Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Art Anderson initiated this appeal challenging the denial by Woodford County Emergency Medical Services (EMS) of his July 27, 2015, request for "all reports, records and names of personnel who transported Mary Ellen Reynolds (Anderson) from 771 Mundys Landing Road, Versailles, KY, to Saint Joseph Hospital, Lexington, KY, on the 18th day of May, 2015, against her will and over my objections, only to be released after being examined in the ER." 1 By letter directed to Mr. Anderson on August 3, 2015, Director Hunter Shewmaker confirmed receipt of his request but advised that "medical records are not open records. In order for you to obtain all medical records for Mary Ellen Reynolds Anderson you will need to" either have Mrs. Anderson come by the EMS office with a picture I.D. or provide a signed letter from her authorizing you to obtain the medical records.
On August 12, 2015, this office issued a Notification to Agency of Receipt of Open Records Appeal to Mr. Shewmaker and the Woodford County Attorney, indicating that any response on behalf of the agency "must be received no later than Tuesday, August 18, 2015." Neither copy was returned as being undeliverable. As of the present date, this office has not received any response to Mr. Anderson's appeal on behalf of Woodford County EMS nor did anyone request additional time in which to issue a response. Based upon the following, this office finds the agency's initial response procedurally deficient under KRS 61.880(1), but affirms the denial by Woodford County EMS on the basis of KRS 311A.190(5), incorporated into the Open Records Act per KRS 61.878(1)(l).
As a public agency, Woodford County EMS is obligated to comply with the procedural and substantive provisions of the Open Records Act, regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 2 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." A "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 ." (Emphasis added). When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208.
In sum, the agency was required to cite the applicable statutory exception and provide a brief explanation of how that exception applied to the records, or portions thereof withheld per KRS 61.880(1), in order to satisfy its burden of proof under KRS 61.880(2)(c). 04-ORD-106, p. 6; 01-ORD-232; 10-ORD-147. As the Attorney General has consistently recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. In other words:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
In responding to Mr. Anderson's request, Woodford County EMS neglected to cite a specific exception to justify the denial and failed to explain how the exception upon which it was implicitly relying applied to any responsive public records. Bearing in mind that public agencies have the burden of proof under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office concludes that Woodford County EMS violated the Act in failing to comply with the mandatory terms of KRS 61.880(1). Edmondson v. Alig at 858. That being said, this office is compelled to undertake a substantive analysis of the issue presented rather than compound this violation by advising the agency to release any documents that are statutorily protected from disclosure.
In Edmondson , the Court recognized that despite undeniable deficiencies in the agency's response, the circuit court had improperly ordered release of the records, "presumably as the only sanction available . . . ." Edmondson at 859. Noting the "crucial issue -- that of the exempt status of the material sought to be disclosed -- has been overlooked entirely[,]" the Court held that "it is incumbent upon the circuit court to examine this material and to make a determination as to whether it is substantively exempt from disclosure" lest the agency's error be compounded by disclosure of records intended to be protected from public scrutiny. Id. As in 00-ORD-148, this office finds that although the Court did not extend the holding of Edmondson to the Office of the Attorney General, "which acts in a quasi-adjudicative role in resolving open records disputes pursuant to KRS 61.880(2), and this office rarely assays to invade the circuit courts' prerogative, the appeal before us has far-reaching policy implications . . . which compel us to undertake a substantive analysis of the disputed records." Id., p. 4. The agency's initial "error cannot be remedied by committing another [namely, requiring disclosure of statutorily protected information] and thus compounding mistakes at the possible expense of due process." Id. ; 07-ORD-258; 08-ORD-143; 12-ORD-039.
In 12-ORD-039 (In re: Art Anderson/McCreary County Ambulance Service), this office was asked to determine whether the agency had violated the Open Records Act in denying Mr. Anderson's request "for 'all dispatch runs regarding Linda Sue Selvidge . . . between January 1, 2005, and December 31, 2011, including the date and time of dispatch, if she was or was not transported, and billing records presented to Medicare or Medicare [sic]." Having concluded that the Ambulance Service violated KRS 61.880(1) in failing to issue a timely written response, prompting Mr. Anderson to file his appeal, this office then found that its belated response advising that "[i]f Mr. Anderson is requesting medical records, these are confidential and not subject to disclosure as required by KRS 61.878," was also deficient in failing to cite a statutory exception and explain how it applied.
The following analysis from 12-ORD-039 applies with equal force on the facts presented here:
While it is true that "few records are accorded greater protection than patient medical records," 03-ORD-023, p. 6, ambulance service dispatch records do not fall neatly within this protected records class. They do, however, fall neatly within the class of records to which the General Assembly has extended statutory protection at KRS 311A.190(5). That statute provides:
Mr. Anderson does not identify himself as Linda Sue Selvidge's parent or legal guardian or indicate that he has "proper power of attorney." Accordingly, he cannot obtain the requested records insofar as they are expressly excluded from public inspection by KRS 311A.190(5), incorporated into the Open Records Act by KRS 61.878(1)(l). 3
. . . As a public agency governed by the Open Records Act, the Ambulance Service "must disclose health information [including billing information] under the 'required by law' exception to HIPAA [Health Insurance Portability and Accountability Act of 1996], to the extent that disclosure is required by the Kentucky Open Records Act. " 10-ORD-161, p. 4. In the present context, KRS 61.878(1)(a) is the controlling law in the resolution of the issue of access to Ms. Selvidge's billing information for ambulance service, and that exception to the Open Records Act authorizes nondisclosure of the billing information as a clearly unwarranted invasion of personal privacy. 4
12-ORD-039, pp. 3-4 (original emphasis).
Based upon the foregoing, this office held that the agency was "authorized to withhold the records to which Mr. Anderson requested access, but not for the reasons stated." 12-ORD-039, p. 4. Here, as in that case, this office is "fully cognizant of the fact that the [agency] is assigned the burden of proof in sustaining its denial of Mr. Anderson's request and that it failed to do so." Id., pp. 4-5. This office again finds that on those occasions when a "specific statute mandating confidentiality of the records in dispute has not been invoked, we will not 'compound [the agency's] mistake' by declaring its denial improper and, consequently, requiring disclosure of records made confidential by state and federal law." 12-ORD-039, p. 5, quoting Edmondson v. Alig at 859; 05-ORD-005. Woodford County EMS is prohibited from disclosing the records in dispute unless a properly executed written release is provided. See 08-ORD-084.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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 To the extent Mr. Anderson requested names, i.e. , information, rather than public records, Woodford County EMS did not have a statutory obligation to comply but was, in the alternative, required to make any existing records containing the information available. See 11-ORD-007, pp. 2-3. Because any existing responsive public records were apparently exempt from disclosure, further discussion is unnecessary.
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2 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994).
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3 KRS 61.878(1)(l) authorizes public agencies to withhold, "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
4 KRS 61.878(1)(a) authorizes public agencies to withhold, "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
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