00-ORD-229

00-ORD-229

December 11, 2000

In re: The Courier-Journal/Department of Corrections

Open Records Decision

        The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in partially denying Courier-Journal staff writer Andrew Wolfson’s August 22, 2000, request for various records pertaining to inmate Tommy Dozier’s application for medical parole. For the reasons that follow, we affirm the Department’s disposition of The Courier-Journal’s request.

        On July 21, 2000, Mr. Wolfson requested a copy of Mr. Dozier’s application for medical parole and the Parole Board’s response to that application. The Department of Corrections denied that request on the basis of KRS 61.878(1)(a), asserting that disclosure of the records would constitute a clearly unwarranted invasion of Mr. Dozier’s privacy. Shortly thereafter, Mr. Wolfson submitted a new request for records, accompanied by a July 24, 2000, release executed by Mr. Dozier waiving his privacy interest and authorizing the release of “any records reflecting [his] diagnosis, prognosis, and treatment, and any records reflecting [his] request for a medical pardon and the Parole Board’s denial of that request.”  On July 30, 2000, Mr. Dozier died.

        In his August 22 application, Mr. Wolfson requested access to:

a)        Records showing Dozier’s application(s) for a medical parole, including applications made on his behalf by physicians employed by or under contract to the Department of Corrections; and/or applications made on his behalf by other department employees; and/or applications by other persons not connected to the department;

(b)        Records reflecting the Parole Board’s responses to those applications.

(c)        Parole Board and/or Corrections Department records reflecting Dozier’s diagnosis and prognosis;

(d)        Records reflecting who, if anyone, testified at Parole Board hearings for or against a medical parole for Dozier;

(e)        Records showing the Parole Board’s 144-month deferment of Dozier in January 1995, and records showing the reason cited for that deferment, as well as applications or letters presented by Dozier at that time requesting parole;

(f)        Any non-exempt records showing the names of inmates for whom Corrections Department doctors requested medical parole from Jan. 1, 1995 to date.

The Department responded on August 30 by providing Mr. Wolfson with some of the records identified in his request, but denied that portion of the request relating to medical records and medical parole records. The Department argued that the release executed by Mr. Dozier was invalid after his death, and that the disputed records were protected by “the patient/doctor privilege under KRS 502.”  This appeal followed.

        In letters directed to this office following commencement of The Courier-Journal’s appeal, Department of Corrections Staff Attorney Tamela Biggs advised us that all responsive records in the Department’s custody, consisting of some 3,000 pages of medical records generated by in-house health care providers, would be released to Mr. Wolfson. The Department continued to deny The Courier-Journal access to “free world” medical records, however, on the basis of 902 KAR 20:016 Section 3 (11)(c). Ms. Biggs described these records as medical records of an outside health care provider, in this case Tri-County Baptist Hospital, copies of which are furnished to the Department for consultation and to ensure continuity of care. On behalf of the Department, she deferred to Tri-County’s interpretation of 902 KAR 20:016 Section 3(11)(c) “that the records are the property of the hospital and have been provided for the narrow purpose of consultation or continuity of care [, and] therefore . . . cannot be re-disclosed to a third party.”  Continuing, Ms. Biggs observed:

This is true even if the patient has signed a release to the Department. The release must be provided directly to the hospital by one of the individuals listed in the administrative regulation. In the instant appeal, that would be the executor of the decedent’s estate.

It is this narrow category of records, consisting of medical records generated by Tri-County Baptist Hospital in the treatment of inmate Tommy Dozier, and provided to the Department for the limited purpose of continuity of care, that remain in dispute.

        In response to this office’s KRS 61.880(2) request for additional documentation to substantiate the agency’s position, Tri-County Baptist Hospital Corporate Legal Counsel Jessica L. Swim elaborated on her client’s position. Although she could cite no legal authority supporting her position, Ms. Swim advised:

[I]t is well established industry practice, not only in Kentucky, but elsewhere, that information generated in the normal course of business by a health care provider is the property of such health care provider. Although records may be routed to other health care providers for continuity of care, the receiving provider did not generate the information, does not own the information and the information is not “part” of the receiving provider’s records although it may be filed “with the provider’s records.”  The receiving provider has no authority to re-release the originating provider’s records.

Ms. Swim explained the twofold rationale underlying this policy:

First, such a policy helps maintain the integrity of the records upon which health care providers and others may rely. To the extent that records are forwarded on ad infinitum the integrity and reliability of the contents of the records becomes questionable. Second, such a policy assists the patient, who also has an ownership interest in the information contained in the record, to control what information is released. Should a patient desire information generated by a specific health care provider be released, he or she may specifically ask that provider to release the records. As a general rule, patients who sign an authorization for release of medical records by a certain provider assume that those are the only records that will be released.

Expressing grave concern about the “highly personal nature of medical records and the highly public nature of releasing the records to a newspaper,” Ms. Swim maintained that the Tri-County Baptist Hospital records that Mr. Wolfson requested from the Department of Corrections “were not the Department’s records to provide [inasmuch as the Department] did not generate the information, does not own the information and the information is not ‘part’ of the Department’s records although they may have been filed ‘with’ the Department’s records.”  We believe that Tri-County and the Department of Corrections properly construe the controlling regulation, and affirm the Department’s disposition of this portion of Mr. Wolfson’s request.

        Resolution of this appeal turns on the application of 902 KAR 20:016 Section 3(11)(c) to medical records generated by Tri-County Baptist Hospital that are in the custody of the Department of Corrections. That regulation provides as follows:

        (c)        Records of patients are the property of the hospital and shall not be taken from the facility except by court order. This does not preclude the routing of the patient’s records, or portion thereof, including x-ray film, to physicians or dentists for consultation.

        1.        Only authorized personnel shall be permitted access to the patient’s records.

        2.        Patient information shall be released only on authorization of the patient, the patient’s guardian or the executor of his estate.

It is the opinion of this office that although the disputed records would normally be characterized as public records, since they consist of documents, “regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency,” namely the Department of Corrections, custody and control of these records is governed by 902 KAR 20:016 Section 3(11)(c). The Department is only a casual possessor of the records, and not their official custodian in whose hands rest decisions concerning their release.

        In 98-ORD-100 this office stated that “[t]he weight of recent authority indicates that the concept of casual possession, which has no statutory basis, has been all but discarded.”¹  98-ORD-100, p. 5. In 98-ORD-100, the Attorney General held that the Lexington Fayette Urban County Government erred in denying The Lexington Herald-Leader’s request for investigative files and other records that it held concurrently with other public agencies that had either generated, or been the recipient of, the disputed records. LFUCG asserted that it was “the ‘casual possessor’ of these records rather than the ‘official custodian’ because the records [were] still in the custody of the ‘official custodians’,” in this case the Fayette County Coroner, the Attorney General’s Office, the University of Kentucky, the Fayette County Attorney, and the Kentucky Bar Association. At page 5 of 98-ORD-100, this office observed:

        On only one occasion in the immediate past has this office formally recognized the concept. In 94-ORD-155, the requester sought to inspect records generated by the United States Department for Health and Human Services Social Security Administration, which were in the custody of the Cabinet for Human Resource’s Division of Disability Determinations. Access to these records was restricted by federal regulation and policy which provided that only the Director of the Social Security Administration’s Office of Information was authorized to determine whether to release or withhold Social Security Administration records, including records in the regions. On this narrow basis, the Attorney General concluded that the Division of Disability Determination was the casual possessor of the disputed record, and therefore not required to address the inspection issue.

Although we found that LFUCG’s reliance on the concept of casual possession was misplaced because it did not assert that it lacked custody and control of the records, we expressed our reluctance to “abandon entirely the concept . . . .”  Id. Noting that the concept “should be sparingly invoked,” we nevertheless recognized that “rare cases may be presented in which it is applicable . . . .”  Id. The appeal before us presents such a case.

        Here, as in 94-ORD-155, the entity that generated the disputed records has clearly expressed an intent to retain control over the records under authority of 902 KAR 20:016 Section 3 (11)(c). The Department of Corrections received Mr. Dozier’s medical records from Tri-County, pursuant to 902 KAR 20:016 Section 3(11)(c), for purposes of consultation and continuity of care, and under the restrictions on release imposed by that statute. Here, as in 94-ORD-155, the Department, “as casual possessor of the records, is . . . ‘not required to address the inspection issue’ relative to these records.”  94-ORD-155, p. 6, citing OAG 83-342, p. 2. Only Tri-County, which did not relinquish custody and control of the records by routing them to the Department, may determine whether to release or withhold the records in a manner consistent with the governing regulation and implementing policies. We find no error in the Department’s disposition of The Courier-Journal’s request.

        We continue to ascribe to the view that the concept of casual possession must be sparingly invoked, and that it is only available where independent legal authority vests absolute custody and control of records in the entity from which the casual possessor obtained those records, and that entity has made clear its intent to retain custody and control. The concept cannot be invoked by a public agency as a means of avoiding its duties under the Open Records Act, and must be utilized in the rarest of cases.

        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 proceedings.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#570

Distributed to:

Jon L. Fleischaker

2000 Meidinger Tower

462 S. 4th Avenue

Louisville, KY 40202

Tamela Biggs

Department of Corrections

Office of General Counsel

2439 Old Lawrenceburg Road

Frankfort, KY 40602-2400

Jessica Swim

Baptist Healthcare System

4007 Kresge Way

Louisville, KY 40207