00-ORD-224
December 5, 2000
In re: Regina Bottom/Kentucky Board of Nursing
Open Records Decision
The issue presented in this appeal is whether the Kentucky Board of Nursing violated the Open Records Act by partially denying the requests of Regina Bottom to inspect certain of the Board’s records relating to complaints Ms. Bottom and members of the Kaiser family had filed with the Board concerning the care received by her father, Albert C. Kaiser, Jr., from the nursing staff at Columbia Hospital Suburban.
Twice the Credentials Review Panel of the Board of Nursing considered the complaints. Each time, the Panel directed the complaints be filed away, finding there was insufficient evidence of a violation of the Kentucky Nursing Laws to warrant the initiation of formal disciplinary action.
By letter dated November 12, 1999, the Board advised Ms. Bottom as to the final action taken by the Credentials Review Panel, at its November 9, 1999 meeting, on her complaints concerning the practice of several nurses at Suburban Hospital, Louisville, Kentucky, as follows:
The staff has investigated this matter and all information was reviewed by the Credentials Review Panel. It has been determined that the evidence of a violation of the Kentucky Nursing Laws is presently insufficient to warrant the initiation of formal disciplinary action.
By letter of February 3, 2000, the Board advised Ms. Bottom as to the second final action the Panel had taken on her complaints, stating:
The staff at the Board of Nursing has conducted facility visits and interviewed the staff that were involved in the nursing care of your father, Albert C. Kaiser, Jr., during his hospitalization at that facility. In addition, Mr. Kaiser’s entire medical record for that hospitalization has been reviewed, as well as the reports that you have submitted from the investigation conducted by the Office of the Inspector General, Division of Licensing and Regulation. All of this information was presented to and reviewed by the Credential Review Panel of the Board of Nursing.
Based on the information submitted by you and on the information obtained by the Credential Review Panel of the Kentucky Board of Nursing that the evidence of a violation of the Kentucky Nursing Laws is insufficient to warrant the initiation of formal disciplinary action.
By letter dated September 9, 2000, Ms. Bottom made an open records request to inspect and copy the following agency documents:
1. Documents that might contain the investigative report referenced in the correspondence with me dated 8-10-2000.
2. Documents that might contain transcripts and/or statements made to investigators by anyone regarding Albert C. Kaiser Jr.
3. Documents that might contain full minutes and voting records of any convened panel that discussed or mentioned Albert C. Kaiser Jr.
4. Documents that might contain names of person/s interviewed about the care of Albert C. Kaiser Jr.
5. Documents that might contain reasons why Doug Loepker-Edwards was not interviewed regarding Albert C. Kaiser Jr.
6. Documents that might contain reasons why Debbie Taylor was not interviewed regarding Albert C. Kaiser Jr.
7. Documents that might contain information regarding decisions not to interview person/s with knowledge about the care of Albert C. Kaiser Jr.
8. Documents that might contain correspondence between the Board of Nursing and the Kentucky Division of Licensing and Regulation.
9. Documents that might contain qualifications, backgrounds and/or histories of any person/s that rendered decisions regarding the care of Albert C. Kaiser Jr.
10. Documents that might contain information regarding the meeting between Board of Nursing personnel Mr. Zink, Ms. Amig and Ms. Johanson and the Kaiser family on 2-23-00.
11. Documents that might contain information regarding the amount of time spent on investigations regarding the case of Albert C. Kaiser Jr.
12. Documents that might contain full minutes and voting records of the panel referenced in the correspondence Board of Nursing sent me dated 7-21-00.
13. Documents that might contain the name of Regina Bottom, Mary Regina Bottom, or Gina Bottom.
14. Documents that might contain the name of Albert C. Kaiser Jr.
· I especially state that I do not require copies of the medical records, chart(s) or medical summaries supplied by the family of Albert C. Kaiser Jr., to the Board of Nursing, unless handwritten notations have been made or appended to such documentation by personnel of BON.
· I especially state that I do not require copies of any information or documentation supplied by the family of Albert C. Kaiser, Jr., to the Board of Nursing, unless handwritten notations have been made or appended to such documentation by personnel of BON.
(Emphasis in the original.)
By letter dated September 11, 2000, Nathan Goldman, General Counsel, responded to Ms. Bottom’s request on behalf of the Board, stating:
We are in receipt of your Open Records request dated September 9, 2000 and received in this office on September 11, 2000. You attach a list of 14 categories of requested documents. We would note that your present request is substantially similar to your request dated August 7, 2000. For that reason, we will respond to your present request by reference to our previous response.
As regards items numbered 1, 2, 4, and 10 in your letter, your request for these categories was previously denied.
As regards items numbered 3 and 12 in your letter, we provided the only existing documents that fit those categories.
As regards items numbered 5, 6, 7, 8, 9, and 11 in your letter, we stated previously that such documents do not exist.
As regards items numbered 13 and 14, your request is overbroad. See OAG 91-58.
The Board’s previous response dated August 10, 2000, which was referenced in its September 11th response, provided:
I am in receipt of your open records request dated August 7, 2000 and received by this office on August 8, 2000. The Open Records Law only requires that a state agency make available for inspection and copying documents in its possession. It does not require the agency to compile information or make lists not in existence. OAG 90-100.
In response to your specific requests, the following items are not documents in the possession of the Board of Nursing.
1. Names and positions of all persons interviewed (other than what is contained in the investigative report).
2. Written reasons for failure to contact and interview any person listed in the complaint.
3. A list of any and all contacts that may have taken place between the Board of Nursing personnel and personnel of the Kentucky Division of Licensing and Regulation.
4. Names and relevant background histories of the members of Board of Nursing Panels.
5. Any and all transcripts generated by the Panels.
6. Notes made by any and all members of all Panels.
7. Investigative time sheets.
The following items that you requested are being withheld from inspection:
1. Investigative reports, pursuant to KRS 61.878(1)(i) and (j).
2. Notes compiled by investigators and legal staff, pursuant to KRS 61.878(1)(i) and (j) and the attorney work product rule.
These documents are exempt from the Open Records Law as being notes from the investigators and containing recommendations and opinions. See, for example, OAG 83-469, 86-19, 87-25 and 87-43.
The only other item you requested in your letter is a copy of minutes of any and all meetings at which the matter of Albert C. Kaiser, Jr. was discussed. Reports from the Credentials Review Panel of the Board of Nursing for November 9. 1999 and January 21, 2000 are attached.
Pursuant to KRS 61.880(2) and 40 KAR 1:030, Section 3, this office requested that the Board provide additional documentation relative to the issues raised in the appeal. Specifically, we requested a copy of the investigative report(s) relative to the complaints filed by Ms. Bottoms and any documents reflecting final agency action on the matter. The Board provided copies of the February 3, 2000 and November 12, 1999 letters to Ms. Bottom, quoted above, which notified her that the Credentials Review Panel had investigated her complaints and determined that evidence of a violation of the Kentucky Nursing Laws was insufficient to warrant the initiation of formal disciplinary action. In addition, the Board provided a copy of an Investigative Meeting Report, dated February 23, 1999, which appear to be handwritten notes of a meeting between Ms. Bottom and other complainants and members of Board of Nursing staff and a general discussion of the complaints, the jurisdiction of the Board, and the review process.
We are asked to determine whether the actions of the Board violated the Open Records Act. For the reasons that follow, we conclude that the responses of the agency were in substantial compliance with the Act.
The records at issue fall generally into two groups of records: records that do not exist (numbered requests 5-9, and 11) and investigative records that were not incorporated into or made a part of final agency action (numbered requests 1, 2, 4, and 10). Requests 13 and 14 were denied on the basis that the requests were overly broad.
We address first the request for records that the Board indicated did not exist. This office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. The Board advised Ms. Bottom that the records requested in numbered requests 5-9, and 11 do not exist. Obviously, a public agency cannot afford a requester access to records that it does not have or which no longer exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the actions of the Board as to these requested records were in accord with the requirements of the Open Records Act.
The Board denied the records requested in numbered requests 1, 2, 4, and 10. These were requests for investigative records, such as investigative reports, investigative notes, transcripts, witness statements, records of people interviewed, records regarding the meeting between Board of Nursing personnel Mr. Zink, Ms. Amig and Ms. Johanson and the Kaiser family on 2-23-00. The Board, relying upon KRS 61.878(1)(i) and (j), denied access to these records on the basis that they were “preliminary in nature, being notes from the investigators and containing recommendations and opinions.”
KRS 61.878(1)(i) and (j) authorize nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 97-ORD-168, this office analyzed the applicability of these exceptions to records generated in the course of an internal investigation into allegations of misconduct against a police officer. We quoted extensively from a 1982 decision of the Kentucky Court of Appeals that dealt with an internal affairs investigation conducted by the City of Louisville. Again, we quote from that opinion:
It is the opinion of this Court that subsections [(i)] and [(j)] quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief’s final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
This holding, however, is limited to Internal Affairs’ involvement. We do not find that the complaints per se are exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations. We acknowledge that it is possible that these complaints could be afforded continuing exemption under subsection [(i)] relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis and would be dealt with under KRS 61.878[(4)]: “If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.”
City of Louisville v. Courier-Journal and Louisville Times Company, above.
In Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983), the Court of Appeals found that the Board must disclose records reflecting final actions taken against its licensees, as well as the complaints which initially spawned the investigation, since the final actions taken stemmed from the complaints and the complaints were deemed incorporated as part of the final determination. The court also recognized, however, that internal preliminary materials not incorporated into final agency action remain exempt under the statute and principles set out in City of Louisville v. The Courier-Journal and Louisville Times Co., (supra). The court opined:
It would appear to this court and it is so held, that those documents defined in subsection [i] and [j] which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records . . . . Unless so adopted and made a part of the Board's final action, such documents shall remain excluded under Subsections [i] and [j] of the Act.
Kentucky State Board of Medical Licensure, supra at 956, 957. (Emphasis added.)
In 97-ORD-168, we found that the investigative records in dispute were not exempt from disclosure under KRS 61.878(1)(i) and (j) because the final decision maker “adopted the findings and recommendations of the investigative officer by affixing his signature to the report.” 97-ORD-168, p. 7. Those investigative materials that were once preliminary in nature lost their exempt status “because the final decision maker, here the Commissioner, signal[ed] his concurrence with the investigator’s findings and recommendations on the report . . . [which was] physically incorporated into his final decision relative to the inquiry. . . .” Id. The Commissioner, we concluded, “adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions.” Id. In sum, this office held:
[A]n internal affairs report can not be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports. The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency’s internal decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken.
97-ORD-168, p. 3.
Conversely, in 98-ORD-123 we affirmed an agency’s denial of a request for an internal affairs report on the basis of KRS 61.878(1)(i) and (j) because the personnel order reflecting final disciplinary action, which the agency released, did not incorporate, physically or by reference, the findings and recommendations of the investigating officer. At page 12 of 98-ORD-123, we observed:
Although [the personnel order] contains scant information relative to the specific conduct giving rise to the disciplinary action, it is not by this standard that we assess the propriety of the agency’s invocation of KRS 61.878(1)(i) and (j). For purposes of absolute clarity, we reject . . . [the] argument that 97-ORD-168 stands for the principle that “by failing to make findings of fact in a Notice of Final Action, the police have, in effect, adopted the preliminary investigation in the Internal Affairs report.” This was neither the express nor implied holding in that decision. The Attorney General is not at liberty to so radically depart from the clearly expressed interpretation of the Open Records Act as set forth in City of Louisville and its progeny.
In the instant case, the Credentials Review Panel of the Board took final action on the complaints by directing that the complaints be filed away, finding there was insufficient evidence of a violation of the Kentucky Nursing Laws to warrant the initiation of formal disciplinary action. None of the requested investigative records were incorporated into or made a part of the Panel’s final action on the complaints. Thus, they retain their preliminary character and were properly withheld from disclosure under KRS 61.878(1)(i) and (j).
In her letter of appeal, Ms. Bottom argues that as the executrix of her father’s estate and in her own right, she is entitled to inspect any records in which her father or she is mentioned by name. Her status as executrix of her father’s will has no bearing on resolution of records access issues under the Open Records Act. Moreover, the release of records under KRS 61.884 is subject to the provisions of KRS 61.878. KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
As noted above, we concluded the Board properly relied on KRS 61.878(1)(i) and (j) in denying Ms. Bottom’s request for its investigative records. Accordingly, since the requested investigative records are exempt from disclosure under KRS 61.878(1)(i) and (j), they are not required to be disclosed under KRS 61.884. If Ms. Bottom describes with reasonable particularity records in which she is mentioned by name and those records are not otherwise exempt under a provision of KRS 61.878, those records should be made available for her inspection. KRS 61.884.
The Board also denied requests numbered 13 and 14 that asked to inspect all documents which contain the name Regina Bottom, Mary Regina Bottom, or Gina Bottom or Albert C. Kaiser, Jr. on the basis that the requests were overly broad.
In 99-ORD-14, this office expressly held:
[A] request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and . . . generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records.
94-ORD-14, p. 7.
This decision was premised on the notion that:
The purpose and intent of the Open Records Act is to permit “the free and open examination of public records.” KRS 61.[871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
92-ORD-1261, p. 3. Here, as in 99-ORD-14, the requested records were not identified with “reasonable particularity,” nor were they of an identified, limited class. Here, as in 99-ORD-14, in order to comply with such a request, the Board would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it, to determine if the names appeared in or on the record. As framed, we conclude Mr. Bottom’s requests in numbered requests 13 and 14 are overly broad and the Board’s response in this regard was proper.
In 94-ORD-12, the Attorney General articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
The purpose and intent of the Open Records Act is to permit the “free and open examination of public records.” KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
Accordingly, we conclude the Board was not required to honor the overly broad requests and properly denied them.
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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#561
Distributed to:
Regina Bottom
1012 Harmony Landing Road
Goshen, KY 40026
Nathan Goldman
General Counsel
Board of Nursing
312 Whittington Parkway, Ste. 300
Louisville, KY 40222-5172