Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Medical Licensure ("KBML") violated the Kentucky Open Records Act in denying Andrew Wood's September 19, 2017, request for the following documentation:
1. Any DVD of the administrative hearing held for Dr. Briana L. Boyd on January 14 and 15, 2014.
2. Any transcript of the administrative hearing held for Dr. Briana L. Boyd on January 14 and 15, 2014.
In a timely written response, KBML Open Records Custodian Bertha L. Wallen advised Mr. Wood that his request was denied as to any recording of the hearing "pursuant to Order Sealing Record Case Numbers 1505 & 1505E filed of record date 01/21/14 [copy attached]." KBML also denied Mr. Wood's request for any transcript of the hearing as the hearing was not transcribed. Attached to Ms. Wallen's response was a copy of the January 21, 2014, "Order Sealing Record," in which the hearing officer generally advised that "information was revealed and discussed that is not subject to public disclosure under federal and stated [sic] law" during the presentation of evidence. For this reason, the hearing officer granted the parties' motion to seal the record of the administrative hearing; the hearing officer stated that "[n]o part of the record shall be disclosed to any person or entity not a party to the administrative hearing except as authorized or required by law." This appeal followed.
By letter dated October 5, 2017, Paralegal Andrew Wood initiated the instant appeal challenging the denial by KBML of his request. Mr. Wood first observed that the requested DVD "is clearly a public record as defined at KRS 61.870(2) and open for inspection unless all or any part is excluded from inspection by one or more of the exemptions found at KRS 61.878(1)(a) though (n)." Referencing KRS 61.880(1) and 61.880(2)(c), Mr. Wood asserted that existing legal authority "does not support the Board's denial of my request on the basis of an order sealing the record identifying no federal or state law mandating confidentiality. " Mr. Wood correctly noted that Dr. Boyd's hearing was not closed and KRS 13B.090(6) "contains no provision for nondisclosure of [the] entire recording 'unless the hearing is closed by law.'" In denying my request, Mr. Wood argued, "the Board failed to assert that the hearing was closed by law, failed to recite the authorities upon which it relied in closing the hearing and failed to explain the authorities' application to the record withheld." 1
Quoting KRS 13B.090(3), as construed in 07-ORD-064, Mr. Wood emphasized that KRS 13B.090(3) was designed to "permit a hearing officer to order inspection of otherwise exempt public records by the parties 'to the extent required by due process but place . . . those particular records in the file under seal. It is not intended to authorize wholesale nondisclosure of the entire record as to the public 'unless the hearing is closed by law.'" Additionally, Mr. Wood noted that KBML "has published certain documents related to Dr. Boyd's disciplinary process" on its website, http://www.state.ky.us/agencies/kbml/finalorders/40671.pdf. If any portion of therecording that has not been previously disclosed is actually "not subject to public disclosure under federal and state law, " Mr. Wood concluded, and KBML identifies that law and provides a brief explanation of how it applies per KRS 61.880(1), he would not object to KBML redacting that information prior to disclosing the recording. 2
Upon receiving notification of Mr. Wood's appeal from this office, General Counsel Leanne K. Diakov responded on behalf of KBML. Paraphrasing KRS 13B.090(6), Ms. Diakov advised that KBML "audio/visual records its hearings (on DVD) but does not transcribe its hearings. Therefore, Ms. Wallen's response that a written transcript does not exist was not a violation" of the Open Records Act. Relying upon prior decisions of this office, such as 07-ORD-190 and 09-ORD-034, Ms. Diakov asserted that KBML is not required to produce a nonexistent record nor is KBML required to "prove a negative" in order to refute a claim that a certain record exists.
The right to inspect records, and the corollary right to receive copies, only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205; 17-ORD-127. Accordingly, KBML is correct in asserting that a public agency cannot produce a nonexistent record for inspection or copying nor is KBML required to "prove a negative" in order to refute Mr. Wood's unsubstantiated claim that a responsive transcript was created or currently exists. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed).
However, in order to satisfy the statutorily imposed burden of justifying a denial per KRS 61.880(2)(c), a public agency must offer a written explanation for the nonexistence of the record if appropriate. See Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); Cabinet for Health and Family Services v. Todd County Standard, 488 S.W.3d 1 (Ky. App. 2016)(affirming opinion and order enforcing 11-ORD-074); 12-ORD-195. When, as in this case, a public agency has denied that a record exists and credibly explained why, further inquiry is unwarranted. 05-ORD-065, pp. 8-9; 17-ORD-087. In relevant part, KRS 13B.090(6), provides that "[a]ny person, upon request, may receive a copy of the recording or a copy of the transcript . . . if the hearing has been transcribed, at the discretion of the agency , . . . " (Emphasis added.) The record on appeal contains no evidence to refute Ms. Diakov's assertion that KBML does not generally transcribe hearings nor did it deviate from this practice to create a transcript of Dr. Boyd's January 2014 hearing. Because KBML ultimately provided a plausible explanation for the nonexistence of the transcript, in writing, the Attorney General has no basis upon which to find that KBML violated the Act in this regard absent objective proof that KBML exercised its discretion to create a transcript of the subject hearing. The remaining question is whether KBML violated the Act in denying access to a DVD recording of the January 2014 hearing. Based upon the following, this office finds that KBML improperly denied Mr. Wood's request in this regard.
On appeal KBML advised that the "final order resulting from the hearing contains the hearing officer's findings of fact and conclusions of law, summarizing details of the claims and evidence which he deemed subject to public disclosure. " Review of the "Board's final order, " Ms. Diakov observed, "discloses that [Dr. Boyd] was subject to discipline due to an impairment and conduct related to that impairment. Inherent in the presentation of such a case and her defense, would be lengthy and detailed evidence related to confidential medical/psychiatric records and information." According to Ms. Diakov, in referencing "federal and state law, " the hearing officer was relying upon "exceptions under KRS 61.810 [presumably intended to be KRS 61.878](1)(a) and (j)[unclear if KRS 61.810(j) or 61.878(1)(j)]." 3 Ms. Diakov advised that Dr. Boyd appealed the Board's Final order against her license. KBML certified the record to Jefferson Circuit Court "in two parts: portions that are unsealed and those that are sealed. ? To date, the sealed portions have not been ordered unsealed." In the agency's view, it should not be required to "go beyond the four corners of a binding Order sealing records until such time as the Order becomes modified or vacated. 4 " This office respectfully disagrees with KBML and finds the position of Mr. Wood persuasive when viewed in light of KRS 13B.080(8) and 13B.090(6).
By letter dated October 19, 2017, Mr. Wood addressed the appeal response of KBML, initially reiterating that KBML has not discharged its duty under KRS 61.880(1). With regard to Ms. Diakov's argument that medical information of Dr. Boyd is too intertwined with nonexempt information contained in the administrative record to permit separation of the material, Mr. Wood first argued that some material contained in the record must be subject to public disclosure. Next, Mr. Wood cited to multiple paragraphs found in the "Findings of Fact, Conclusions of Law, and Recommended Order," that is publicly accessible on the website of KBML, containing medical information relating to Dr. Boyd, including diagnoses, etc. Mr. Wood maintained that in publishing Dr. Boyd's diagnoses and medication list on its website, KBML undermined the credibility of its own argument regarding the need to maintain the confidentiality of such information.
Additionally, Mr. Wood noted that certain enumerated paragraphs of the Order "relate solely to the fact that [Dr. Boyd] was criminally prosecuted for operating a motor vehicle under the influence and causing a serious collision." All of the information contained in the Lexington Police Officer's testimony, and that of the other witnesses, Mr. Wood asserted, "must be considered public information. [Dr. Boyd] was convicted of various crimes and those records are subject to public scrutiny within the judicial system." Accordingly, Mr. Wood concluded, there is "zero foundation to claim" that such testimony is exempt from disclosure under the Act. Citing KRS 13B.080(8) and 13B.090(6), and noting that none of the statutory exceptions to KRS 61.810(1) apply here, 5 Mr. Wood correctly observed that the General Assembly "intended that administrative hearings that could lead to disciplinary action against a licensee of an agency" be conducted in a public and open setting. Although Mr. Wood's other points are well-taken, the relevant statutory language is determinative.
As with any decision involving application or interpretation of a statute, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). The Attorney General is not at liberty to add or subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id . In the absence of a statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4). Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co., above .
KRS Chapter 13B governs administrative hearings. Resolution of the instant appeal turns on the application of KRS 13B.080(8) and 13B.090(6), which respectively provide as follows:
An administrative hearing shall be open to the public unless specifically closed pursuant to a provision of law. If an administrative hearing is conducted by telephone, televisions, or other electronic means, and is not closed, public access shall be satisfied by giving the public an opportunity, at reasonable times, to hear or inspect the agency's record.
The agency shall cause all testimony, motions, and objections in a hearing to be accurately and completely recorded. Any person, upon request, may receive a copy of the recording or a copy of the transcript, if the hearing has been transcribed, at the discretion of the agency, unless the hearing is closed by law . . .. The form of all requests and fees charged shall be consistent with KRS 61.870 to 61.884 [the Open Records Act] .
(Emphasis added.) Significantly, the record on appeal contains no evidence or indication that Dr. Boyd's January 2014 hearing was closed. "Any person, upon request, may receive a copy of the recording . . . unless the hearing is closed by law" pursuant to 13B.090(6). This language is controlling here notwithstanding the "Order Sealing Record" upon which KBML relied exclusively to justify its denial of Mr. Wood's request in its entirety. Compare 05-ORD-066 (reaffirming line of decisions holding generally that the Open Records Act does not supersede an order of confidentiality entered by a court of competent jurisdiction).
In 07-ORD-064, this office held that "a confidentiality clause in a 'Final Order/ Agreed Order of Dismissal' entered during an administrative proceeding, as opposed to a Court Order of Confidentiality, does not supersede the Open Records Act, under which settlements are open for inspection, notwithstanding any confidentiality clauses; holding otherwise would contravene KRS 13B.090(3)." 6 07-ORD-064, p. 2. Although 07-ORD-064 involved a request for "a copy of 'any legal settlement or terms of resolution reached between the [school board] and [the licensee,]'" the fundamental premise of that decision was that a final order entered during an administrative proceeding that places the record under seal - as compared to an order from a court of competent jurisdiction sealing the record - does not supersede the Open Records Act. This principle is equally applicable on the facts presented.
KBML has not alleged that the Jefferson Circuit Court has issued an Order sealing the record; instead, KBML relies exclusively on the fact that the Circuit Court has not un sealed the record to date. Based on this logic, no person would be permitted to receive a copy of the recording of the 2014 hearing per KRS 13B.090(6) indefinitely; delaying public access to such an extent is contrary to the legislative intent expressed in KRS 13B.080(8) for administrative hearings to not only be open to the public unless "closed pursuant to a provision of law," but also inconsistent with its mandate to afford "the public an opportunity, at reasonable times, to hear or inspect the agency's record" on those occasions when the administrative hearing is conducted electronically. Mr. Wood is entitled to receive a copy of the DVD recording of Dr. Boyd's January 2014 public hearing under KRS 13B.080(8) and 13B.090(6) even assuming the Board's Order controls the accessibility of the records that were sealed.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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