Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Ruben R. Salinas appeals the University of Kentucky's handling of his June 5, 2015, request for copies of:
records; bulletins; etc., that warned or alerted the staff, or patients/ clients, of infection or potential infection of bloodborne pathogens such as Hepatitis B or C, [and] HIV, from 1990 thru 2004 occurring in this department.
Mr. Salinas addressed his request to the "UK College of Dentistry, Rm. D-104, 800 Rose St., Lexington KY 40536."
On June 19, 2015, University of Kentucky College of Dentistry Records Coordinator Sheila Wilson notified Mr. Salinas that the College of Dentistry "located the requested information from August 2004" and provided him with copies of two redacted records. 1 The first record was uncaptioned but contained redacted patient data, redacted emergency contact information, partially redacted information identifying the financially responsible party, an unredacted consent to treatment, and an unredacted release of information and payment authorization. The second record, also partially redacted, was captioned "Authorization for Special Procedures." It contained a numerical list of items for which consent must be obtained and a "risks involved in performance" section from which all information was redacted. On June 29, 2015, Mr. Salinas submitted this appeal to the Office of the Attorney General.
In correspondence directed to this office after he initiated his appeal, the University disputed Mr. Salinas' claim that it violated the Open Records Act. The University cited "two reasons." First, the University maintained that its Official Custodian of Records "never received the request" and that "[s]ending a request to an employee is insufficient to make a request of the University." 2 Noting that "the statute explicitly refers to an Official Custodian of Records," the University stated that it "insists that all Open Records Request[s] be delivered to the Official Custodian of Records." Second, the University argued that, although it never received his request, it "did provide the requested records as part of Mr. Salinas' request for medical records." Referencing the "two forms that were given to patients in 1996 providing consent and notifying patients that they were giving the department authorizing [sic] to treat for additional procedures such as HIV testing, " the University defended its actions.
The University of Kentucky violated KRS 61.880(1) by failing to respond to Mr. Salinas' open records request in writing and within three business days. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
On those occasions when the recipient of an open records request is not the official custodian of the agency's records, KRS 61.872(4) provides direction:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
See, e.g., 15-ORD-138 (city violated KRS 61.880(1) and KRS 61.872(4) in the handling of an open records request.) In its response to Mr. Salinas' letter of appeal, the University states that it "insists that all Open Records Request[s] be delivered to the Official Custodian of Records." The University does not describe how, and to whom, it communicates this requirement. Specifically, we are not advised what direction the University provides staff and faculty who are the unintended recipient of a records request. If Ms. Wilson received training on the proper disposition of misdirected records requests, she erred in failing to promptly furnish Mr. Salinas with the name and location of the official custodian of records or, alternatively, in failing to immediately forward his request to the University's official custodian of records.
Contrary to the University's position, it did not fulfill its statutory obligation when Ms. Wilson responded to the request by producing "two forms that were given to patients in 1996 providing consent and notifying patients that they were giving the department authorizing [sic] to treat for additional procedures such as HIV testing. " 3 Mr. Salinas' request extended well beyond standard consent and release forms to "records [and] bulletins, etc., that warned or alerted, the staff, or patients/ clients, of infection or potential infection of blood borne pathogens such as Hepatitis B or C [and or] HIV, from 1990 thru 2004 occurring in this department." It expressly includes "records [and] bulletins, etc.," that alerted staff and patients of the risk of Hepatitis B or C or HIV infection from bloodborne pathogens. The forms provided by the University in response to the request do not contemplate the actual request, which is for much broader categories of documents, documents that we presume in the management of a hospital would exist. 4
Consequently, we cannot agree that the University "provide[d] the requested records as part of [Ms. Wilson's] response to Mr. Salinas' request for medical records." Accordingly, it has not fulfilled its statutory duty under KRS 61.880(1) and should undertake a broader search for "records [and] bulletins, etc., that warned or alerted the staff, or patients/ clients, of infection or potential infection of bloodborne pathogens such as Hepatitis B or C [and] HIV from 1990 thru 2004" 5
Either party may appeal this decision 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.
Footnotes
Footnotes
1 The consent and release forms attached to the University's response to Mr. Salinas' request are heavily redacted. It is unclear whether the copies that were mailed to Mr. Salinas were his own, and therefore unredacted, or those of another patient, and therefore heavily redacted. Redaction without "a statement of the specific exception authorizing the withholding of the record [or part of the record] and a brief explanation of how the exception applies to the record withheld" is impermissible under KRS 61.880(1).
2 Mr. Salinas submitted his request on the Commonwealth of Kentucky's "Request to Inspect Public Records Re KRS Ch. 61."
3 There is a discrepancy between the dates of the documents Ms. Wilson provided, namely 2004, and the dates of the documents the University maintains she provided, namely 1996.
4 For example, see 803 KAR 2:320 Section 6, which adopts the federal toxic and hazardous waste standards found at, inter alia , 29 CFR 1910.1030, relating to bloodborne pathogens. Specifically 29 CFR 1910.1030(g)(2)(i) requires employers to provide annual training to employees with occupational exposures. The federal regulation establishes the minimum elements for the training program including "an explanation of the modes of transmission of bloodborne pathogens," "an explanation of the employer's exposure control plan," "an explanation of the appropriate methods for recognizing tasks and other activities that may involve exposure to blood and other potentially infectious materials," and "an explanation of the use and limitations of methods that will prevent or reduce exposure..." Pursuant to 29 CFR 1910.1030(h)(1)(iv), the employer must maintain "a copy of the information provided to the healthcare professional," 29 CFR 1910.1030(h)(1)(ii)(E), "for at least the duration of employment plus 30 years...." 29 CFR 1910.1030(h)(1)(iv)<<4>; see also, General Schedule for State Agencies Records Series P0029 (Bloodborne Pathogens File) establishing a 30 year retention after the cessation of employment and includes "information provided to the healthcare professional."
5 The bloodborne pathogen standard was promulgated in December 1991 (56 FR 64004) and has been amended as recently as April 2012 (77 FR 19934).