Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Medical Licensure ("KBML," "the Board") violated the Open Records Act in its disposition of Dr. David Sangster's request regarding an administrative hearing in which he was a party. For the reasons that follow, we find no violation of the Act.
Dr. Sangster's letter to KBML's records custodian, dated September 26, 2018, takes issue with a finding made by hearing officer Thomas Hellmann regarding the applicable standard of care, stating in relevant part as follows:
I have reviewed the recordings of Dr. [Richard] Park[s'] testimony and the court reporter transcripts [apparently prepared at the instance of Dr. Sangster]. The evidentiary basis for Mr. Hellman[n]'s findings regarding the standards of medical care is not contained in my copy of the hearing record. Since the law of my case precludes me from hiring court reporters to transcribe those portions of the record the [ sic ] support Mr. Hellman's [ sic ], I am making an Open Records Request for the KBML to either 1) identify those portions of the record that support the findings that Dr. Parks' training rather than medical and scientific literature determine the standard of care; or 2) ask Mr. Hellman[n] to specifically identify those portions of the record that he relied upon . Then once the relevant portions of the record have been identified, I request an accurate time stamped transcript restricted to those portions of the record that are actually relevant.
. . . . I am only seeking those portions of Dr. Park[s'] testimony in which he testifies that the medical and scientific literature do not establish standards of medical care and that it is his "education, training, and experience" that determines the standard of care. I am also requesting copies of the recordings during which Dr. Park[s] made these statements.
(Emphasis added.)
On September 28, 2017, KBML provided Dr. Sangster an indexed copy of the recording made at his evidentiary hearing, accompanied by a written response stating in pertinent part:
Pursuant to your Open Records Request, please find enclosed a complete recording of the emergency hearing held on October 1 and 3, 2008 and at [ sic ] the administrative hearing on the complaint held on November 5-6, 9-10, 18 and 30; December 1-4 and 9, 2009; and February 10-12 and 16, 2010. (Enclosed DVD # s 1-15). This record includes, but not [ sic ] is not limited to, testimony provided by yourself (Dr. Sangster) and Dr. Richard Parks. This is the only format in which the board creates and maintains the record; a written transcript of the proceedings does not exist. Thus, it cannot produce a copy of -- or make available for inspection -- a written transcript which does not exist. This is not a denial of your Open Records Request because, if a written transcript did exist, it would be provided for your inspection. . .. The record, as it exists, is provided to you herewith for your inspection and analysis of the information contained therein.
In his appeal dated December 22, 2017, Dr. Sangster alleges that the hearing discs "do not contain the requested testimony"; the balance of his appeal letter is not concerned with the Open Records Act, but amounts to an argument that one of KBML's administrative findings was not supported by the hearing testimony.
In a response to this appeal dated January 5, 2018, KBML General Counsel Leanne K. Diakov points out that Dr. Sangster's case before the Board has been affirmed on appeal, up to and including denial of discretionary review by the Supreme Court of Kentucky. She further argues:
The Board complied with [the] Open Records Act by producing the audio and visual recording of all testimony, including that of Dr. Richard Parks, during the entire administrative hearing because that is the record which contains information responsive to Dr. Sangster's request. To the extent that Dr. Sangster requested that the custodian -- and the hearing officer -- identify "relevant" portions of the record to support the hearing officer's findings, his request goes beyond the scope of an open records request because the determination of the "relevancy" of any information contained therein goes beyond the scope of records production. The custodian fulfilled her duties by producing all testimonial records which may contain information responsive to the open records request and Dr. Sangster may review and weigh the relevancy of the information contained therein.
We agree that KBML has discharged its obligations under the Open Records Act by providing a complete copy of all testimony, including that of Dr. Parks, in "the only format in which it is created and maintained by the Board (i.e. audio/ visual recording) ."
To the extent that Dr. Sangster requested KBML or its hearing officer to "identify those portions of the record that support the findings" in question, he was essentially requesting information in the form of a legal opinion. Requests for information are outside the scope of open records law, and an agency is not obligated to honor a request for information under the Act. 02-ORD-88. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. In 95-ORD-131, the Attorney General observed:
[R]equests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request." [ Id. ]
(Emphasis in original.) Furthermore, a public agency is not required to compile a list or to create a record in response to an open records request. ( See 12-ORD-026 and authorities cited therein.) Thus, Dr. Sangster was not entitled under the Act to have a nonexistent transcript created for him in response to his request. 1
Accordingly, we find no violation of the Open Records Act. Insofar as Dr. Sangster attempts to use the open records process to make a collateral attack on KBML's administrative process and the subsequent judicial review, this office is without jurisdiction to entertain such an action under KRS 61.880. 2
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The KBML points out that it obtained a written estimate from a court reporter for preparing an official transcript pursuant to KRS 13B.090(6), but Dr. Sangster "chose not to have an official transcription performed."
2 Neither does our remit under KRS 61.880 include prosecution of lawyers for alleged "felonies," nor referring lawyers to the Kentucky Bar Association for disciplinary action, as requested by Dr. Sangster.