Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville and Jefferson County Board of Health violated the Open Records Act in denying Nader Shunnarah's November 2, 1999 request for "duplicates of the current open reports of lead poisoning in Jefferson County, Kentucky." For the reasons that follow, we find that the Board of Health's response was procedurally and substantively inconsistent with the Act.
On behalf of his client, the Board of Health, Stephen E. Smith denied Mr. Shunnarah's request in a letter dated November 11, 1999. He explained that the requested records "are not maintained in such a way as to separate the medical and health information from the environmental information[, and] . . . cannot be so dedacted [sic] as to provide releasable information." Mr. Smith concluded that the records identified in Mr. Shunnarah's request "would not be made available under the Open Records Act, " noting that the Board of Health is not obligated to create a record to satisfy that request. Some time later, Mr. Shunnarah initiated this appeal, asserting that KRS 211.902 mandates disclosure of these records.
In a supplemental response directed to this office following commencement of Mr. Shunnarah's appeal, Mr. Smith elaborated on the Board's position. He advised:
I am reasonably aware of [Mr. Shunnarah's] many requests . . . to the agency for records regarding the lead based paint program of the Health Department. He had asked for investigative records 1 of the department. Consistently in the past, the Health Department has refused to release the records of the investigations. The records of the health department are not segregated by name or address. The investigations are prompted by notification that someone at that address has demonstrated illness related to exposure to lead based paints. There is no way that the Health Department can separate the identity of the individual from the address of the individual. It is the position of the Health Department that the medical information related to the residents of that particular address outweigh the need for the information from an unrelated party. We have asked Mr. Shunnarah to provide a medical release form from any particular individual and we will provide that individual's information.
It is the opinion of this office that the responses submitted on behalf of the Louisville and Jefferson County Board of Health do not state a sufficient legal basis for denying Mr. Shunnarah access to the nonexempt portions of lead poisoning reports in its custody.
We begin by noting certain irregularities in the Board's response. Public agency duties in responding to open records requests are delineated under KRS 61.880(1). 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.
KRS 61.880(1)(emphasis added). In construing this provision, the Kentucky Court of Appeals has articulated a rigorous standard by which to judge the adequacy of an agency's response to a request. At page 858 of Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), the court declared:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents . . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act - much less amount [] to substantial compliance.
In the appeal before us, the Board omitted any reference to the statutory exemption authorizing nondisclosure in its original and supplemental responses. Moreover, the Board hinted at the difficulties associated with "separat[ing] medical and health information from environmental information" and "separat[ing] the identity of the individual from the address of the individual," but failed to explain what those difficulties are and why they preclude access to the nonexempt portions of reports. To this extent, its response was procedurally deficient.
Turning to the substantive issue in this appeal, we find that the Board does not state a legally sufficient basis for denying Mr. Shunnarah's request. Without expressly so stating, it appears that the Board's argument is premised on KRS 61.878(1)(a), authorizing public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
In analyzing the propriety of an agency's reliance on KRS 61.878(1)(a), we begin with a determination of whether the disputed records are of a personal nature. Only if there is a cognizable privacy interest in the records do we proceed to the second part of the analysis: determining whether public disclosure would constitute a clearly unwarranted invasion of personal privacy. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992); Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). Public disclosure of records of a personal nature does not constitute a clearly unwarranted invasion of privacy if the privacy interest implicated is outweighed by the public's "right to be informed as to what their government is doing." Zink at 829. The courts have thus struck a balance between nondisclosure of records containing "information about private citizens that . . . reveals little or nothing about an agency's own conduct," and disclosure of records containing information about private citizens that nevertheless "subject[s] agency action to public scrutiny." Id. In the latter case, KRS 61.878(4) requires agencies to separate excepted material from nonexcepted material, if both appear in the same document, and make the nonexcepted material available for examination, rather than deny access to the document in its entirety.
Chapter 211 establishes a statewide program for the prevention, screening, diagnosis, and treatment of lead poisoning within the Cabinet for Health Services, and recognizes, at KRS 211.901(6), that:
Local boards of health may, by the adoption of local regulations, establish programs for the prevention, screening, diagnosis, and treatment of lead poisoning; provided that such regulations are the same as the provisions of KRS 211.900 to 211.905 and KRS 211.994 and the regulations promulgated by the secretary (for Health Services] . . . ."
(Emphasis added.) In Commonwealth v. Do, Inc., Ky. 674 S.W.2d 519 (1984), the Louisville and Jefferson County Board of Health successfully defended a challenge to its authority to regulate and enforce its own lead poisoning prevention program. Concluding that the Board of Health was not preempted or otherwise prohibited from enforcing its lead poisoning regulations, the Court reasoned:
The true test of concurrent authority is the absence of conflict. Here, cooperative authority is extremely valuable and in the best interest of the public. The mere fact that the state has made certain regulations does not prohibit local governments from establishing additional requirements as long as there is no conflict between them.
Do, Inc. at 522 (emphasis added).
KRS 211.902 establishes reporting requirements relating to "person[s] found or suspected to have a level of lead in the blood in excess of the permissible limits," mandating reports, within forty-eight hours, "to the cabinet or to the local or district health officer who shall in turn report such information to the cabinet. " KRS 211.902(1). The report must include:
(a) The name and address of the person found or suspected to have lead poisoning;
(b) The date of birth of such person;
(c) The results of the appropriate laboratory tests made on such person;
(d) Any other information about such person deemed necessary by the secretary [for Health Services].
KRS 211.902(1)(a)-(d). Pursuant to KRS 211.902(2):
The secretary shall maintain comprehensive records of all reports submitted pursuant to KRS 211.900 to 211.905 and 211.994. Such records shall be geographically indexed in order to determine the location of areas with a high incidence of reported lead poisoning. Such records shall be public records; provided, however, that the name of any individual shall not be made public unless the secretary determines that such inclusion is necessary to protect the health and well-being of the affected individual.
(Emphasis added.) A local regulation or policy by which the same or similar reports are made confidential clearly conflicts with this provision, and must yield to state law.
Clearly, reports documenting a medical condition such as lead poisoning are records containing information of a personal nature. However, the Kentucky General Assembly has determined that these reports must be made public, thus obviating the necessity of determining whether disclosure would constitute a clearly unwarranted invasion of personal privacy. It is illogical to suggest that lead poisoning reports in the custody of the Cabinet are public and the same or similar reports in the custody of the Louisville and Jefferson County Board of Health are confidential. The only exception to the requirement of openness recognized in KRS 211.902(2) authorizes nondisclosure of the names of individuals appearing on reports. Pursuant to KRS 61.878(4), the Board may redact these entries from the reports before disclosing them to Mr. Shunnarah. 2 The Board must otherwise fully disclose the reports notwithstanding the fact that an individual's identity can be extrapolated from his or her address. The General Assembly has determined that addresses, along with dates of birth, and results of laboratory tests must be disclosed, and we do not believe that the Board of Health may adopt a policy or practice contrary to the law. We fail to see how redacting the name of the person suspected or found to have lead poisoning will impose a significant hardship on the Board.
In a seminal opinion, the Kentucky Supreme Court observed:
The public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Board of Examiners at 328. We believe that inspection of the lead poisoning reports in the custody of the Louisville and Jefferson County Board of Health serves the public interest by revealing whether the Board is discharging its duties relative to the prevention, screening, diagnosis, and treatment of lead poisoning. KRS 211.901(6). Whatever the privacy interests of the individuals suspected or found to have lead poisoning, those interests are clearly outweighed by the public's interest in disclosure which is statutorily recognized at KRS 211.902(2).
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.
Nader George Shunnarah4304 St. Regis LaneLouisville, KY 40220
Lois WellinghurstJefferson Co. Health Dept.Lead Poisoning Control Program400 E. Gray StreetLouisville, KY 40202
Stephen E. SmithGoldberg & Simpson, P.S.C.3000 National City Tower101 South Fifth StreetLouisville, KY 40202-3118
Footnotes
Footnotes
1 The issue before us is not whether Mr. Shunnarah is entitled to investigative records, but whether he is entitled to open reports comparable or identical to those addressed in KRS 211.902(2).
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2 The Attorney General has repeatedly recognized that redaction of exempt information from an existing record is not equivalent to the creation of a record. 95-ORD-82; 97-ORD-92; 98-ORD-33.
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