March 14, 1994






IN RE: George Warren/Kentucky Board of Medical Licensure






This appeal originated in a request for public records submitted by Mr. George Warren, President of Tri-State Broadcasting Company in Matewan, West Virginia, to the Kentucky Board of Medical Licensure. Those records are identified as "3 video tapes of hearings concerning Dr. Diane Shafer on 11/12/93, 12/21/93, 12/22/93." In addition, Mr. Warren requested copies of "the open record file of Dr. John Adler and Dr. Fahmy."


On behalf of the Kentucky Board of Medical Licensure, Mr. Wes Faulkner, General Counsel, denied Mr. Warren's request, advising him that pursuant to KRS 61.878(1)(f) and OAG 76-375 the Board would be unable to honor his request. He did not offer any further explanation for his position.


Unable to resolve this appeal on the facts presented, on February 24, 1994, this Office requested additional information from the Board to substantiate its position. Pursuant to KRS 61.880(2), we asked that the Board advise us how the cited exception applies to the records withheld. We noted that KRS 61.878(1)(f) was recodified in July, 1992, and now appears as KRS 61.878(1)(g). We asked whether this was the provision that Mr. Faulkner intended to invoke. Thus, we afforded the Board an opportunity to elaborate on its position generally, and to explain specifically how release of the records would "harm the agency." In view of the time constraints imposed on the Attorney General in issuing a decision under the Act, we requested that the Board respond to our inquiry within five business days. We received no response to this request.


We are asked to determine if the Kentucky Board of Medical Licensure violated the Open Records Act in denying Mr. Warren's request. For the reasons set forth below, we conclude that although the Board may have properly withheld the disputed records under KRS 61.878(1)(g), it failed to meet its burden of proof in denying the request, and must release the three video tapes and the nonexempt portions of Dr. Adler and Dr. Fahmy's files.


KRS 61.880(2) and KRS 61.882(3) place the burden of proof in sustaining agency action in an open records appeal on the public agency. This Office has consistently recognized that an agency fails to satisfy its burden of proof when it merely invokes an exception without providing an adequate explanation of how it applies to the record withheld. See, e.g., 92-ORD-1020; 93-ORD-43; 93-ORD-86; 93-ORD-110. In the present appeal, the Board not only failed to offer any explanation of how an exception applies, it cited the wrong exception. KRS 61.878(1)(f) authorizes the nondisclosure of:


Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination before the exam is given or if it is to be given again[.]


We fail to see how this exception has any application to the records withheld.


Denial of an open records request must be articulated in terms of the requirements of the statute. The custodian of records thus has the burden of justifying the withholding of a record by reference to the appropriate exception, and by briefly explaining how it applies to the record withheld. KRS 61.878(1)(g) permits an agency to withhold:


Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identify of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.]


Denial under this exception must be sustained by proof that the agency will be harmed "by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication."


Although the Board of Medical Licensure was afforded two opportunities to satisfy its burden of proof, first in its initial denial of Mr. Warren's request, and second in its response to our request under KRS 61.880(2), it failed to do so. We are left with no alternative but to order the release of the disputed records. This is not to say that the Board could not properly withhold the records upon sufficient proof. Our decision is limited to the facts presented in this appeal, and turns on the Board's failure to sustain its burden of proof.


The Kentucky Board of Medical Licensure may challenge this decision by initiating action in the appropriate circuit court. 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.














Distributed to:


Hon. Wes Faulkner

Kentucky Board of Medical Licensure

Hurstbourne Office Park

310 Whittington Parkway, Ste. 1B

Louisville, KY 40222


Mr. George Warren, President

Tri-State Broadcasting Company


Box 68

Matewan, WV 25678