Request By:
Jay Fossett
The Kentucky Post
421 Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
In your letter to the Attorney General dated May 19, 1983 you state that you are appealing the denial of access to public records pursuant to KRS 61.880. However, we are not treating your letter as a regular Open Records appeal because you asked us to answer a number of questions the answers to which depend upon circumstances of which we have no knowledge. This letter will be an official opinion of the Attorney General and will be provided both to you and to the Northern Kentucky District Health Department as advice and information. We will answer the specific questions you present in the context of the following statement from your letter.
"On May 18, 1983, I made a request to the Northern Kentucky District Health Department for a report entitled, 'The Spring 1983 Hepatitis A Outbreak. ' The report contained information about a hepatitis outbreak in January and February at the Ft. Mitchell Country Club, in which 100 people contracted the disease. Employees of the health department told me that the department's attorney, John G. Patten, Jr., had the report at his Newport office.
On May 19, 1983, I talked to Mr. Patten on the telephone and he confirmed that he had the report, but he refused to release it. Although he acknowledged that 'some of it (the report)' was public record, he said he wanted to check with Kenton Circuit Court Judge Raymond Lape to make sure that he was permitted to release the report. Judge Lape is hearing a class-action lawsuit against the country club and its involvement in the hepatitis outbreak.
This is not the first time the report has not been made available. This reporter and other reporters have asked for the report in the past and have been denied access to it."
Apparently no written request has been made to the public agency to inspect the report. When a written request is made a written response must be given within three working days. KRS 61.880(1). After a written request has been made and a written response denying the request has been received by the requester, the requester may appeal to the Attorney General and, if necessary, the Attorney General may request the public agency to send a copy of the requested document to him for consideration in writing an opinion. KRS 61.880(2).
The questions you present and our answers are as follows:
1. Is the Northern Kentucky District Health Department a "public agency, " as defined in KRS 61.870?
Answer: Yes. District health departments are created by KRS 212.810 to 212.930, the Kentucky District Health Department Act of 1972. Being created by statute, they are public agencies as defined in KRS 61.870(1).
2. Is the "Spring 1983 Hepatitis A Outbreak" report a "public record" as defined in the statute?
Answer: The report is a public record as defined in KRS 61.870(2).
3. Was the health department correct in denying inspection of the report, as set forth in KRS 61.872?
Answer: We cannot answer that question without examining the report and/or receiving a statement from the District Health Department as to why inspection of the report was denied. KRS 61.878(1) lists ten exemptions to the requirement of mandatory public disclosure of public records. If the agency claims that one or more of the exemptions apply to all or part of the report we would have to consider that claim and the reasons supporting it before we could give an answer. We will say in passing, however, that we do not believe that the fact that the report is involved in a class-action lawsuit necessarily means that it is exempt from mandatory public inspection unless the judge issues an order to that effect.
4. Should all reports and records compiled by the health department on matters concerning public health and otherwise be open for public inspection?
Answer: What we have said in answer to Question No. 3 applies here. Speaking generally, when an agency makes an official inspection of one of its licensees and objectively grades the performance or conditions existing in the premises of the licensee, the report and grade is open to public inspection. On the other hand, a report by an agency employee to his superior expressing opinions and making recommendations of policy may be exempt from mandatory public disclosure by KRS 61.878(1)(h).
If the report in question continues to be kept confidential we suggest that you make a written request, and that the health department make a written response as required by statute, and if the matter is not resolved to your satisfaction you may appeal to the attorney general.
Since we do not have the address of the Northern Kentucky District Health Department we are sending a copy of this opinion to its attorney, Hon. John G. Patten, Jr., 402 Lawyers Building, Newport, Kentucky 41071.