Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Saint Joseph Health System, Inc., d/b/a Saint Joseph Berea, violated the Open Records Act in the disposition of William Epling's May 2, 2016, request for a copy of a blood alcohol test performed on an individual transported by the Berea Police Department. For the reasons that follow, we cannot conclude that a violation of the Act occurred.
Mr. Epling's May 2 letter to Saint Joseph Berea indicated that he was requesting "specific and succinct public information," and added:
I believe this information to be in the public domain because I have public documentation that Berea Police initiated its generation concerning a citizen. . . .
The specific and succinct information was generated on 4/21/2016 between 8:00 PM and 9:00 PM according to Berea Police documents, incident # 201600005307, when Berea Police Dept. unit # 414 delivered a 60 year old female for medical clearance prior to transport to Eastern State Hospital under KRS 202A.041 when 5 vials of blood were drawn, presumably at public expense.
Owing to the incident's alcohol involved traffic stop, it is assumed that a blood-to-alcohol ratio was computed especially since officers were concerned that the subject "had not ingested a dangerous level of alcohol. "
The specific and succinct information requested is the blood-to-alcohol ratio rounded to two decimal places.
Having apparently received no response to his request, Mr. Epling initiated an appeal on May 9, 2016.
On May 31, 2016, KentuckyOne Health Corporate Counsel Jacqueline C. Kingsolver responded to the appeal on behalf of Saint Joseph Health System, Inc., describing Saint Joseph Berea as "a non-profit, tax-exempt critical access hospital" whose "sole corporate member is KentuckyOne Health, Inc." She indicates that "neither Saint Joseph nor KentuckyOne Health, Inc. is an agency of the state for the purpose of compliance with the Open Records laws." Ms. Kingsolver has provided a copy of the Articles of Incorporation of Saint Joseph Health System, Inc., and the Renewal Certificate of Assumed Name for Saint Joseph Berea. She further argues that Saint Joseph Berea is not authorized to release the requested information to Mr. Epling under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and other federal law.
As amended in the 2012 legislative session, 1 KRS 61.870(1) defines "public agency" as including:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
There is no basis in the record upon which to conclude that Saint Joseph Health System, Inc., is a public agency within this definition, and indeed, Mr. Epling does not explicitly allege that it is a public agency. Rather, he alleges that the records he seeks from Saint Joseph Berea should be considered public records because they were "initiated" by the Berea Police Department.
As defined in KRS 61.870(2), "public record" includes "books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " If the records sought by Mr. Epling were created for the use of the Berea Police Department, it is entirely possible that they are public records. The Open Records Act, however, can only require that they be provided by a "public agency" as defined in KRS 61.870(1). Therefore, Mr. Epling must seek the records from the Berea Police Department, not from Saint Joseph Berea. We conclude, based on the record, that Saint Joseph Health System, Inc., is not a public agency under KRS 61.870(1) and accordingly is not required to comply with the provisions of the Open Records Act. 96-ORD-197.
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
Footnotes
1 A newly amended version of KRS 61.870 will take effect on July 15, 2016. OAG 16-002.