Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in the disposition of Norman R. Lemme's April 19, 2004, request for records relating to Kentucky Baptist Homes for Children and Spring Meadow Residential Treatment Facility. For the reasons that follow, we find that the Cabinet's disposition of Mr. Lemme's request was procedurally deficient but substantively correct.
By letter dated April 19, 2004, Mr. Lemme requested copies of:
1. Any and all Contracts between The Commonwealth of Kentucky and Kentucky Baptist Homes for Children (hereafter KBHC) in effect during the time frame regardless of date of agreement.
2. Any contracts, memoranda or other agreements between the Commonwealth of Kentucky and KBHC, with respect to the placement of youth at the Spring Meadows Residential Facility including but not limited to the classification level of the youth to be placed and accepted at Spring Meadows and if changes made during the period both pre and post change records, including but not limited to CRP-001, 002, 003 etc. as applicable.
3. Any evaluation reports by the Commonwealth of the Spring Meadows Residential Facility.
4. If any youth were placed at the Spring Meadows Residential Facility from the Juvenile Justice section of the Justice Cabinet as an alternative placement, a list of the ages of the offenders and description of their offenses.
5. Any and all reports, memos or other notations of "runaways" from Spring Meadows Residential Facility, including if the "runaways" were found and if the "runaways" committed any public offense during that time. Please also include whether the youth was returned to Spring Meadows and if not why not.
6. The amounts paid KBHC for the services it provided during the time period.
Mr. Lemme's request encompassed records generated between January 1, 2002, and April 19, 2004, the date on which he submitted his request.
On April 22, 2004, LaShana Harris, Records Management Section, Cabinet for Health and Family Services, responded to Mr. Lemme's request in what the Cabinet itself characterizes as "a form letter sent to any person who submits a request for records to the Cabinet's Division of Protection and Permanency." 1 She advised:
This correspondence is in response to your request for a copy of the case record regarding the aforementioned individual. 2 The materials that you have requested are currently not available in this office. The case record must be copied by our local field staff and forwarded to this office for review and redacting in accordance with the Kentucky Open Records Act.
The Health Insurance Portability and Accountability Act ("HIPAA") passed by Congress in 1996, and a subsequent regulation often referred to as the "privacy rule" govern the disclosure of certain health information. In general, the HIPAA privacy rule requires that Protected Health Information ("PHI") of an individual not be disclosed unless certain conditions are met.
Ms. Harris described four exceptions to the privacy rule, and the documentation required to qualify under one of the exceptions, noting that "if the records management section does not receive the requested documentation (court order and/or the HIPAA authorization) within 10 days, our file regarding your request will be closed." Continuing, Ms. Harris observed:
Pursuant to KRS 61.880, please be advised that based on the volume of the files and the number of open record requests this office receives, the review will be completed within ninety days. Please be aware there is the possibility the material may not be available on this date. If not, the material will be made available as soon as possible thereafter.
. . .
The law requires that we protect the privacy and confidentiality of other individuals who may be mentioned in our records. Personal information about others may be redacted from the documents you requested.
Shortly after he received the Cabinet's response, Mr. Lemme initiated this appeal questioning the agency's invocation of HIPAA relative to any of the requested records. It was his position that the Cabinet could not reasonably "confuse Kentucky Baptist Homes for Children, Inc., a Kentucky corporation, with an individual," could not properly require submission of HIPAA compliant documentation within 10 days or treat his request as closed, and could not justifiably establish a minimum 90 day turnaround for that request. (Emphasis in original.)
In supplemental correspondence directed to this office following commencement of Mr. Lemme's appeal, Jon R. Klein, Assistant Counsel, Cabinet for Health and Family Services, amplified on the Cabinet's position. Mr. Klein refuted Mr. Lemme's allegation that the Cabinet denied his request and acknowledged that the form letter sent to him "does not adequately respond to requests like [his] that do not request health information about an identifiable person." 3 Turning to the question of access to the records identified in Mr. Lemme's request, Mr. Klein advised:
The Cabinet agrees that Mr. Lemme's request does not involve records containing individually identifiable health information and is not subject to HIPAA requirements. Thus, while the Cabinet is still attempting to identify and locate records in its possession that are responsive to Mr. Lemme's request, the Cabinet agrees to provide all such records no later than May 17, 2004. The Cabinet will contact Mr. Lemme at a later date regarding copying charges and postage.
Mr. Lemme should be aware, however, that the Cabinet may not be in possession of all of the records he requests. For example, information regarding children placed by the Justice Cabinet at the Spring Meadows Residential Facility should be requested from:
Likewise, there may be other Kentucky agencies in possession of records that Mr. Lemme would consider responsive to his request and that are not in the possession of the Cabinet.
Mr. Klein suggested that Mr. Lemme contact these agencies to ascertain what responsive records they might possess.
On May 24, 2004, Mr. Klein notified this office that on May 17, 2004, the Cabinet honored requests 1, 2, 3, and 6 of Mr. Lemme's request by furnishing him with copies of the current contract with Kentucky Baptist Homes for Children, the Annual Facility Review completed by the Children's Review Program, and a spreadsheet showing payments to KBHC under the current contract. Reiterating that Mr. Lemme must obtain the information identified in his fourth request, concerning children placed at the Spring Meadows facility by the Justice Cabinet, from the Department of Juvenile Justice, Mr. Klein focused on his fifth request for:
Any and all reports, memos or other notations of "runaways" from Spring Meadows Residential Facilities, including if the "runaways" were found and if the "runaways" committed any public offense during that time. Please also include whether the youth was returned to Spring Meadows and if not why not.
Upon closer review, the Cabinet concluded that records responsive to this request were excluded from public inspection by operation of KRS 620.050(5). Mr. Klein explained:
When a child placed by the Cabinet runs away from a private facility such as Spring Meadows, the facility is required to report the incident to the child's social worker within twenty-four hours. Those reports, like the remainder of each child's file, are considered confidential in accordance with KRS 620.050(5) . . . .
In these cases, the Cabinet would not have any records regarding the runaway children but for the fact that they were abused, neglected, or dependent. Thus, the reports, memos or other notations requested by Mr. Lemme are considered to be "information obtained by the cabinet . . . as a result of an investigation or assessment made pursuant to [KRS Chapter 620]". Mr. Lemme has not alleged that he meets any of the classes of persons authorized by statute to receive the information requested. Therefore, the records are exempt from disclosure under the Open Records Act in accordance with KRS 61.878(1)(l).
Noting that KRS 620.050(5) operates as a blanket prohibition on disclosure of any information obtained by the Cabinet, Mr. Klein rejected Mr. Lemme's suggestion that the Cabinet release the files after redacting the child's identity. Similarly, he rejected the suggestion that the Cabinet generate a summary document containing the information Mr. Lemme seeks, reasoning that an agency has no duty to create a record in order to satisfy an open records request and citing 97-ORD-56. While this office cannot approve the Cabinet's practices relative to procedural compliance with the Open Records Act, we find no substantive error in its disposition of Mr. Lemme's request.
This is by no means the first occasion on which we have been asked to determine if a public agency complied with the provisions of the Open Records Act when, as a matter of practice, the agency issued a form letter on the third day after receipt of an open records request in lieu of a definitive response. In each of these cases, we have disapproved the practice, especially when the agency establishes an arbitrary turnaround date not specifically geared to the particular request or otherwise consistent with the requirement, codified at KRS 61.872(5), that it state the "earliest date on which the public record will be available for inspection. " 4 (Emphasis added.) For example, in 98-ORD-175 we noted that the Transportation Cabinet, whose offices are located across the state and whose records are widely dispersed, had established a practice whereby delays in disclosure of public records had "become the rule rather than the exception." We observed:
Our review of [previous] decisions suggests that this has become the Cabinet's standard response to open records requests. Given the efficiency and immediacy in communication which the age of automation has facilitated, we see no reason why the Cabinet should not, as a general rule, respond to records requests within three business days as other agencies do by releasing records or denying access to records on the basis of one or more of the exceptions codified at KRS 61.878(1)(a) and (l). Certainly, a final decision within the three day period of limitation which KRS 61.880(1) contemplates will serve to eliminate the kind of confusion which the Cabinet's ostensibly inconsistent September 18 and September 28 responses created in the appeal before us. 5
98-ORD-175, p. 4, 5.
These observations were prompted by the statutory mandate found at KRS 61.880. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Open Records Act, respond in writing to the requesting party within three business days of receipt, and either release the requested records or state the statutory basis for denying access, briefly explaining how the statute cited applies to the records withheld. Analyzing this provision, in 93-ORD-109, we commented:
Nothing in the statute permits an agency to postpone or delay its written response pending review by the "appropriate office." In our view, a statement that "the appropriate office is researching their files and anything not protected by law will be made available" does not satisfy the agency's obligation . . . . The burden on the public agency to respond in three business days may, on occasion, be an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) 6 and (5). 7 Unless the person to whom the request is directed does not have custody and control of the record, or the record is in active use, in storage, or not available, the agency is required to notify the requester of its decision within three business days.
93-ORD-109, p. 3; see also 99-ORD-13.
We are not unmindful of the enormous open records demands placed on public agencies such as the Cabinet for Health and Family Services, as well as the acute staffing problem agencies such as the Cabinet face. Moreover, we applaud any open records practice or policy which promotes both efficiency and strict compliance with the letter of the Open Records Law. Unfortunately, and as Mr. Klein acknowledges, the Cabinet's current practice does not succeed in promoting both goals. The Cabinet's initial response to Mr. Lemme violated KRS 61.880(1) because it failed to state, with particular reference to his request, the cause for delay in fulfilling that request and the earliest date on which the records identified in that request would be available. 8 In addition, although the initial response referenced HIPAA, and privacy generally, the response did not cite the statutory exemption, KRS 61.878(1)(k), 9 engrafting the privacy provisions of HIPAA into the Open Records Act, or KRS 61.878(1)(a), extending protection to "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " We encourage the Cabinet to expedite implementation of the modifications to its current practices, which Mr. Klein references in his May 5 letter to this office, with the goal of individualizing its response to the particular request.
Turning to the substantive issues in this appeal, we affirm the Cabinet's ultimate disposition of Mr. Lemme's request. We concur with the Cabinet in its view that the only records in dispute, namely reports relating to runaways from Spring Meadows Residential Facilities, are shielded from disclosure by operation of KRS 620.050(5), the broad confidentiality provisions of which are co-opted into the Open Records Law by KRS 61.878(1)(l). 10 In support, we attach hereto and incorporate by reference 03-ORD-070, establishing the Cabinet's right to withhold all information acquired as a result of an investigation conducted pursuant to KRS 620.050 unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 620.050(5)(a) through (h). As Mr. Klein correctly notes, Mr. Lemme has not demonstrated that he falls within one of the statutorily recognized exceptions or that his particular situation warrants the release of the requested records. Further, the Cabinet's actions were entirely consistent with KRS 61.872(4), relative to notification to the requester of the name and location of the custodian of any records not maintained by the agency to which the request is directed, and the general proposition, supported by the clear language of KRS 61.870(2) as construed in, for example, 02-ORD-112, that the Open Records Act does not require creation of records but instead governs access to existing public records. We therefore affirm the Cabinet's partial denial of Mr. Lemme's request.
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.
Distributed to:
Norman R. Lemme833 Twelve Oaks DriveMt. Washington, KY 40047
LaShana HarrisCabinet for Health and Family ServicesRecords Management Section275 East Main Street, 3E-GFrankfort, KY 40621
Jon KleinAssistant CounselCabinet for Health & Family Services275 East Main Street, 4W-CFrankfort, KY 40621
Footnotes
Footnotes
1 May 5, 2004 letter from Jon R Klein, Assistant Counsel, to Amye L. Bensenhaver, Assistant Attorney General.
2 We note that Mr. Lemme did not, in general, request records relating to an individual, but instead requested records relating to two facilities.
3 Mr. Klein explained that the form letter "was devised as an efficient way to comply with the statutory three-day response requirement," and described the staffing exigencies and open records demands that prompted it, but indicated that the agency intends to modify the letter to address this issue.
4 KRS 61.872(5) provides in full:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
5 In its initial response, the Transportation Cabinet agreed to disclose "anything not protected under the Open Records Law. " The Transportation Cabinet subsequently issued a blanket denial of the request. This was the "inconsisten[cy]" to which we referred to in 98-ORD-175, and which is a recurring problem. In the appeal before us, the Cabinet for Health and Family Services "agreed to provide [Mr. Lemme with] all . . . records no later than May 17, 2004." Upon closer review of the requested records, the Cabinet modified its position on the basis of KRS 620.050(5) and withheld records it had previously agreed to release. See also, 98-ORD-81 (Cabinet for Families and Children held to have improperly reneged on agreement to release records relating to closed investigation, and requested by the employee whose grievance prompted the investigation, because no statutory basis existed for the latter denial). The better course, in our view, is to conduct a sufficiently thorough review of incoming requests to insure a timely and proper response and one from which the agency is not compelled to later deviate.
6 KRS 61.872(4) thus provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
7 See note 4, above, for full text.
8 With reference to the Cabinet's assertion that failure to tender the requisite HIPAA compliant documentation within 10 days will result in the requester's file being closed, we find no legal support in the Open Records Act for this practice, and urge the Cabinet to reconsider its position.
9 KRS 61.878(1)(k) authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation;
10 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.