Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Northern Kentucky Oral & Maxillofacial Surgery Association violated the Kentucky Open Records Act by failing to respond upon receipt of the request submitted by Douglas W. Runyon for copies of "any & all documents relating to medical care provided from August 19, 2003 to February 12, 2004" to him. In a letter received by this office on December 7, 2005, Mr. Runyon initiated the present appeal challenging the presumed denial of his request by the Association. Because the Association is not a public agency within the meaning of KRS 61.870(1), the Association is not subject to the provisions of the Open Records Act; nor do the records requested qualify as public records under KRS 61.870(2). However, Mr. Runyon is entitled to receive one free copy of his medical record pursuant to KRS 422.317(1).
As consistently recognized by the Attorney General, a private entity such as the Association does not come within the purview of the Open Records Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." KRS 61.870(1)(h); 02-ORD-41, p. 1; 03-ORD-236; 97-ORD-114; 96-ORD-197; 96-ORD-15. For purposes of the Open Records Act, "public agency" is defined as:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policymaking board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a),(b),(c),(d),(e),(f),(g),(h),(j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission committee, subcommittee ad hoc committee, advisory committee, council or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a),(b),(c),(d),(e),(f),(g),(h),(i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a),(b),(c),(d),(e),(f),(g),(h),(i), or (j) of this subsection[.]
KRS 61.870(1).
Although the Association opted not to respond upon receipt of the notification issued by this office on December 12, 2005, the "Detailed Information For Company [the Association]" available on the website maintained by the Kentucky Secretary of State indicates that none of the funds expended by the Association in the Commonwealth are derived from state or local authorities as required to be a "public agency. " More specifically, the Association is characterized as a "KPS-Kentucky Professional Services Corp" that was incorporated on August 18, 1994, for profit, with 1,000 "Authorized Shares" being issued; the Association is listed as having "Active" status and being in "Good" standing. Noticeably absent from the record is any evidence to suggest the Association otherwise qualifies as a "public agency. " That being the case, none of the records maintained by the Association can properly be characterized as "public records" within the meaning of KRS 61.870(2). 1 In sum, the Association, a private entity, is "not obligated to comply with the provisions of the Open Records Act, " which necessarily means the Association did not violate the Act in failing to respond upon receipt of Mr. Runyon's request. 96-ORD-197, p. 1.
In light of this determination, the Attorney General is not empowered to require the Association to honor Mr. Runyon's request. However, a hospital or health care provider such as the Association "shall provide, without charge to the patient, a copy of the patient's medical record" upon a patient's written request according to KRS 422.317(1), a copy of which is attached for the parties' reference. If the Association refuses to provide Mr. Runyon with a one free copy of his medical record, Mr. Runyon may contact the Division of Health Care Facilities and Services, Office of the Inspector General, Kentucky Cabinet for Health and Family Services, Frankfort, KY 40601; the telephone number is (502)564-2800. In closing, this office encourages Mr. Runyon and the Association to communicate with each other directly so as to resolve this issue in a manner that is satisfactory to both parties.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.80(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.
Douglas W. Runyon, # 173076Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472
Lori SorrellOffice ManagerNorthern Kentucky Oral & Maxillofacial Surgery Association20 Medical Village Drive, Suite 196Edgewood, KY 41017
Footnotes
Footnotes
1 Pursuant to KRS 61.870(2):
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority [.]