Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the McCreary County Ambulance Service violated the procedural requirements of the Open Records Act by failing to respond to Art Anderson's January 3, 2012, request for "all dispatch runs regarding Linda Sue Selvidge . . . between January 1, 2005, and December 31, 2011, including the date and time of dispatch, if she was or was not transported, and billing records presented to Medicare or Medicare [sic]." Further, we find that the McCreary County Ambulance Service violated the substantive requirements of the Open Records Act by belatedly asserting that "[i]f Mr. Anderson is requesting medical records, these are confidential and not subject to disclosure as required by KRS 61.878." Although the records identified in Mr. Anderson's request are shielded from disclosure by KRS 311A.190(5), incorporated into the Open Records Act by KRS 61.878(1)(1), the Ambulance Service did not meet its statutorily assigned burden of proof by characterizing them as "medical records . . . not subject to disclosure as required by KRS 61.878."
Mr. Anderson's January 3 request went unanswered, prompting him to initiate this open records appeal. In correspondence directed to this office after he filed his appeal, McCreary County Attorney Michelle Wilson Jones responded on behalf of the Ambulance Service. She advised:
I have received your Notification to Agency of Receipt of Open Records Appeal from Art Anderson. Please be advised I was unaware that Mr. Anderson submitted an Open Records Request to the McCreary County Ambulance Service until now.
If Mr. Anderson is requesting medical records, these are confidential and not subject to disclosure as required by KRS 61.878.
She did not elaborate.
The McCreary County Ambulance Service violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Mr. Anderson's request. Its failure to notify the county attorney that it had received an open records request, clearly identified as such, did not mitigate the violation. KRS 61.880(1) provides:
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.
The Ambulance Service's belated response to his request, submitted to this office by the McCreary County Attorney after she received notification of Mr. Anderson's appeal, was also deficient insofar as it did not "include a statement of the specific exception authorizing the withholding of the records and a brief explanation of how the exception applies to the records withheld. " In construing this provision, Kentucky's Court of Appeals has declared:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The court expressly criticized "limited and perfunctory response[s]" to open records requests. The Ambulance Service's response was perfunctory at best.
In belatedly denying Mr. Anderson's request, the Ambulance Service asserted that "if" he wished to obtain "medical records, these are confidential. " While it is true that "few records are accorded greater protection than patient medical records," 03-ORD-023, p. 6, ambulance service dispatch records do not fall neatly within this protected records class. They do, however, fall neatly within the class of records to which the General Assembly has extended statutory protection at KRS 311A.190(5). That statute provides:
Ambulance provider and medical first response provider run report forms and the information transmitted electronically to the [Kentucky Board of Emergency Medical Services] shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form. Only the patient or the patient's parent or legal guardian if the patient is a minor, or the patient's legal guardian or person with proper power of attorney if the patient is under legal disability as being incompetent or mentally ill, or a court of competent jurisdiction may authorize the release of information on a patient's run report form or the inspection or copying of the run report form. Any authorization for the release of information or for inspection or copying of a run report form shall be in writing.
Mr. Anderson does not identify himself as Linda Sue Selvidge's parent or legal guardian or indicate that he has "proper power of attorney." Accordingly, he cannot obtain the requested records insofar as they are expressly excluded from public inspection by KRS 311A.190(5), incorporated into the Open Records Act by KRS 61.878(1)(l). 1
The requested run reports do not contain billing information. 2 That information in the custody of a private ambulance provider is shielded from disclosure by the federal Health Insurance Portability and Accountability Act, 45 C.F.R. Part 160 and Subparts A and E of Part 164, incorporated into the Open Records Act by KRS 61.878(1)(k). 3 As a public agency governed by the Open Records Act, the Ambulance Service "must disclose health information [including billing information] under the 'required by law' exception to HIPAA, to the extent that disclosure is required by the Kentucky Open Records Act. " 10-ORD-161, p. 4. In the present context, KRS 61.878(1)(a) is the controlling law in the resolution of the issue of access to Ms. Selvidge's billing information for ambulance service, and that exception to the Open Records Act authorizes nondisclosure of the billing information as a clearly unwarranted invasion of personal privacy. 4 The McCreary County Ambulance Service was authorized to withhold the records to which Mr. Anderson requested access, but not for the reasons stated.
We are fully cognizant of the fact that the McCreary County Ambulance Service is assigned the burden of proof in sustaining its denial of Mr. Anderson's request and that it failed to do so. 5 Where, as here, a specific statute mandating confidentiality of the records in dispute has not been invoked, we will not "compound [the Ambulance Service's] mistake" by declaring its denial improper and, consequently, requiring disclosure of records made confidential by state and federal law. Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996); 05-ORD-005, p. 12. As in Edmondson , we recognize that the Ambulance Service's "error cannot be remedied by committing another." Edmondson at 859. We therefore find that the McCreary County Ambulance Service is foreclosed from honoring Mr. Anderson's 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.
Distributed to:
Art AndersonJimmy BarnettMichele Wilson Jones
Footnotes
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