Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Child Watch Children's Advocacy Center, Inc. (Child Watch) violated the Open Records Act in denying Cecil Dale Pate's request for certain records maintained by Child Watch. For the reasons that follow, we conclude that the agency properly denied the request for copies of peer review records and, thus, did not violate the Act.
By letter dated July 7, 2005, Mr. Pate submitted an open records request to Child Watch, requesting:
On March 2nd, 2005 you wrote the Commonwealth Attorney, Timothy J. Kaltenbach. <see attached letter>
In reference to the paragraph above I'm requesting any documentation, filed/memorandum which reflects the names, addresses or phone numbers of all physicians who perform peer reviews from your office who are in Lexington/McCracken, Kentucky.
In his letter of appeal, dated July 19, 2005, Mr. Pate stated that as of the date of his letter, he had not received a response from Child Watch.
After receipt of notification of the appeal and a copy of Mr. Pate's letter of appeal, C. Thomas Miller, attorney for the Child Watch, provided this office with a response to the issues raised in the appeal. In his response, Mr. Miller advised:
Mr. Pate's appeal is based on the alleged lack of response to his request for records. The enclosed documents indicate that Mr. Pate mailed his request on July 7, 2005, and was received by Child Watch on July 11, 2005. Child Watch mailed a response to the request on July 14, 2005. See Affidavit of Sandra Fellows, enclosed herewith.
Thus, Child Watch did serve a timely response to the request. As stated, the denial was based on the fact that Mr. Pate requested peer review records.
After receipt of Mr. Miller's response and in order to obtain additional information and documentation relating to the issues raised in this appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, we requested that Mr. Miller provide this office with additional information to assist our determination as to whether Child Watch is a "public agency, " as defined in KRS 61.870(1) and whether Child Watch is a "health services organization subject to licensing under the certificate of need and licensing provisions of KRS 216B," as set forth under KRS 311.377(1) and, thus, qualifies for the confidentiality of peer review provisions of KRS 311.377(2).
In response to our questions, Mr. Miller advised:
1. Child Watch does derive at least twenty-five percent of its funds expended in the Commonwealth in Kentucky from state and local authority funds, and therefore falls subject to the Open Records Act under KRS 61.870(1)(h).
2. However, Child Watch contends that the requested records are excepted from disclosure under KRS 61.878(1)(l), as records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3. Specifically, Child Watch does contend that it qualifies for the Peer Review privilege under KRS 311.377, within the broad definition of "health services organization" set forth therein. Although Child Watch is not subject to certificate of need or licensing requirements under KRS 216B, it is a "specialized children's service clinic" enrolled with the Kentucky Medicaid Program under the authority of KRS 194A et seq., which provides child sexual abuse medical examinations and mental health services through licensed professionals. See 907 KAR 3:160 et seq. Section 2(a)5 of these implementing regulations requires the examining physician to make his/her reports available for peer review, but also requires him to maintain the confidentiality of the reports. Section 6 of these regulations prohibits the clinic from disclosing such records without the medicaid recipient's consent, other than disclosing to physicians participating in the peer review of a specific case, and certainly duly authorized officials. Section 6 in turn references KRS 620.050, which requires that records used or developed by a children's advocacy center in providing services be kept confidential. Reading these statutes and regulations together, Child Watch's position is that the General Assembly intended that the results of peer reviews of child abuse medical examinations be kept confidential, and are therefore excepted from disclosure to Mr. Pate under authority of KRS 61.878(1)(h).
A "public agency" as defined at KRS 61.870(1), and, in particular, KRS 61.870(1)(h), which defines public agency as "[a]ny body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds."
In his response to this office's request for additional information, Mr. Miller acknowledged that Child Watch does derive at least twenty-five percent of its funds expended in the Commonwealth of Kentucky from state and local authority funds, and therefore falls subject to the Open Records Act under KRS 61.870(1)(h). Based upon this acknowledgement, we find Child Watch is a "public agency, " as defined under KRS 61.870(1)(h) and subject to the provisions of the Open Records Act.
Next, we address whether the requested peer review records are excepted from disclosure under KRS 311.377, in tandem with KRS 61.878(1)(l) . 1 For the reasons that follow, we conclude they are and, thus, Child Watch's denial of Mr. Pate's request for them did not constitute a violation of the Open Records Act.
KRS 311.377 provides, in relevant part:
(1) Any person who applies for, or is granted staff privileges . . . by any health services organization . . . shall be deemed to have waived as a condition of such application or grant, any claim for damages for any good faith action taken by any person who is a member, participant in or employees of or who furnishes information, professional counsel, or services to any . . . or other entity which is duly constituted by any licensed hospital, licensed hospice, licensed home health agency, health insurer, health maintenance organization, health services corporation, organized medical staff, medical society . . . or governmental or quasigovernmental agency when such entity is performing the designated function of review of credentials or retrospective review and evaluation of the competency of professional acts or conduct of other health care personnel. . . .
(2) At all times in performing a designated professional review function, the proceedings, records, opinions, conclusions, and recommendations of any committee, board, commission, medical staff, professional standards review organization, or other entity, as referred to in subsection (1) of this section shall be confidential and privileged and shall not be subject to discovery, subpoena, or introduction into evidence, in any civil action in any court or in any administrative proceeding before any board, body, or committee, whether federal, state, county, or city, except as specifically provided with regard to the board in KRS 311.605(2). This subsection shall not apply to any proceedings or matters governed exclusively by federal law or federal regulation.
As explained by Mr. Miller in his response to this office's questions, Child Watch provides child sexual abuse medical examinations and mental health services through licensed professionals and is a "specialized children's service clinic" enrolled with the Kentucky Medicaid Program under authority of KRS 194A et seq.
Under the administrative regulations which establish the requirements for services provided by a specialized children's services clinic, 907 KAR 3:160, Section 2(2)(a)5 provides that a licensed physician who is employed by the clinic "[s]hall make reports resulting from child sexual abuse medical examinations available for peer review and maintain confidentiality in accordance with Section 6 of this administrative regulation. "
Moreover, as noted by Mr. Miller, 907 KAR 3:160, Section 6 prohibits the clinic from disclosing clinic records without the recipient's consent, other than disclosing to physicians participating in the peer review of a specific case, and certainly duly authorized officials. Section 6 in turn references KRS 620.050, which requires that records used or developed by a children's advocacy center in providing services be kept confidential.
Accordingly, we conclude Child Watch, as a specialized children's service clinic, properly denied Mr. Pate's request for peer review records and records developed by it in providing its services in this instance under authority of KRS 61.878(1)(l), in tandem with KRS 311.377; KRS 194A et seq.; 907 KAR 3:160; and KRS 620.050. See, also, 05-ORD-171 (medical peer review records made confidential from disclosure because of KRS 311.177(2) and KRS 61.878(1)(l), were not subject to disclosure under the Open Records Act.
Finally, addressing the procedural question, records provided by Child Watch indicate that Mr. Pate's request was received on July 11, 2005 and that it mailed its response on July 14, 2005. This was consistent with the requirement of KRS 61.880(1) that a response to an open records request be provided within three business days after its receipt. We find no violation in this regard.
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.
Cecil Dale Pate, # 156561Dorm-5-LL-Bed # 36Northpoint Training CenterP.O. Box 479Burgin, KY 40310-0479
Sandra FellowsExecutive DirectorChild Watch Children's Advocacy Center Inc.P.O. Box 1262Paducah, KY 42002-1262
C. Thomas Miller300 BroadwayPost Office Box 995Paducah, KY 42002-0995
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.