Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Cabinet for Health Service's denial of attorney Stephen C. Sanders's September 18, 1997, request for information relating to his client, Gary Barnett's, father. Mr. Barnett, who has been diagnosed with a rare form of muscular dystrophy, "seeks information about his father's medical history to determine whether there is a genetic basis for the disease." Mr. Sanders explained that Mr. Barnett's father, David Mack Barnett, was hospitalized and died at a state facility in Danville, Kentucky on February 12, 1952. Mr. Sanders submitted proof of paternity in the form of a copy of Mr. Barnett's birth certificate.
On September 22, 1997, Janice Boone, records officer for the Cabinet for Health Services, denied Mr. Sanders's request. Relying on KRS 210.235, she explained that the law requires that such records be kept confidential except upon presentation of "an original signature from the patient or guardian or . . . a court order granting release of such information." Ms. Boone indicated that because David Mack Barnett is dead, Mr. Sanders must obtain a court order authorizing release of the information. It is from this denial that Mr. Sanders appeals.
We are asked to determine if the Cabinet for Health Services properly relied on KRS 210.235 in denying Mr. Sanders's open records request. We find that although its response was procedurally deficient, the Cabinet properly denied the request.
KRS 61.880(1) contains procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although the Cabinet responded in writing, and within three business days, it failed to include a statement of the specific exception authorizing the withholding of the elder Mr. Barnett's medical records. 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 210.235 to authorize the nondisclosure of applications, requests for admission and release, and all certifications, records, and reports maintained by the Cabinet which identify a patient or former patient. Pursuant to KRS 61.880(1), the Cabinet should have cited KRS 61.878(1)(l) in addition to KRS 210.235 as the basis for denying Mr. Sanders access to the records identified in this request. We urge the Cabinet for Health Services to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we find that the Cabinet properly denied Mr. Sanders's request on the basis of KRS 210.235. That statute provides:
1. The person identified or his guardian, if any, shall consent; or
2. Disclosure may be necessary to carry out the provisions of the Kentucky Revised Statutes, and the rules and regulations of cabinets and agencies of the Commonwealth of Kentucky; or
3. Disclosure may be necessary to comply with the official inquiries of the departments and agencies of the United States government; or
4. A court may direct upon its determination that disclosure is necessary for the conduct of proceedings before it and failure to make such disclosure would be contrary to the public interest. Nothing in this section shall preclude the disclosure, upon proper inquiry of the family or friends of a patient, of information as to the medical condition of the patient.
Like numerous other confidentiality provisions relating to records in the Cabinet for Health Services' custody, KRS 210.235 requires the Cabinet to withhold from all persons who do not fall within the excepted categories records which identify a patient or former patient unless the requester obtains the consent of the person identified or his guardian, or a court order. Mr. Sanders has not satisfied the requirements of the statute by obtaining a court order.
In OAG 76-420, this office cited KRS 210.235 in support of the position that personal mental health records are exempt from public inspection. We affirmed this view in OAG 82-414, holding that only the person who is the subject of the records, or his guardian, is entitled to a copy of his medical records pursuant to KRS 210.230(1). We adopted the reasoning of these opinions in OAG 87-75, holding that KRS 210.235 applies to the Cabinet and a psychiatric center operating under the Cabinet's auspices, both of which are strictly bound to observe the confidentiality requirement codified in that provision. These opinions are controlling.
While there may be occasions when the unequivocal language of KRS 210.230 works a hardship on a party seeking access to medical records for a clearly legitimate purpose, this office has consistently recognized that the Cabinet is prohibited from releasing those records which directly or indirectly identify a patient or former patient. We therefore conclude that the Cabinet for Health Services properly denied Mr. Sanders's request.
In closing, we note that KRS 171.590 provides:
The department [for Libraries and Archives] shall be responsible for the custody, use, and withdrawal of records transferred to it. All papers, books, and other records of any matters so transferred are public records and shall be open to inspection by any interested person subject to reasonable rules as to time and place of inspection established by the department; provided that whenever any records, the use of which is subject to statutory limitations and restrictions, are so transferred, the department shall enforce such limitations. Restrictions shall not remain in effect after the records have been in existence for fifty (50) years .
(Emphasis added.) We have been advised by representatives of the Department for Libraries and Archives that requests for records which have been archived that are directed to the Department are funneled back to the agency which generated the records. However, under this provision, confidentiality restrictions expire after fifty years have elapsed, and the Department is no longer bound to observe those restrictions. It is conceivable that if David Mack Barnett was hospitalized prior to 1948, some portion of his medical records are no longer excluded from inspection since they are over fifty years old. We urge the Cabinet to review the records to determine if any of Mr. Barnett's records can be released.
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.