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 Department of Corrections Division of Mental Health and Substance Abuse did not violate the Open Records Act in refusing to honor R. Jeffrey Murden's December 20, 2011, emailed request for "records, notes, case study, psychological evaluation (or report from which decisions were made based on the evaluation regarding placement) and Parole Board decisions regarding Shelly Ann Boehner." The Kentucky Open Records Act, as interpreted by the Attorney General, does not recognize email transmission of a records request as a proper mode of transmission. Moreover, the requested records are shielded from disclosure by KRS 61.878(1)(a).
Mr. Murden received no response to his emailed request prompting him to submit this appeal. He attached a copy of a "Release of Confidential Information" signed by Ms. Boehner and dated "Oct. 26, 2011." In correspondence directed to this office following submission of Mr. Murden's appeal, the Division of Mental Health and Substance Abuse responded through Department of Corrections' assistant counsel. Citing KRS 61.872(2), counsel explained that Mr. Murden's request was deficient because it was not "hand-delivered, mailed, or sent via facsimile to the public agency." She relied on 08-ORD-144 for the proposition that public agencies are not required to accept emailed requests unless they "consent, by a clear course of conduct, to transact their open records business by email. " Moreover, counsel noted, Mr. Murden's December 20 emailed request did not include the signed "Release of Confidential Information" which he attached to his appeal. It was the Division's position, as articulated by counsel, that KRS 61.878(1)(a) authorizes nondisclosure of Ms. Boehner's mental health records as a clearly unwarranted invasion of personal privacy. We agree.
In open records decisions dating back to 1998, the Attorney General has determined that KRS 61.872(2) specifies "the method of transmission by which an open records request must be communicated." 98-ORD-167, p. 5. There we applied the rule of statutory construction codified at KRS 446.080(4) in concluding that "until the legislature expands by statute the acceptable methods for transmitting agency responses to open records requests," or the requests themselves, we are confined to the statutorily recognized methods "according to common and approved usage of the language" employed in the statutes. Id. As counsel correctly observes, we found that the requester and the agency "may enter into an express agreement, or consent by a clear course of conduct 1 to transact their open records business by email. " Accord, 99-ORD-129; 03-ORD-162; 07-ORD-105; 09-ORD-224. No such agreement, or course of conduct, existed between Mr. Murden and the Division. We therefore find that the Division did not violate the Open Records Act in rejecting his request. Nevertheless, we believe that the Division should notify requesters, like Mr. Murden, that it does not accept emailed requests and direct him to KRS 61.872(2) to insure proper submission of subsequent open records requests.
With reference to the records in dispute, we remind Mr. Murden that "few records are accorded greater protection than patient medical records." 03-ORD-023, p. 6. In that open records decision, the Attorney General observed:
[T]he 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, Ky., 826 S.W.2d 324, 328 (1992). State and federal legislation support this position. See, e.g., KRS 422.320 (requiring the clerk of the court to permanently dispose of subpoenaed medical records "in a manner that protects the confidentiality of the medical information contained therein"); Health Insurance Portability and Accountability Act of 1996 Public Law 104-191 (establishing standards for privacy of individually identifiable health information and aimed at guaranteeing the privacy and confidentiality of patient medical records). . . .
A copy of 03-ORD-023 is attached hereto and incorporated by reference. Mr. Murden did not submit a properly executed written release from Ms. Boehner with this emailed open records request. This deficiency was not corrected when he attached a "Release of Confidential Information" to his open records appeal. Assuming, for the sake of argument, that Mr. Murden and the Division had expressly agreed, or consented by a course of conduct, to conduct this open records transaction by email, and the Division had denied his request on the basis of KRS 61.878(1)(a), that denial would be consistent with existing legal authority.
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:
R. Jeffrey MurdenKevin PangburnLinda M. Keeton
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