Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Southern Health Partners, Inc. ("SHP"), violated the Open Records Act in the disposition of attorney Elliott C. Miller's July 17, 2015, request for copies of various records on behalf of his client, Ivan Curtis Watts, incarcerated in the Madison County Detention Center. For the reasons that follow, we cannot conclude that a violation of the Act occurred.
Mr. Miller's request to SHP, accompanied by a medical records authorization from Mr. Watts, requested copies of the following:
1. Doctor call lists dated from November 1, 2014 to present;
2. Medical staffing sheets for doctors and nurses from April 1, 2015 to present;
3. Written communication relating to the care and/or condition of Mr. Watts at the Detention Center maintained by Southern Health Partners, or directed to or from Southern Health Partners' employees or Detention Center employees, including, but not limited to, correspondence, e-mails, memoranda, handwritten notes or typed notes; and
4. Medical records of Mr. Watts from June 1, 2015 to the present, including, but not limited to, medication administration records, sick call forms, urinalysis reports and physician or nurse care records.
Although SHP sent a copy of Mr. Watts' medical chart, the other records requested were not forthcoming. Mr. Miller initiated an open records appeal with this office on August 11, 2015. He argues that SHP is a "public agency" within the meaning of KRS 61.870(1)(h) due to the funding it derives from state or local government entities.
On August 17, 2015, attorney Robert J. Shilts responded to the appeal on behalf of SHP. He states:
SHP's contract with Madison County was obtained through a public competitive procurement process and thus is exempt from the Open Records Act. SHP was one of presumably many correctional healthcare providers that submitted bids to the Madison County Jailer in an effort to procure the contract to provide medical services at the Madison County Detention Center. SHP ultimately won the bidding process and its bid was approved by the Madison County Fiscal Court.
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person." As defined in KRS 61.870(2), "public record" means:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
KRS 61.870(1)(h) defines "public agency" as including:
Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection [.]
(Emphasis added.) Although it is possible that SHP receives state or local funds from other contracts that are not competitively bid, the only information in the record is that its contract with Madison County was subjected to a competitive procurement process. Thus, there is no basis in the record upon which to conclude that SHP is a public agency within this definition or any other subsection of KRS 61.870(1). We must therefore conclude that it is not a public agency and accordingly is not required to comply with the provisions of the Open Records Act. 12-ORD-222; 96-ORD-197.
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 proceedings.