Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky ("UK") violated the Open Records Act in withholding correspondence with a hospital regarding the hospital's compliance with cancer registry reporting requirements. We find that UK violated the Open Records Act in withholding correspondence with a hospital regarding the hospital's compliance with cancer registry reporting requirements.
Background
Guilfoyle submitted an open records request to Dr. Thomas Tucker, Director of the Kentucky Cancer Registry ("KCR"), on Mar. 12, 2015. The KCR is administered by the Markey Cancer Center at UK under KRS 214.556(1). Guilfoyle requested:
1. All correspondence including e-mails between the KCR or its agents and Mercy Hospital Partners of Lourdes, Inc. ("Lourdes Hospital") regarding deficiencies in Lourdes Hospital's reporting to the KCR, lateness of such reporting or the comprehensiveness of such reporting.
2. All correspondence including e-mails between the KCR or its agents and Lourdes Hospital's parent organization, Mercy Health Partners, regarding deficiencies in Lourdes Hospital's reporting to the KCR, lateness of such reporting or the comprehensiveness of such reporting.
Guilfoyle added, "please be assured that I am not requesting any data that might be deemed privileged under KRS 214.556(6)."
UK responded on Mar. 18, 2015, denying the requests in their entirety on the grounds that "all correspondence between the KCR and any of the reporting entities about the reports is privileged. " UK cited to KRS 214.556(6) and stated that "this language is clearly much broader than the data itself, and expressly includes reports, interviews, statements, and 'all information.'" UK further argued that "ensuring that KCR and reporting entities can freely discuss these reports is very important to the process and helps ensure that entities provide accurate and complete data. The legislature is aware of this need and has adopted appropriate language to protect these exchanges."
Guilfoyle initiated this appeal on Mar. 30, 2015. Guilfoyle argued:
KRS 214.556(6) only protects from disclosure information or data furnished to KCR by reason of this section . Specifically, KRS 214.556(2) requires all health facilities providing diagnostic services or treatment to cancer patients to furnish to KCR data related to each case of cancer seen at the facility. Thus, information furnished to KCR 'by reason of this section' includes patient information related to a patient's cancer, diagnosis, treatment, and outcome. Information furnished by KCR 'by reason of this section' does not include correspondence between KCR and a facility related to that facility's failure to comply with KRS 214.556(2). . . .
Further, KRS 214.556(6) permits the KCR to make public any information that the disclosure of which would promote the public health goals of KRS 214.556. The fact that a hospital subject to KRS 214.556 is not completely and timely complying with the statute is information which the public is entitled to know. Indeed, hospitals that fail to comply with KRS 214.556 are subject to administrative fines pursuant to KRS 214.556(2). It is apparent from this blanket denial . . . that KCR made no effort to analyze whether this provision in KRS 214.556(6) applies. Certainly, the public should be privy to information that a hospital has exposed itself to administrative fines by failing to comply with a statute designed to promote the health of Kentucky residents.
UK responded on Apr. 17, 2015. UK argued that the language of KRS 214.665(6) "covers 'all information,' not merely data and subsets of data. . . . To accept Guilfoyle's argument, one must ignore all other words in the statute and read 'data only.' This is an absurd result . . . ." UK further cited to 11-ORD-176 for the proposition that "the Attorney General's Office declined to find that the Legislature had granted KCR the authority to make decisions about what documents should be provided." UK noted that after 11-ORD-176, "the Kentucky Legislature expressly amended the applicable statutory language, and made it very clear that the privilege was not so limited, was expressly applicable to open records requests, and expressly delegated authority to KCR to determine if a request for non-identifiable information was in the public interest. " Invoking this statutory authority, UK stated that "KCR has expressly determined that release of the requested documents would be contrary to the public interest and contrary to the statutory directives." UK argued that "if health care facilities across the state are not free to enter into privileged dialog and discussion with KCR . . . then KCR's ability to query data and receive information that provides it critical information about the data is harmed, and so is the public health. " UK supported this statement with an affidavit from Dr. Tucker. 1 UK concluded that "Guilfoyle's argument that the statute is limited to 'data' and only data is not supportable by the reporting process, the statute, the intent of the legislature, or the express delegation to KCR to make the determination of what disclosures are in the public interest. "
Guilfoyle submitted a supplemental response on Apr. 28, 2015. Guilfoyle reiterated his argument that "KRS 214.556(6) only protects information 'furnished by reason of this section.'" Guilfoyle further argued that "the information requested does not contain any patient-specific or treatment-specific information," discussing 04-ORD-077, 11-ORD-176, and the amendment to KRS 214.556(6). Guilfoyle stated that the amendment to KRS 214.556(6) demonstrated that "the statute contemplates that some such information is not privileged and may be disclosed or published "to further the public health goals set forth herein." . . . If a hospital like Lourdes is behind in its reporting to the KCR . . . that undermines the public health goals set forth in KRS 214.556."
Analysis
I. History of KRS 214.556(6)
KRS 214.556(2) provides:
Each licensed health facility which provides diagnostic services, or diagnostic services and treatment, or treatment to cancer patients shall report to the Kentucky Cancer Registry, through the cancer patient data management system and in a format prescribed by the Kentucky Cancer Registry, each case of cancer seen at that health facility. Failure to comply may be cause for assessment of an administrative fine for the health facility, the same as for violation of KRS 216B.250.
KRS 214.556(2) requires all facilities providing cancer treatments to report each case of cancer to the KCR through the cancer patient data management system. Failure to do so may subject the health facility to fines of between one hundred dollars ($ 100) and five hundred dollars ($ 500) for each violation. KRS 216B.990(4).
KRS 214.556(6) provides:
All information, interviews, reports, statements, memoranda, or other data furnished by reason of this section, expressly including all portions, subsets, extracts, or compilations of the data as well as any findings or conclusions resulting from those studies, shall be privileged and shall not be considered public records under KRS 61.870 to 61.884. The Kentucky Cancer Registry may determine that certain extracts, subsets, or compilations of data do not reveal privileged information and may be published or otherwise shared to further the public health goals set forth herein.
KRS 214.556(6) expressly exempts from the Open Records Act "all information, interviews, reports, statements, memoranda, or other data furnished by reason of this section, expressly including all portions, subsets, extracts, or compilations of the data as well as any findings or conclusions resulting from those studies." It gives the KCR discretion to determine that "certain extracts, subsets, or compilations of data do not reveal privileged information and may be published."
KRS 214.556(6) has been discussed in detail only in two Open Records Decisions, 04-ORD-077 and 11-ORD-176. In 04-ORD-077, the requester sought disclosure of statistical information regarding incidents of breast cancer in Jefferson County. We held that "although the University was actuated by its commitment to strictly observe the privilege relating to Registry 'information, interviews, reports, statements, memoranda, or other data,' set forth at KRS 214.556(6), its reliance on that provision, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), to withhold the statistical data sought was misplaced." Id. We reasoned that "fundamental . . . is the question of whether disclosure of the statistical complication would enable the public to readily identify persons to whom the protection extends. . . . We find that that question must be answered in the negative," id. , relying on Hardin Cnty. Sch. v. Foster, 40 S.W.3d 865 (2001). In 11-ORD-176, the same requester again sought "statistical information on female breast cancers in Jefferson County, Kentucky." We followed 04-ORD-077 and concluded:
UK did not violate the Open Records Act in declining to reformat its database or create a record for the purpose of complying with Dr. Coleman's request for statistical KCR data but did interpret KRS 214.556(6) too expansively in refusing to provide him with access to existing responsive data which is "not descriptive of any readily identifiable person" consistent with 04-ORD-077.
11-ORD-176. 04-ORD-077 and 11-ORD-176 held that individually identifiable information was privileged under KRS 214.556(6) , but that disclosure of purely statistical data which did not identify any person was not exempted from the Open Records Act.
Notably, in 11-ORD-176, UK advanced the argument that it had the authority to determine which data could be released, which we rejected:
UK asserted that its "formal document process for data requests" is necessary for compliance "with [its] statutory duties," and that "authority to establish the process and mandate these requirements" can be found in KRS 214.556(6), which further authorizes the director of the KCR to "evaluate requests and determine if the request is appropriate" according to UK; however, a review of KRS 214.556 does not confirm any of these assertions.
At the time, KRS 214.556(6) provided only that "[a]ll information, interviews, reports, statements, memoranda, or other data furnished by reason of this section and any findings or conclusions resulting from those studies shall be privileged. " 11-ORD-176. KRS 214.556(6) contained no provision endowing the KCR with any discretion in determining what data should be released at the time of 11-ORD-176.
Subsequent to 11-ORD-176, KRS 214.556(6) was amended into its present form by S.B. 57 (2012) to endow the KCR with the discretion it claimed to have in 11-ORD-176. The change to KRS 214.556(6) was proposed as House Floor Amendment 3 to S.B. 57. 2 Floor Amendment 3 added the following language to KRS 214.556(6):
[EDITOR'S NOTE: TEXT WITHIN THESE SYMBOLS [O> <O] IS OVERSTRUCK IN THE SOURCE.]
(6) All information, interviews, reports, statements, memoranda, or other data furnished by reason of this section [O>expressly including all portions, subsets, extracts, or compilations of the data as well as<O][[O>and<O]] any findings or conclusions resulting from those studies shall be privileged [O>, and shall not be considered public records under KRS 61.870 to 61.884. The Kentucky Cancer Registry may determine that certain extracts, subsets, or other compilations of data do not reveal privileged information and may be published or otherwise shared to further the public health goals set forth herein<O]. 3
Floor Amendment 3 expressly included compilations of the data submitted to the KCR, and expressly exempted them from the Open Records Act. It vested the KCR with absolute discretion as to which compilations of data could be released.
Rep. Rocky Adkins explained the purpose of Floor Amendment 3 on the House floor:
House Floor Amendment number three is, takes the current statute that we have and tends to protect individual patient confidentiality. There's an AG's opinion that determined that all existing registry information including patients cancer and medical information is subject to disclosure under the Open Records Law by redacting patient identifiers. Despite redaction, some patient identifiers may be determined with little effort when combined with other public accessibility data. This is particularly true in small communities like many of us live. The amendment does not eliminate access to the registry information. The amendment simply tightens up the registry's ability to protect individual patient identities without eliminating access to critical data maintained by the registry. 4
Rep. Adkins explained that the intent of Floor Amendment 3 was to supersede an Attorney General's decision, presumably 11-ORD-176. The legislature was concerned that even with redaction, cancer patients could be identified by combining statistical data from the registry with other publicly accessible data. The express purpose of Floor Amendment 3 was to tighten up "the registry's ability to protect individual patient identities without eliminating access to critical data maintained by the registry. "
KRS 214.556(6) has not been interpreted since its amendment by S.B. 57, and our prior open records decisions dealt only with disclosure of statistical information, and not correspondence indicating whether the reports required by KRS 214.556(2) have been timely filed. This appeal thus presents a question of first impression: whether correspondence concerning whether the reports required by KRS 214.556(2) have been timely filed constitutes "information, interviews, reports, statements, memoranda, or other data furnished by reason of this section" under KRS 214.556(6). KRS 214.556(6) exempts from the Open Records Act "information, interviews, reports, statements, memoranda, or other data furnished by reason of this section." KRS 214.556(2) provides that hospitals "shall report to the Kentucky Cancer Registry, through the cancer patient data management system and in a format prescribed by the Kentucky Cancer Registry, each case of cancer seen at that health facility. " Guilfoyle argues that the information "furnished by reason of this section" only includes "patient information related to a patient's cancer, diagnosis, treatment and outcome. UK argues that "the language covers 'all information' not merely data and subsets of data."
II. Interpretation of KRS 214.556(6)
KRS 61.871 provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
KRS 61.878 indicates that it is the express policy of the legislature in enacting the Open Records Act to favor free and open examination of public records, and exceptions shall be strictly construed. "The Act's basic rule, furthermore, is that '[a]ll public records shall be open for inspection by any person,' KRS 61.872(1), the only exceptions being those for which the General Assembly expressly provides. . . . Those exceptions are to be 'strictly construed, ' KRS 61.871 . . . ." Lawson v. Office of the Attorney Gen., 415 S.W.3d 59, 65 (Ky. 2013). "This general rule . . . 'is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public . . . .'" Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013) (quoting Ky. Bd. of Examiners of Psychologists v. Courier Journal & Louisville Times Co., 826 S.W.2d 324, 328 (Ky.1992)). See also Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. Ct. App. 2001) ("The Act undoubtedly militates in favor of disclosure . . . ."). Exceptions to the Open Records act are to be strictly construed, and the public has a right to inspect records to reveal whether public agencies are performing their functions properly.
The basic rule that exemptions to the Open Records Act are to be strictly construed favors a narrower interpretation of "information furnished under this section" as referring only to information regarding individual cancer patients furnished in the reports made to the KCR. The basic rule of the presumption of access is grounded in the public's right to verify whether agencies are performing their duties. To hold that "all information" pertaining to the KCR is forever privileged and exempt from open records requests would make it extremely difficult to verify whether the KCR and the agencies reporting to it are actually performing their duties. The language in KRS 214.556(6) is not strong enough to warrant such a conclusion. While we empathize with the difficulty and complexity of reporting cancer cases, and the necessity of open and candid communications with hospitals, as stated by Dr. Tucker, we do not find statutory support for the claim that the interest in such communications rises to the level of affording the KCR an absolute privilege in all communications.
The narrower interpretation of KRS 214.556(6) is confirmed by the legislative history of Floor Amendment 3. "In construing statutes, our goal, of course, is to give effect to the intent of the General Assembly. We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration." Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011). "There is no invariable rule for the discovery of that intention. The actual words used are important but often insufficient. The report of legislative committees may give some clue. . . . Words spoken in debate may be looked at to determine the intent of the legislature." Fiscal Court of Jefferson Cnty. v. City of Louisville, 559 S.W.2d 478, 480 (Ky. 1977). The House debate on Floor Amendment 3 indicates that the legislature was primarily concerned with protecting individual cancer patients from being identified through release of statistical data. Further, Rep. Adkins expressly stated, "the amendment does not eliminate access to the registry information. The amendment simply tightens up the registry's ability to protect individual patient identities without eliminating access to critical data maintained by the registry. " Nowhere was any intent expressed that KCR should be completely exempt from all open records requests. If the legislature had intended, it could have granted KCR a blanket exemption from the Open Records Act, but it did not. 5
Accordingly, we find that information "furnished by reason of this section" in KRS 214.556(6) does not extend to all KCR records, but only extends to data and compilations of data submitted by hospitals regarding individual cancer cases under KRS 214.556(2). It does not extend to correspondence between KCR and hospitals concerning whether hospitals are complying with their reporting requirements under KRS 214.556(2) . In withholding correspondence between KCR and a hospital concerning the hospital's compliance with its reporting requirements under KRS 214.556(2), UK violated the Open Records Act.
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.
Footnotes
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