TO BE PUBLISHED







97-ORD-88

June 6, 1997

In re: Lisa English Hinkle/Cabinet for Health Services

Open Records Decision

The question presented in this appeal is whether the Cabinet for Health Services properly relied on KRS 61.872(6), KRS 61.878(1)(a), KRS 61.878(1)(k), KRS 61.878(1)(l), and various confidentiality provisions found in both state and federal law, in denying Lisa English Hinkle access to public records identified as "licensure inspection reports for all nursing facilities in Kentucky for the years 1995 and 1996." For the reasons which follow, we find that the Cabinet properly denied Ms. Hinkle's request.

On May 1, 1997, Melissa Larmour, a legal assistant in the office of McBrayer, McGinnis, Leslie & Kirkland PLLC requested access to all nursing facility licensure inspection reports for a two year period. Acknowledging that the request implicated voluminous records, Ms. Larmour agreed to "come by [the Cabinet's] office and copy these documents." Shortly thereafter, Rebecca J. Cecil, Director of the Division of Licensing and Regulation, denied Ms. Larmour's request. Relying on KRS 61.872(6), Ms. Cecil explained:

To comply with your request would require that staff disrupt their essential duties and search through records to pull files for at least 421 long term care nursing facilities alone. The requested information would then have to be identified, copied, reviewed for confidentiality (all confidential information would have to be removed from the records) and finally the records would need to be copied once more. This process would require several staff working a number of days on this task alone, leaving essential functions of the office unattended during that time.

This appeal followed.

In her letter of appeal, Ms. Hinkle questioned the volume of records actually implicated by Ms. Larmour's request, noting that "these reports may not consist of a statement of deficiencies." For facilities which are deficiency free, she theorized, "there may be no statement of deficiency or only a one page form denoting no deficiencies." She emphasized that she or her staff would inspect the records during regular business hours, thus reducing the burden on agency employees. Citing a series of opinions of this office construing KRS 61.872(6), she argued that the Cabinet had not met its burden of proving that the request would be unreasonably burdensome.

Through assistant counsel John H. Walker, the Cabinet responded on May 15. Mr. Walker stated that the term licensure inspection report:

is a broad term which is construed by the agency to include not only the report of inspection submitted to the facility upon completion of an investigation, but also the reports of survey completed by the personnel of the Division, many of which surveyed last more than a day and generate reports of multiple pages in length, statements of deficiencies issued to facilities if there are violations of requirements found [sic].

Continuing, he observed:

The records in question are hard copy records, not computerized. Each page of each record of each of the hundreds of facilities involved will have to be reviewed by the open records coordinator of the Division to make certain the page does not contain information not subject to disclosure under the open records law. Both state and federal law often limit access to information within these records.

Rejecting Ms. Hinkle's proposal that she and her staff inspect and copy the records themselves, he noted that "the federal and state requirements of confidentiality and other limitations placed upon access to the records of the Division by statutes and regulations recognized by the open records act make quick work of assembling the records of inspection impossible." Respectfully, he concluded, Ms. Hinkle "has no knowledge of the content of the hundreds of records and thousands of pages to be reviewed, redacted, as necessary, reviewed again, and then copied," before her staff could inspect them.

In a subsequent letter, Mr. Walker identified the specific state and federal confidentiality provisions which are applicable to the inspection reports. He noted that nursing facility inspections may involve allegations of adult or child abuse by staff of a facility. Disclosure of records relating to alleged adult or child abuse is restricted by KRS 209.140 and KRS 620.050. In addition, Mr. Walker observed, the inspection reports contain references to Medicaid recipients the disclosure of which is restricted by 42 CFR 431.300 et seq. Specifically, 42 CFR 431.305 prohibits release of information including the names, economic and social conditions, and medical profile, consisting of diagnosis and past medical history, of Medicaid recipients. Inspection reports relating to nursing facilities which provide mental health services may contain references to the identities and conditions of residents the disclosure of which is prohibited by KRS 210.235. Finally, Mr. Walker noted that residents of nursing home facilities who have evidenced symptoms of sexually transmitted diseases or human immunodeficiency virus are assured confidentiality by KRS 214.420 and KRS 214.625. More generally, he observed, to the extent that the reports make reference to individual residents and their medical records and histories, those records are protected from disclosure by KRS 61.878(1)(a). In support, Mr. Walker furnished this office with a copy of a packet of forms which together comprise the licensure inspection report. Having reviewed this packet, and the applicable open records decisions, we find that the Cabinet for Health Services properly relied on KRS 61.872(6), KRS 61.878(1)(a), KRS 61.878(1)(k), and KRS 61.878(1)(l) in denying Ms. Hinkle's request.

KRS 61.872(6) provides:

If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

In 92-ORD-1261 this office interpreted this provision in considerable depth. At pages 3 - 5 of that decision we observed:

The purpose and intent of the Open Records Act is to permit "the free and open examination of public records." KRS 61.[871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872[(6)] to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.

This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:

Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for inspection.

Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.

Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58, we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the Office of Economic Development" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872[(6)]. That agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt material.

. . .

When a request is made for voluminous records containing both exempt and nonexempt information, this office has recognized that the burden on the agency in redacting the exempt information may be an unreasonable one. At page 12 of OAG 90-24, we held:

Where the request for records is broad . . . , and involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872[(6)].

On this basis, we uphold the Cabinet's denial of Ms. Hinkle's request for all licensure inspection reports.

In responding to Ms. Hinkle's appeal, Mr. Walker indicates that there are 421 long term care nursing facilities licensed in Kentucky, at least 314 of which are specifically licensed as nursing facilities. Our review of the multi-page licensure inspection report form confirms his statement that it contains numerous references to individual residents in various contexts. The report itself consists of 25 separate forms, some forms as much as 59 pages in length with several separate pages designated "worksheets" which are apparently used for interviews and observations.

Mr. Walker thus describes with specificity the actual volume of records implicated by Ms. Hinkle's request and the problems associated with redacting exempt information from nonexempt information. Given the mandatory confidentiality provisions applicable to much of the information which appears in the licensure inspection reports, and the volume of records implicated by the request, we conclude that Mr. Walker has adduced sufficient evidence to warrant this office in finding that Ms. Hinkle's request places an unreasonable burden on the Cabinet. We therefore find that its denial of Ms. Hinkle's request did not violate the Open Records Act.

We are aware that this decision represents a departure from recent open records decisions in which we have held that a request for voluminous documents is not indicative of an unreasonable burden where the requester states that he is willing to inspect the records himself. See, for example, 97-ORD-6. At page 4 and 5 of the cited decision we noted that the presence of some exempt information in the disputed records did not relieve the agency of its obligation to provide all nonexempt information since "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 97-ORD-6, p. 5, citing OAG 81-198, p. 4.

This holding was predicated on the notion that "the decision [to redact] rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory." OAG 89-76, p. 3. In the appeal before us, the cited exemptions, and corresponding state and federal legislation, are mandatory. The decision to redact is not discretionary. The Cabinet is legally bound to preserve the confidentiality of records governed by this legislation. We find that the request submitted by Ms. Hinkle may properly be characterized as "broad . . . , involv[ing] numerous records in which confidential information is commingled with information that might be releasable." OAG 90-24, p. 12. Because the Cabinet must, by law, protect the confidentiality of this information, we uphold the Cabinet's denial of that request since "the difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872[(6)]." Id.

Having said this, we recognize that there is a compelling need to monitor the actions of the Cabinet in their regulatory role relative to licensed nursing facilities. The Cabinet acknowledges this need and its corresponding duty to afford access to inspection reports. Thus, at page 2 of the Cabinet's May 15 response, Mr. Walker comments:

The health care facility licensure process and attendant administrative actions of the Cabinet and its Division of Licensing and Regulation is of keen interest to a wide variety of individuals and organizations throughout the Commonwealth. The agency is used to constant requests for access to its reports. It fields and responds to requests on an almost daily basis. Typically, these requests address a single facility or single event subject to review. It is the blanket request for data which prove burdensome [sic].

We urge the Cabinet for Health Services to work with Ms. Hinkle toward narrowing the scope of her request so that the interest in public oversight of the Cabinet's regulatory function is served with minimal disruption of its other essential functions.

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.

A. B. Chandler III

Attorney General


Amye L. Bensenhaver

Assistant Attorney General

#509

Distributed to:

Lisa English Hinkle

McBrayer, McGinnis, Leslie & Kirkland

Suite 300

163 West Short Street

Lexington KY 40507

John H. Walker

Office of General Counsel

Cabinet for Health Services

275 East Main Street

Frankfort KY 40601

Rebecca J. Cecil

Director

Division of Licensing and Regulation

Cabinet for Health Services

275 East Main

Frankfort KY 40601