Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This question having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Jefferson County Metro Government-MetroSafe violated the Open Records Act in denying Courier-Journal reporter Jessie Halliday's request for a copy "of the 911 dispatch tapes to the run at Pleasure Ridge Park High School football practice, 5901 Greenwood Road . . . [that] occurred some time between 6 p.m. and 7 p.m. on August 20 in connection to two players who were in need of medical assistance." It is the decision of this office that 08-ORD-188 is dispositive of the issue on appeal. 1 In 08-ORD-188 this office held that "KRS 61.878(1)(a) is the 'controlling law' in the resolution of the issue of access to the disputed 911 tapes [, relating to fatal injuries sustained by a child on an athletic field during a practice,] under the 'required by law' exception to the HIPAA Privacy Rule," and that KRS 61.878(1)(a) only authorized the nondisclosure of "discussions of the child's injuries and medical condition . . . ." 08-ORD-188, p. 4 and 7. Under this line of reasoning, we find that Metro Government-MetroSafe improperly withheld those portions of the 911 tape that were unrelated to the young man's medical condition.
Contrary to Metro Government-MetroSafe's apparent belief, this office did not determine that "public agencies that are 'covered entities' must disclose protected health information under the 'required by law' exception to HIPAA" in 08-ORD-188, but instead determined that:
"covered entities" must disclose health information, under the "required by law" exception to HIPAA to the extent that disclosure is required by the Kentucky Open Records Act. "
(Emphasis added.) Applying the privacy exception to the Open Records Act, codified at KRS 61.878(1)(a), to the 911 tapes at issue in 08-ORD-188, the Attorney General concluded that disclosure of "specific details relating to the child's injuries, and efforts to resuscitate him prior to the arrival of the emergency vehicle, . . . would not meaningfully advance the public's right to know how Metro Government-MetroSafe responded," but would instead constitute a clearly unwarranted invasion of the surviving family members' privacy interests.
The public's right to know the contents of the redacted 911 tape at issue in this appeal is even more strongly substantiated in view of the fact that disclosure will enable the public to scrutinize the conduct of the MetroSafe employees in responding to the 911 call as well as the public school employees who were supervising the practice in responding to the medical emergency involving the student athlete. Here, as in 08-ORD-188, we "attempt to strike a reasonable balance between the public's right to insure that Metro Government-MetroSafe," and the public employees supervising the practice, properly discharged their respective duties, "and the privacy rights of the surviving family members of the [young man]" whose medical emergency prompted the 911 call. 08-ORD-188, p. 7.
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.
Footnotes
Footnotes
1 Our records do not reflect that 08-ORD-188 was appealed to the Jefferson Circuit Court per KRS 61.880(5)(a).