Opinion
Opinion By: Jack ConwayAttorney General;James M. HerrickAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Medical Licensure ("KBML") violated the Open Records Act in its disposition of a request originally made August 11, 2014, by attorney Christopher H. Morris, for "any and all complaints, responses, list of allegations, etc., related to [an] Interim Agreed Order" in a pending licensure proceeding against Dr. Timothy W. Carroll. For the reasons that follow, we find no violation of the Act.
The Interim Agreed Order referenced by Mr. Morris, filed with the KBML on March 10, 2014, provides for Dr. Carroll's temporary suspension from the practice of medicine during the pendency of the Board's investigation. KBML records custodian Bertha Wallen initially responded to Mr. Morris on August 14, 2014, by stating that "[i]nformation regarding medical malpractice lawsuits issued against a physician is available through the Department of Insurance" but "the additional information requested is exempt pursuant to the following statute: Statutory Exemption: Preliminary matters: KRS 61.878(1)(h)(i) and (j)."
On August 22, 2014, Mr. Morris replied to Ms. Wallen and requested reconsideration of the denial of the records pertaining to the investigation. On August 25, 2014, Ms. Wallen responded, reaffirming the denial and explaining that "[a]ll of the information requested in regard to the Interim Agreed Order is part of an ongoing investigation; no final action has been taken to resolve the initial grievance which prompted the investigation; and the investigation has not been concluded." She quoted the order itself as stating that "this Interim Agreed Order does not constitute final action on this matter," and explained the further steps in the investigation that must be completed under KRS 311.591 before the Board could take final action.
Mr. Morris appealed to this office on September 12, 2014. He argues that the Interim Agreed Order itself was a "final action" of the KBML and therefore the file should be open for public inspection. Board attorney Leanne Diakov, meanwhile, argues that "the requested materials are part of an open and ongoing investigation; a charging decision has not been made, and thus there has been no final action. "
We decline to address the applicability of KRS 61.878(1)(h) because we find the "preliminary records" exemptions under KRS 61.878(1)(i) and (j) to be dispositive. KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; [and]
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 10-ORD-065 (copy attached), we found that records which are part of an ongoing investigation, including the initiating complaint, are preliminary within the meaning of KRS 61.878(1)(i) and (j), and thus exempt from public inspection, until final action is taken on the matter.
The argument advanced by Mr. Morris, that the Interim Agreed Order temporarily suspending Dr. Carroll from medical practice is itself "final action" by the Board, is untenable. That argument would equally apply, for example, to an agency's decision to place a public employee on special leave for investigative purposes, making the open investigation into alleged employee misconduct open to the public. This would be clearly contrary to the intent of KRS 61.878(i) and (j). Not every agency action is final action.
For the reasons stated in 10-ORD-065, we agree with the KBML that records directly pertinent to its pending investigation may be exempted from disclosure during the pendency of the investigation under KRS 61.878(1)(i) and (j). We hereby adopt the analysis in 10-ORD-065 as the basis for our decision that the KBML did not violate the Open Records Act in this matter.
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.