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 Kentucky Board of Examiners of Psychologists violated the Open Records Act in denying Glenn Odom's March 4, 2013, request for a copy of "Psychological Associates' (Patrick Brown's) response to [Mr. Odom's] Board complaint." We find that the Board's denial of Mr. Odom's request was entirely consistent with the requirements of the Act. 1
In correspondence directed to this office after Mr. Odom initiated his appeal, the Board asserted the propriety of the denial of his request based on the exceptions to public inspection found at KRS 61.878(1)(h), (i), and (j). The Board acknowledged receipt of Mr. Odom's complaint on January 28, 2013, and receipt of the licensee's response to the complaint on March 4, 2013, in accordance with governing regulations. Continuing, the Board explained that its Complaint Committee had "not met since the receipt of the response to review the matter" and determine "whether to dismiss the complaint, assign the matter to an investigator, or file a formal complaint." It was the Board's position that "[t]he response filed by the licensee is a preliminary document and afforded protection from disclosure pursuant to KRS 61.878(1)(i) and (j) while an investigation is ongoing and before the Board takes final action. " 2 We agree.
Kentucky's courts have long recognized that "complaints from individuals, responses, investigative reports, preliminary drafts and notes," maintained by a licensure board, may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j) until final action is taken by that board. Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953, 956 (Ky. App. 1983). In a related case, Kentucky's courts declared that an agency's decision to take no action in a disciplinary matter "constitute[d] its final action. " Palmer v. Driggers, 60 S.W.3d 591, 597 (Ky. App. 2001). Whatever the agency's "final action, " those documents previously shielded from disclosure by KRS 61.878(1)(i) and (j):
which become a part of the records adopted by the Board as the basis of its final action become releasable as public records . . . unless exempted by other provisions of KRS 61.870 to KRS 61.884.
Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under [KRS 61.878(1)(i) and (j)] of the Act.
Kentucky Board of Medical Licensure at 956, 957. Ample authority exists for the position taken by the Board of Examiners of Psychologists, and we find no error in the Board's denial of Mr. Odom's request for a copy of the response to his complaint while the Board's investigation proceeds. 3 Accord, 05-ORD-005 and 12-ORD-164.
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:
Glenn Odom, # 219489Robin VickBrian Judy
Footnotes
Footnotes