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 the Department of Public Advocacy, Protection and Advocacy Division (P&A) violated the Open Records Act in denying John Wilson's October 4, 2006, request for a copy of "all investigations concerning Bluegrass/Oakwood located at 2441 south highway 27 in Somerset, KY" and "all reports of neglect, abuse, and failure to provide medical services and or personal care." The request covered the time period from November 1, 2006, to the present date.
By letter dated October 9, 2007, Heidi Schissler Lanham, Legal Director, Protection and Advocacy Division, denied Mr. Wilson's request, advising:
Regarding investigations, we do not have any documents responsive to your request covering that time period. Concerning reports, we receive incident reports from Oakwood and other state agencies about clients of Protection and Advocacy who reside at Oakwood pursuant to either an attorney-client relationship, P&A's federal enabling statutes and regulations or an Interagency Agreement with the Cabinet for Health and Family Services. The attorney-client privilege, federal law and the Agreement all require us to maintain the confidentiality of those records.
Kentucky Supreme Court Rule (SCR) 3.130(1.6) prevents us, in general, from disclosing information relating to a client. Federal law mandates that we "[k]eep confidential all information contained in a client's record" and that before releasing information we obtain consent from the client. (45 C.F.R. § 1386.22(e)(1) and 45 C.F.R. § 1386(.21)(i)). The Agreement provides "P&A agrees to maintain the confidentiality of records and information obtained from the records." Consequently, the records you have requested are excluded from the application of Kentucky's Open Records Law. See KRS 61.878(k) and (l).
On October 9, 2007, Mr. Wilson initiated the instant appeal. In his letter he stated, in part, that it was his understanding that Bluegrass/Oakwood was required to report incidents to the Department of Public Advocacy, that he was not requesting personal information of the clients, just the reports of neglect, abuse, and failure to provide medical services and personal care that could be legally released, and that if DPA could withhold reports there was no way to verify if Bluegrass/Oakwood was reporting as required and DPA was doing its job.
After receipt of notification of the appeal, Ms. Lanham provided this office with a response to the issues raised in the appeal. In her response, she advised that Bluegrass/Oakwood is an Intermediate Care Facility for persons with Mental Retardation/Developmental Disabilities (ICF-MR-DD), and is a state-owned facility, operated by the Bluegrass Regional Mental Health and Mental Retardation Board under contract with the Cabinet for Health and Family Services. She further explained:
Kentucky Protection and Advocacy (P&A) is an independent state agency which is administratively part of DPA. KRS 31.010. It is the federally mandated protection and advocacy agency designated by state statute to pursue "legal, administrative, and other appropriate remedies to insure the protection of the rights of persons with disabilities. " KRS 31.010(2) & KRS 31.030(9). In that role Mr. Wilson's request was deemed a request of P&A rather than DPA.
The only reports of incidents of alleged or suspected abuse that Bluegrass/Oakwood is "required" to report are those involving clients of P&A. This is because P&A has an Interagency Agreement with the Kentucky Department for Mental Health and Mental Retardation Services (DMHMR), a department of the Cabinet. That agreement states, "The Cabinet shall assure that directors of Cabinet-operated facilities report [a]ll incidents of alleged or suspected abuse or neglect to both P&A and the organization designated by state law, regulation or policy to conduct an abuse investigation." (See attached Interagency Agreement at numerical paragraph 4.a.)
Ms. Lanham stated that the requested reports were exempt from disclosure under authority of KRS [6]1.878(1)(k) and (l), stating that Federal Law requires P&A to "keep confidential all information contained in a client's record . . . ." 45 CFR § 1386.22(e)(1) , which would include reports of suspected or alleged abuse of a client. She further argued that because P&A provides legally-based advocacy to persons with disabilities, any client of P&A enjoys the protections of the attorney-client relationship, stating that Kentucky Supreme Court Rule 3.130(1.6) requires an attorney to keep client information confidential and to "not reveal information relating to representation of a client, unless the client consents after consultation." She cited Kentucky Revised Statute 447.154 as giving the Supreme Court authority to make those rules. Finally, Ms. Lanham asserted that the Interagency Agreement said, "P&A agrees to maintain the confidentiality of records and information obtained from the records and to use such information as necessary to fulfill the duties of P&A under law, citing Interagency Agreement, P12b.
Addressing first the response to Mr. Wilson's request for copies of all investigations concerning Bluegrass/Oakwood from November 1, 2006, to the date of his request, P&A responded that it had no documents responsive to the request within that time period. The agency's response, which affirmatively advised him that it did not have records responsive to this request during the relevant time period, did not constitute a violation of the Open Records Act. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Thus, there was no violation in this regard.
We next address whether the agency properly denied the request for "all reports of neglect, abuse, and failure to provide medical services and or personal care," that Bluegrass/Oakwood had reported. In denying the request the agency argued that the requested reports were exempt from disclosure under authority of KRS 61.878(1)(k) and 45 CFR § 1386.22(e)(1) which requires P&A to keep confidential all information contained in a client's record, which would include reports of suspected or alleged abuse of a client.
KRS 61.878(1)(k) requires public agencies to withhold: "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. "
45 CFR § 1386.22(e)(1) provides:
(e) The client's record is the property of the Protection and Advocacy System which must protect it from loss, damage, tampering, or use by unauthorized individuals. The Protection and Advocacy System must:
(1) Keep confidential all information contained in a client's records, which includes, but is not limited to, information contained in an automated data bank. This regulation does not limit access by parents or legal guardians of minors unless prohibited by State or Federal law, court order or the rules of attorney-client privilege.
The terms of 45 CFR § 1386.22(e)(1) are unambiguous: 45 CFR § 1386.22(e)(1) require P&A to "keep confidential all information contained in a client's record . . . ." 45 CFR § 1386.22(e)(1), which would include reports of suspected or alleged abuse of a client. This is not a situation where the P&A has any discretion as it is prohibited by the federal regulation from releasing materials and information contained in a client's record. As noted above, 45 CFR § 1386.22(e)(1) provides that "[t]his regulation does not limit access by parents or legal guardians of minors unless prohibited by State or Federal law, court order or the rules of attorney-client privilege." Mr. Wilson does not purport to fall within this excepted class. Accordingly, we conclude the Protection and Advocacy Division properly denied request for reports as the agency is prohibited by the federal regulation from releasing materials and information contained in a client's record.
Because the foregoing is dispositive of this appeal, we need not address other bases relied upon by P&A in support of its denial of the 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.