Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Doug Goodman appeals Hardin Memorial Hospital's denial of his June 17, 2013, request "for a copy of all employed physicians' contracts." Although the hospital agreed to permit Mr. Goodman to inspect the contracts "on June 27, 2013, from 1:30-3:00," Mr. Goodman cancelled the appointment. In his letter of appeal, he states that he has been told that the hospital does "not have to release a copy to us 1 or the public."
The hospital responds that KRS 61.872 "refers only to a right of inspection, rather than a right to a copy of records," asserting that the required mailing of copies to a requester whose residence or principal place of business is outside the county is intended "to alleviate requiring someone to travel outside of their county to inspect records." Citing KRS 61.872(3)(b) (emphasis in original). Because Mr. Goodman does not live or work outside of Hardin County, the hospital concludes, he is not "entitled to obtain copies that could potentially be distributed to others."
The right to conduct onsite inspection of public records carries with it the right to obtain copies. Thus, KRS 61.874(1) provides that "[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all records not exempted by the terms of KRS 61.878." See 10-ORD-224 (citing OAG 89-40, 02-ORD-168, 04-ORD-154, and 10-ORD-154 and recognizing that "when a public agency provides a requester with an opportunity to inspect records, the 'requester enjoys a corollary right to obtain copies' of the record"). KRS 61.872(3)(a), cited by the hospital to supports its position that the Open Records Act provides a right of inspection but not a right to obtain copies, was enacted in 1992 to eliminate the necessity of onsite inspection, prior to obtaining copies, for requesters residing or having their principal place of business outside the county where the records are located if the requester precisely describes the record and the record is readily available within the public agency. It did not eliminate the pre-existing right to obtain copies of nonexempt public records.
As a resident of Hardin County, Mr. Goodman can be required to inspect physicians' contracts before obtaining copies. KRS 61.872(3)(b). He cannot, however, be denied copies of the contracts after inspection. In supplemental correspondence addressed to this office, the hospital states that "to protect itself in the marketplace," it must place "legal restrictions on the disclosure of sensitive documents." The hospital does not identify a statute establishing legal restrictions or authorizing it to permit inspection but deny copies of physicians' contracts. Its response contains no statement of one or more exceptions found at KRS 61.878(1)(a) through (n) authorizing it to treat the contracts as exempt. Mr. Goodman is entitled to inspect and obtain copies of the "employed physicians' contracts" he requested. The Hardin Memorial Hospital's refusal to provide him with copies, after inspection, violated KRS 61.874(1).
Either party may appeal this decision 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:
Doug GoodmanDennis JohnsonJennifer B. Oldham
Footnotes
Footnotes
1 Mr. Goodman is a Hardin County Fiscal Court magistrate. This fact is relevant to an analysis under KRS 61.878(5) which promotes agency sharing of statutorily protected information "when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function." The physicians' contracts at issue in this appeal are not statutorily protected.