Request By:
John Wilson
Tricia Salyer
Joe L. Travis
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 Bluegrass Oakwood violated the Open Records Act in the disposition of John Wilson's October 22, 2007 request for all records concerning Jerry Wilson from November 1, 2006, to the present date. For the reasons that follow, we find that Bluegrass Oakwood's partial denial of Mr. Wilson's request constituted a violation of the Act.
In his October 22, 2007, request, Mr. Wilson, who indicated that he was legal guardian for Jerry Wilson, acknowledged receipt of documents the agency had provided him as the result of a September 26, 2007, open records request, but advised that there were many records missing. Renewing his request, he specifically asked for the following records:
Jerry's life book. The cottage log, shift cottage report for all three shifts. Maladaptive behavior records, behavior log. All reports and notes from behavior analysts concerning Jerry. All notes and records from psychiatrist treating Jerry. Record of meetings between Jerry and psychiatrist.
Also include e-mails and faxes generated concerning Jerry. This should include nursing, behavioral, medical, psychiatrist, administration, OT, PT, recreation, diet, speech, and any other persons involved in Jerry's care and treatment.
In short, I want all records concerning Jerry from November 1, 2006, to the present date.
I also requested all Billing generated by bluegrass or representatives on Jerry's behalf. I want what you billed. I did not ask for what you received. Bluegrass has to have records of billing. This is how they get paid.
In his November 28, 2007, letter of appeal, Mr. Wilson indicated that he had received no response to his October 22, 2007, request.
After receipt of notification of the appeal, Joe L. Travis, attorney, provided this office with a response, on behalf of Bluegrass Oakwood, to the issues raised in the appeal. In his response, he advised in relevant part:
Mr. Wilson has received all the records we have on Jerry Wayne Wilson. The only exception might be the cottage log which contains merely general information about when the resident woke up, when he ate, etc. This is not provided because it is kept for all residents of the cottage and we cannot release same without redacting every entry other than those for the resident.
Also, we cannot provide the billing that was requested. The Medicaid billing is done electronically and therefore cannot be copied.
KRS 61.880(1) establishes guidelines for agency response to an open records request. That statute provides, in relevant part:
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.
(Emphasis added.) In addition, KRS 61.880(2)(c) expressly provides:
The burden of proof in sustaining the action shall rest with the agency , and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.) Read together, these provisions mandate an agency response that contains "particular and detailed information" and not a "limited and perfunctory response . . . ."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
To begin, Bluegrass Oakwood's failure to respond in writing to Mr. Wilson's October 22, 2007, request within three business days of its receipt constituted a procedural violation of KRS 61.880(1). Moreover, because Bluegrass Oakwood is statutorily assigned the burden of proof, it must not only cite the relevant exemption or exemptions authorizing nondisclosure, but must explain the application of the exemption or exemptions to the records withheld.
In its response, Bluegrass Oakwood stated it could not release the requested cottage log because it is kept for all residents of the cottage and would require redaction of every entry other than those for the resident at issue. The response failed to cite the relevant exception that authorized withholding access to the requested cottage log and a brief explanation of how that exception applied to the record withheld, as required by KRS 61.880(1). Accordingly, having failed to meet its burden of proof for withholding the cottage log, it should be made available for Mr. Wilson's inspection.
Moreover, KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
This provision applies to all public records in which exempt and nonexempt information is commingled. If such redaction would constitute an unreasonable burden, the agency must sustain this fact with clear and convincing evidence that disclosure of a redacted copy of the record would impose an unreasonable burden within the contemplation of KRS 61.872(6). See, 03-ORD-004. Bluegrass Oakwood has not met this burden. If Bluegrass Oakwood elects to redact portions of the cottage log, pursuant to KRS 61.878(4), it must specifically identify those portions of the cottage log withheld and explain how each portion qualifies for exclusion pursuant to an applicable exception of KRS 61.878(1).
Finally, we address the agency's denial of the request for the billing records on the basis that the Medicaid billing was done electronically and cannot be copied. It is incumbent on a public agency to make all nonexempt portions of public records available for public inspection and copying, regardless of whether they are maintained in electronic or hardcopy format. 95-ORD-43. Having set forth no statutory basis for denying access to the requested billing records, as required by KRS 61.880(1) , they too, should be made available for Mr. Wilson's inspection.
A party aggrieved by this decision may appeal it by initiating an 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.