Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Taylor Regional Hospital ("TRH") violated the Open Records Act in its disposition of a request made by attorney C. Dean Furman to inspect records relating to contracts with physicians. For the reasons that follow, we find that the Hospital's response was contrary to the Act.
In his request dated October 31, 2013, addressed to Ramona Hieneman, TRH's Director of Corporate Responsibility, Mr. Furman stated as follows:
We received the attached email from Taylor County Attorney John D. Bertram. He confirmed that Taylor Regional Hospital is a publically owned entity. As such, we would like to make a request in accordance with the Kentucky Open Records Act for a copy of any and all contracts and/or employment agreements between Taylor Regional Hospital and any and all physicians that were in effect within the last twelve months. We will pay for reasonable charges for copying. If possible, we prefer the document in electronic format emailed to us.
(Emphasis added.) On November 6, 2013, Ms. Hieneman responded, in pertinent part:
Taylor Regional Hospital must deny your request. Your request for "any and all" records is more in the nature of a broad discovery request rather than an open records request for precisely described records. See 00-O[R]D-79.
Although the breadth of the request makes it impossible to ascertain with certainty, and without undue burden, the precise documents that are responsive to your request, Taylor Regional Hospital must also assert that the records you request are likely to consist, in whole or part, of confidential and proprietary records, which are exempt from disclosure pursuant to KRS § 61.878(1)(c)(1). Physician contracts and employment agreements consist of: 1) confidential information pertaining to a private person or entity; 2) that is generally recognized as confidential or proprietary; and 3) of such a character that disclosure would permit an unfair commercial advantage to competitors of Taylor Regional Hospital and the physicians to which the contracts pertain. See 09-ORD-031; 96-ORD-135; 97-ORD-66; 01-ORD-87; 08-ORD-083.
Physician contracts and employment agreements contain proprietary compensation methodologies concerning private persons or physician group practices, which if disclosed would place the private persons or physician group practices at a competitive disadvantage. See 97-ORD-66.
(Emphasis in original.)
Mr. Furman appealed to this office on November 15, 2013, arguing that his request was limited to a time frame, agreements in effect within a twelve-month period, and identified a limited class of records, namely "contracts and/or employment agreements between Taylor Regional Hospital and any and all physicians." He contends that "[t]he words 'any and all' do not turn a limited request into a request that is somehow prohibited." As to TRH's statement that such contracts are likely to contain confidential and proprietary information, Mr. Furman asserts that any such information would pertain to the public agency, not to a private corporation, and thus the exception in KRS 61.878(1)(c)(1) would be inapplicable.
On November 26, 2013, attorney Wesley R. Butler responded on behalf of TRH. He argues that Mr. Furman's request did not "precisely describe" the records within the meaning of KRS 61.872(3)(b), for the following reasons:
TRH maintains a current medical staff relationship with over 169 physicians who hold privileges at TRH. For many privilege physicians TRH maintains some form of documentation which may constitute a contract or agreement documenting the nature of the relationship between TRH and each physician. Mr. Furman's request, if read literally, would require TRH to locate, copy and produce physician employment agreements, exclusive professional service agreements (those entered directly or through a practice entity) , physician recruiting agreements (both two-party and three-party agreements), leases, real estate purchase agreements, myriad professional services agreements (including call coverage agreements, specialty coverage agreements, diagnostic reading agreements, and others.) The list could go on. Additionally, there are multiple other documents that TRH maintains with physicians that may be construed as a contract or agreement to satisfy the many licensure, certification, regulatory, and accreditation standards, as well as third-party payor contractual obligations, with which hospitals must comply to operate in Kentucky.
?
? Notably, the request does not seek contracts and agreements that were "executed" over the twelve month period, but rather any and all contracts and agreement "in effect" during that period. ? [H]is request may include all contracts and agreements in effect in 2013 even if executed then years prior.
? Further clarity and precision by Mr. Furman as to the specific documents requested would provide TRH a better opportunity to identify potentially responsive documents.
With regard to the Hospital's invocation of KRS 61.878(1)(c)(1), Mr. Butler characterizes this as "preemptively advis[ing]" Mr. Furman that some of the potentially responsive documents were likely to contain confidential or proprietary information under that subsection; thus, the true basis for the denial of inspection was the claim that Mr. Furman did not "precisely describe" the records. Therefore, TRH was merely "providing Mr. Furman relevant and appropriate open records guidance in the event he decided to re-submit his request." Nevertheless, Mr. Butler, citing 09-ORD-031, points out that some of the agreements between TRH and private physicians may include "detailed financial information concerning the physician's practice expenses and revenue allocations," which "could be used by competing physicians to increase their own market share."
The potential applicability of KRS 61.878(1)(c)(1) is presented to us as purely speculative, and no particular records have as yet been identified by TRH as containing confidential or proprietary information on physicians. Accordingly, we do not consider that question ripe for decision, but merely note that TRH has not yet met the burden of proof that would be allocated to it if it had relied upon KRS 61.878(1)(c)(1) as the basis for its denial. 1 The actual basis for denial, and thus the issue before us, is whether Mr. Furman's request met the "precise description" requirements of KRS 61.872(3)(b).
With regard to requests to receive copies by mail, KRS 61.872(3)(b) provides, in pertinent part:
The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency.
(Emphasis added.) "[T]he primary purpose of the [Open Records] Act is making records available for public inspection? If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 95-ORD-108. "A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17 (internal quotation marks omitted).
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass. " 96-ORD-101. Furthermore, "a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. " 99-ORD-14.
The Hospital argues that Mr. Furman's request failed to meet this standard of precise description. We do not agree. The mere fact that a request uses the phrase "any and all" does not convert the description from precise to imprecise. On its face, Mr. Furman's request contains nothing that makes identification or location of the relevant records impracticable. It identifies a limited class of persons ("physicians") and requests an identifiable category of records ("contracts and/or employment agreements") 2 within a specified period of time ("in effect within the last twelve months"). While the request on its face might encompass a broad range of records and cause some inconvenience to TRH in their retrieval, 3 we nonetheless find that the request "precisely describes" the desired records within the meaning of KRS 61.872(3)(b).
KRS 61.872(6) allows a request for public records to be denied if it "places an unreasonable burden in producing public records. ? However, refusal under this section shall be sustained by clear and convincing evidence. " We find no clear and convincing evidence that production of all potentially responsive records would pose an "unreasonable burden" within the meaning of KRS 61.872(6). Cf. Com. v. Chestnut, 250 S.W.3d 655, 664 ("tedious and time-consuming work" does not automatically constitute an unreasonable burden) .
The Hospital argues that "[f]urther clarity and precision by Mr. Furman as to the specific documents requested would provide TRH a better opportunity to identify potentially responsive documents." It is permissible, in an appropriate case, for a public agency to ask for clarification of a request that appears ambiguous. See 13-ORD-104. Had TRH desired to seek clarification, however, it might have provided Mr. Furman with a comprehensive list of the types of contracts and agreements that existed and asked him which ones were being requested. Instead, it simply denied the request as insufficiently precise, without explaining why it was deemed to be so. TRH's response thus had the effect of frustrating, rather than facilitating, the purposes of the Open Records Act.
Alternatively, TRH could have treated the request as encompassing every type of record that could be characterized as a physician's contract or employment agreement in effect within the relevant time period. It could then have partially denied the request as to the items it deemed confidential or proprietary, providing specific explanations as to why KRS 61.878(1)(c)(1) applied. Since TRH chose neither of these routes, but improperly issued a blanket denial on the basis of imprecise description under KRS 61.872(3)(b), we find that its disposition of Mr. Furman's request was not supported by law.
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 proceedings.
Distribution:
C. Dean Furman, Esq.Wesley R. Butler, Esq.Ramona Hieneman, Esq.
Footnotes
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