Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the University of Kentucky's response to Amita Rastogi's September 20, 1997, request to inspect all original files pertaining to her, and eight 1 categories of records which appear to be missing from the files already inspected. On September 29, the University's official custodian of records, George J. DeBin, notified Dr. Rastogi that the files she requested were available for inspection.
In a follow-up letter to Dr. Rastogi dated October 1, 1997, Mr. DeBin indicated that his office had "queried multiple University offices to obtain all original records" relating to Dr. Rastogi. Mr. DeBin identified the offices queried and noted their responses. In addition, he identified four types of records which the University would not permit her to inspect. These records consisted of:
1) Records in which you and other individuals are referenced. These records have been redacted to eliminate references to others since this would be a clearly unwarranted invasion of personal privacy to release these records, KRS 61.878(1)(a). You have previously been provided copies of these redacted letters, the total page count of which is three.
2) Investigative records maintained by the University's Affirmative Action Office and assembled as a part of its investigation into your recently filed complaint with the Equal Employment Opportunity Commission, KRS 61.878(3).
3) University attorney-client communications which are privileged communications, KRS 61.878(1)(l).
4) Veterans Affairs Medical Center, Lexington, Kentucky Quality Assurance Materials, KRS 61.878(1)(k). These materials are denoted as confidential pursuant to 38 USC § 5705. You should contact the VAMC directly concerning access to these records.
In closing, Mr. DeBin stated that "if records exists concerning items 1, 2, 3, 4, 5, 7, and 9, all originals of these are available for your inspection. " VA Medical Center records responsive to request 6 were provided in the records with the exception of quality assurance materials. "All available records" relating to request 8 were also furnished, though the University issued a disclaimer in releasing them.
On October 3, 1997, Dr. Rastogi inspected her records. She again questioned the University about her inability to locate the eight categories of records identified in her September 20 request. Mr. DeBin responded to her inquiries on October 7, advising her that "there are no additional records to provide to you." With specific reference to an empty evaluations file provided by Barb Petit, Mr. DeBin explained that the file itself was set up as a routine practice, and "if no evaluations were in the file, that is because there were none, or, if such a record exists, it was in another section of the folder." Mr. DeBin denied the existence of minutes of a January 5, 1996, meeting between Dean Emery Wilson and Dr. Byron Young, asserting that no minutes were kept since the meeting was not subject to the Open Meetings Act. He reiterated that there are no records relating to Dr. Rastogi that have not been made available to her.
The question presented in this appeal is whether the University of Kentucky violated the Open Records Act in responding to Dr. Rastogi's September 20 request. First, we are asked to determine if the University fulfilled its statutory obligation in responding to her numbered requests for categories of records. Second, we are asked to determine if the University properly denied her access to records in which she and other individuals were referenced, investigative records pertaining to her affirmative action complaint, University attorney-client communications, and Veterans Affairs Medical Center quality assurance materials. With respect to the first question, we find that the University's response was improper to the extent that it did not unequivocally advise Dr. Rastogi whether specific records to which she had requested access exist, but proper to the extent that it generally denied the existence of records which were only generally described. With respect to the second question, we find that the University improperly denied her access to records in which she and other individuals were referenced, investigative records relative to her affirmative action complaint, and attorney-client communications, but properly denied her access to VA quality assurance materials.
I. Adequacy of the University's responses to Dr. Rastogi's requests.
In previous decisions, this office has addressed the question of how specific a public agency must be in denying the existence of records requested under the Open Records Act. In OAG 91-101, this office held that a public agency's response is insufficient under KRS 61.880(1) if it fails to advise the requesting party whether the requested record exists. Citing OAG 86-38, at page 3, we construed the obligation of the agency relative to a request to inspect documents, noting:
KRS 61.880(1) requires that you advise the requesting party as to the existence of the documents requested. If the documents exist and inspection is denied, you should list each document which the city will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
In other words, "If a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. In OAG 91-101, the record requested from the University of Kentucky was specifically identified as "minutes of a meeting of tenured faculty members conducted by Dr. Fred Knapp in November, 1986." The agency's response neither admitted nor denied the existence of the minutes. We concluded that unless the agency was unable to determine whether the minutes exist, by virtue of the request's failure to identify with reasonable particularity the meeting at which the minutes were taken, it must advise him whether they exist.
In 96-ORD-101, we were asked to determine if a request for "such records as will provide the basis for . . . [the] statement, as referenced in the . . . Courier-Journal article dated February 23, 1996, that city officials estimate the cost of responding to open records requests filed by me and my family at $ 316,250 over the past five years" was sufficiently specific to require an unequivocal response. Noting that the requester had not requested a specific record, but had instead made an "open-ended any-and-all-records-that relate-type of request," we held that the city's general denial was appropriate. We observed:
Because [the requester] did not identify a specific record or records which he wished to inspect, or describe such records with reasonable particularity, the city could not advise him whether they exist. To paraphrase an earlier open records decision, [the requester's] request was so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass.
96-ORD-101, p. 3, citing OAG 91-58, p. 4. "To require an unequivocal denial of a nonspecific request for records," we concluded, "is to impose a burden on the public agency which no custodian of records, or individual acting under his authority, can practically discharge." 96-ORD-101, p. 3.
In reviewing Dr. Rastogi's September 20 request, we find that four of her eight requests were sufficiently specific to warrant an unequivocal response from the University. We analyze each request below:
1) Dr. Byron Young wrote to Dr. Salley on June 8th 1994, in response to a communication from Dr. Salley with regard to my appointment. Please provide me with the original correspondence from Dr. Salley that precedes this letter, and all other prior communications in reference to me.
This request is, in our view, sufficiently specific to warrant an unequivocal response. Dr. Rastogi requested the letter prepared by Dr. Salley prior to June 8, 1994, regarding Dr. Rastogi's appointment, and addressed to Dr. Byron Young, and any other written communications between these parties relating to her. Consistent with the principle that a public agency must "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested" set forth in 95-ORD-96, we find that the University should have questioned Dr. Salley and Dr. Young about the existence of the letter, and any other correspondence between them relating to Dr. Rastogi. If Dr. Salley and Dr. Young denied the existence of any such record or records, the University could have then advised Dr. Rastogi that "no records exist which satisfy this request."
2) On January 23rd 1996, Dr. Young wrote to Dr. Emery Wilson regarding my appointment at the UK in apparent follow up to prior discussions. Please provide me with all preceding and subsequent correspondence between Dr. Young and Dr. Emery Wilson regarding my position at the University.
This is a specific request for correspondence between Dr. Young and Dr. Emery Wilson regarding Dr. Rastogi's position at the University generated before and after Dr. Young's January 23, 1996 letter to Dr. Wilson. Again, the University should have questioned Dr. Young and Dr. Wilson to determine if they exchanged other correspondence relative to Dr. Rastogi. Based on their responses, the University should have issued an unequivocal response.
3) Ms. Barbara Petit prepared a detailed log (dated January 1996) of her account of the reasons for her actions in 1995, in relation to my position at the UK. Please provide me with all correspondence that prompted the compilation of this record.
This request is similar to the "open-ended any-and-all-records-that-relate-type of request" which this office dealt with in 96-ORD-101, and which we deemed "so nonspecific as to preclude the custodian from determining what . . . records it encompasses." Accordingly, we find that the University properly issued a general denial that there were no additional records to provide to her.
4) On March 5th 1996, Dr. Glenn wrote to Dr. Thomas Schwarcz regarding my appointment stating that "It has been determined that we will not act on Dr. Rastogi's request for clinical privileges in the University of Kentucky Hospital at this time". Please provide me with the documentation on how this determination was made.
Like request number 3, discussed above, this request does not identify particular records. Therefore, the University cannot provide an unequivocal response, and its general denial is adequate.
5) On May 10th, 1996 Dr. James Glenn wrote to Dr. Robert Salley, and other faculty in the Division of Cardiothoracic Surgery stating "I need from each of you a brief letter indicating that you do not feel that Dr. Rastogi should be reappointed to our faculty." Further, on May 21, 1996, Dr. Glenn wrote to Dr. Emery Wilson "However, we recommend that this be a terminal reappointment and that Dr. Rastogi be so advised.["] Please provide me with all documentation that preceded this decision and that was used to justify this determination.
This request describes particular documents, namely the letters prepared by Dr. Robert Salley and other faculty members of the Division of Cardiothoracic Surgery in response to Dr. James Glenn's May 10, 1996, request for brief letters indicating the faculty members' belief that Dr. Rastogi should not be reappointed. An unequivocal response stating whether these letters exist, based on the faculty members' answers to the question, "Did you prepare a letter for Dr. Glenn on or after May 10, 1996, in which you stated that you did not feel Dr. Rastogi should be reappointed," is therefore required.
6) Please also provide me with all documentation that UK has in its possession regarding me from the affiliated VA medical Center.
Although it implicates a potentially large number of documents, we believe that this request is sufficiently specific to warrant an unequivocal response. In its October 1, 1997, letter to Dr. Rastogi, the University stated that all VA Medical Center records had been released to her with the exception of VA quality assurance materials. The University denied her access to these materials on the basis of KRS 61.878(1)(k) and 38 USC § 5705. This response to her specific request was, in our view, sufficiently unequivocal to satisfy the requirements of the Open Records Act.
7) On September 14th 1995, and January 8th 1996 the VAMC responded by e-mail to inquiries from Dr. Young's office about me. Please provide me with the original questions sent to the VA.
Again, this request specifically describes particular documents, namely, the original questions sent to the VA from Dr. Young's office, which relate to Dr. Rastogi and which prompted the VA's September 14, 1995, and January 8, 1996 e-mail responses. The University could establish beyond any doubt that records exist or do not exist which satisfy this request by asking Dr. Young whether he submitted written questions to the VA, or asking the VA officials who responded whether they received written questions. The University's general denial was therefore inadequate.
8) On October 30th 1996, Ms. Virginia Scott made a recorded statement in court, that Mr. Tony Goetz, Administrator, University of Kentucky, had provided her with documentation stating that I was not in good standing at the UK, and that I had suffered a reversal of privileges. This information was not apparent on review of documents provided by UK through the open records appeal. Please supply all information in possession of UK that formed the basis of this statement.
Like requests 3, 4, and 5 above, this request is too open-ended and nonspecific to require a unequivocal response. Dr. Rastogi does not ask for a particular document or documents generated on or about a given date by a specific individual or individuals, but all documentation which formed the basis of Ms. Scott's recorded statement. The University's general response was adequate.
The University should be guided by these observations in conducting its search for records identified in, and formulating a new response to, requests 1, 2, 6, and 7. Anything less than this constitutes a violation of KRS 61.880(1) which "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). It may well be that these inquiries will yield no additional records. Nevertheless, we believe that the public agency does not discharge its duty under the Open Records Act when it issues a "limited and perfunctory response" to a request for specifically described records. Id.
II. Propriety of University's partial denial of Dr. Rastogi's request.
We now turn to the four categories of records to which the University denied Dr. Rastogi access in whole or in part, namely records in which she and other individuals are referenced, investigative records maintained by the University's Affirmative Action Office assembled as a part of its investigation into the complaint she filed with the Equal Employment Opportunity Commission, University attorney-client communications, and VA Medical Center Kentucky quality assurance materials. We analyze each category of records and the propriety of the University's invocation of the cited exemptions. Again, we note that as a rule of general application, KRS 61.880(1) requires the University to provide particular and detailed information in response to a request for documents.
Records in which Dr. Rastogi and other individuals are referenced.
The University relies on KRS 61.878(1)(a) in partially denying Dr. Rastogi access to records in which she and other individuals are referenced. The University maintains that these records were "redacted to eliminate references to others since this would be a clearly unwarranted invasion of personal privacy . . ." Based on this office's decision in 97-ORD-87, a copy of which is enclosed and incorporated by reference, we find that the University's reliance on the cited exemption was misplaced.
In 97-ORD-87, the Attorney General was presented with the question whether Morehead State University properly denied a former University employee's request for various records relating to him. Focusing on the right of access granted to public employees, including university employees, by KRS 61.878(3), we held that "When applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exceptions of KRS 61.878(1)(k) . . . and KRS 61.878(1)(l)." 97-ORD-87, p. 4. This includes the exemption codified at KRS 61.878(1)(a). In other words, pursuant to KRS 61.878(3), Dr. Rastogi is entitled to inspect unredacted copies of the records in which she and other individuals are referenced. This rule applies regardless of whether Dr. Rastogi is a current or former employee of the University of Kentucky. See discussion at page 4 and 5 of 97-ORD-87 (holding that "former public employees, whether they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment, are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment" ). The University should immediately make arrangements for Dr. Rastogi to inspect unredacted copies of the records in which she and other individuals are referenced.
Investigative records maintained by the University's Affirmative Action Office
The University next denies Dr. Rastogi access to investigative records maintained by its Affirmative Action Office and assembled as a part of its investigation into her recently filed complaint with the Equal Employment Opportunity Commission. The University relies on the final sentence of KRS 61.878(3) which states that despite the broader right of access granted public agency employees under this provision, such employees "shall not have the right to inspect or to copy . . . any documents relating to ongoing criminal or administrative investigations by the agency."
In 95-ORD-97, a copy of which is attached and incorporated by reference, this office analyzed the propriety of a public agency's denial of an employee's request for a letter in which she was discussed. The agency argued that the letter was exempt from disclosure because of ongoing administrative and judicial appeals. Invoking KRS 61.878(3), the requester countered that the only administrative actions currently pending were actions which she initiated. The Attorney General held that the final sentence of KRS 61.878(3) notwithstanding, that provision compelled disclosure of the letter. At page 4 and 5 of 95-ORD-97, we observed:
This office has recognized that a public agency employee is entitled to review records relating to administrative actions which he or she initiated. Thus, in 93-ORD-19, we held that a public agency employee could inspect handwritten notes generated by the agency's affirmative action officer in the course of investigating a formal complaint filed by the employee, even though those notes were otherwise exempt per KRS 61.878(1)(i). We affirmed that decision in 93-ORD-24, holding that the agency improperly withheld handwritten notes prepared by an agency officer during an investigation of a complaint initiated by the requester to whom the notes related. We believe 93-ORD-19 and 93-ORD-24 are dispositive of this appeal.
. . .
KRS 61.878(3) limits public employee access to records relating to the employee only if the investigation is initiated " by an agency." (Emphasis added.) Again, if it were the legislature's intent that the prohibition extend to investigations initiated "against" an agency, it could have so provided by inclusion of the words "by or against." We attach significance to the legislature's particular word choice, and conclude that the limiting language of KRS 61.878(3) prohibits public employee access to their own records only when the criminal or administrative investigation (as opposed to adjudication) is undertaken by (as opposed to against) the agency.
Based on these decision, we find that the University improperly denied Dr. Rastogi access to investigative records assembled by the Affirmative Action Office relative to her complaint.
University attorney-client communications
The University also denies Dr. Rastogi access to "University attorney-client communications which are privileged communications, KRS 61.878(1)(l)." Because the University fails to meet its statutory burden of proof relative to invocation of the privilege, we cannot affirm its denial of this portion of the request. In support, we rely on KRS 61.880(2)(c), the Kentucky court of Appeals decision in Edmondson v. Alig , above, and this office's decision in 97-ORD-133, a copy of which is attached and incorporated by reference.
In 97-ORD-133, the Attorney General quoted extensively from an earlier decision in which the office analyzed the attorney-client privilege. At page 9, footnote 3, we observed:
KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 503 to exclude form public inspection otherwise public records protected by the attorney-client privilege. KRE 503(b) established the general rule of privilege.
Thus, the privilege consists of three elements. The relationship of attorney and client, communication by or to the client relating to the subject matter upon which professional advice is sought, and the confidentiality of the expression for which the protection is claimed. Robert G. Lawson, The Kentucky Evidence Law Handbook § 5.10 (Michie, 3d ed 1993), citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir 1989). Its purpose is to insure that confidences exchanged by an attorney and client are protected, thereby encouraging them to freely communicate. The term "client" is defined to include "a person, including a public officer, corporation, association, or other organization or entity, either public or private , who is rendered professional legal services by a lawyer. . . ." KRE 503(a)(1). The privilege extends to communications from attorney to client "if they constitute legal advice, or tend directly or indirectly to reveal the substance of a client confidence." Kentucky Evidence Law Handbook at § 5.10 citing United States v. Defazio 899 F.2d 626, 635 (7th Cir 1990). Of course, the privilege "must be strictly construed and given no greater application than is necessary to further its objective." Kentucky Evidence Law Handbook § 5.10.
97-ORD-133, p. 9, 10 citing 97-ORD-127, p. 1, 2 (copy enclosed). The University fails to demonstrate that these three elements were present in the records withheld.
It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c). This position finds support in Edmondson v. Alig , cited above. Construing KRS 61.880(1), the court of Appeals noted that "the language of the statute directing agency action is exact." Edmondson at 858. The Court then made the statement quoted above, that the statute requires "particular and detailed information" in response to a record request, and a "limited and perfunctory response" does not "even remotely comply with the requirements of the Act--much less . . . amount [] to substantial compliance." Id. To the extent that the University failed to provide particular and detailed information in response to Dr. Rastogi's request, its response was deficient.
Veterans Affairs Medical Center Kentucky Quality Assurance Materials
The final category of documents to which the University denies Dr. Rastogi access is VA Medical Center Kentucky quality assurance materials. The University relies on KRS 61.878(1)(k) which incorporates the confidentiality provisions of 38 USC § 5705. Dr. Rastogi noted that her discussions with the VA "have indicated that its QA administrative review was flawed, and the VA legal counsel has stated that this information is confidential and should not be in possession of any other entity other than myself and the VA." Since the review was flawed, Dr. Rastogi emphasizes the importance of knowing what information concerning her the University has in its possession. Having reviewed 38 USC § 5705, we find nothing in the statute which authorizes disclosure to a physician.
38 USC § 5705(a) provides that "records and documents created by the Department [of Veterans' Affairs] as part of a medical quality-assurance program . . . are confidential and privileged and may not be disclosed to any person or entity except as provided in subsection (b) of this section." The term "medical quality-assurance program" is defined as "a Department systematic health-care review activity designated by the Secretary to be carried out by or for the Department [for the purpose of improving the quality of medical care or improving the utilization of health-care resources in Department health-care facilities]." 38 USC § 5705(c)(2). The exceptions to the general rule of nondisclosure are found at 38 USC § 5705(b)(1)(A) through (D) which provide that the materials can only be disclosed:
( A ) To a Federal agency or private organization, if such record or document is needed by such agency or organization to perform licensing or accreditation functions related to Department health-care facilities or to perform monitoring, required by statute, of Department health-care facilities.
( B ) To a Federal executive agency or provider of health-care services, if such record or document is required by such agency or provider for participation by the Department in a health-care program with such agency or provider.
( C ) To a criminal or civil law enforcement governmental agency or instrumentality charged under applicable law with the protection of the public health or safety, if a qualified representative of such agency or instrumentality makes a written request that such record or document be provided for a purpose authorized by law.
( D ) To health-care personnel, to the extent necessary to meet a medical emergency affecting the health or safety of any individual.
Dr. Rastogi does not fall within any of these exceptions to the general rule of confidentiality, and she is therefore not entitled to inspect the materials which are in the hands of the University but are shielded from disclosure by the federal statute. How or under what authority the University came into possession of the quality assurance materials is unclear. It is, however, clear that if the University discloses the material, it can be "fined not more than $ 5,000 in the case of a first offense and not more than $ 20,000 in the case of a subsequent offense." 38 USC § 5705(e). We therefore find that the University of Kentucky properly withheld the materials.
Conclusion
In sum, we find that the University of Kentucky's general denial of Dr. Rastogi's specific requests was improper to the extent that it did not unequivocally advise Dr. Rastogi whether specific records to which she requested access exist. The University's general denial of her requests for generally described records was proper and correct. Consistent with the authorities cited above, the University should conduct a new search and formulate a new response to requests 1, 2, 6, and 7.
With respect to the records to which the University of Kentucky denied Dr. Rastogi access, we find that the University improperly redacted the names of other individuals referenced in documents relating to Dr. Rastogi. The University improperly relied on KRS 61.878(3) in denying her access to investigative records which it assembled following her complaint to the Equal Employment Opportunity Commission. Finally, the University failed to demonstrate that records characterized as attorney-client communications satisfied the three-part test for invocation of the privilege. The University should make arrangements for Dr. Rastogi to inspect these records.
The University of Kentucky properly withheld VA quality assurance materials pursuant to KRS 61.878(1)(k) and 38 USC § 5705. These materials are made confidential by federal enactment, and disclosure is limited to four identified groups. Dr. Rastogi does not belong to any of these groups, and therefore in not entitled to inspect the records.
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 proceeding.
Footnotes
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