assertion that it "does not possess any documents related to any changes the Hospital may have made," and, absent a " prima facie showing" that this claim is false, we can proceed no further in our analysis.
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005) (copy enclosed). We trust that UPA conducted an adequate search for any such records and that it will continue to do so in responding to future open records requests, resorting to a denial based on the nonexistence of the records sought only when its search yields no results.
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:
Keith SmithDiane PartridgeBenjamin G. Dusing
Footnotes
Footnotes
1 Because the response was undated, we cannot absolutely determine if the delay in Mr. Smith's receipt was occasioned by the agency's dilatoriness or by the U.S. Mail.