NOT TO BE PUBLISHED 

93-ORD-78

June 23, 1993

IN RE: John C. Adler/Cabinet for Human Resources

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Cabinet for Human Resources' denial of Dr. John C. Adler's request to inspect certain records in the Cabinet's custody. That record is identified as "a print-out of all the prescription medicines prescribed by [Dr. Adler] or others during the period 1986-1992 [for Ms. Mary Fletcher]," including the name and quantity of the drugs, who prescribed them, what drug store filled them, and the dates of the prescriptions. In addition, Dr. Adler requested "the inclusive dates that Ms. Fletcher was locked in to the 'lock-in' program." Dr. Adler is currently under investigation by the Kentucky Board of Medical Licensure and is scheduled for a hearing in June.

On behalf of the Cabinet for Human Resources, Mr. Timothy A. Sturgill, Assistant Counsel, responded to Dr. Adler's request in a letter dated April 22, 1993. Relying on KRS 194.060(1), he explained that the Cabinet is prohibited from releasing records or reports which directly or indirectly identify a client or patient or former client or patient of the Cabinet since these records are deemed confidential. It was Mr. Sturgill's position that KRS 194.060(1) is incorporated into the Open Records Act by operation of KRS 61.878(1)(k), which exempts from public inspection records or information the disclosure of which is prohibited by enactment of the General Assembly.

In a follow-up letter to this Office, Mr. Sturgill elaborated on his earlier position, arguing that KRS 194.060(1) "clearly provides that it is the records and reports of the

Cabinet that are confidential, not merely the identity of the Cabinet's clients or patients." Moreover, he notes that if, as Dr. Adler indicates, Ms. Fletcher is a Medicaid recipient, her records are confidential pursuant to KRS 205.175(2), which prohibits publication of "[i]nformation obtained [about public assistance recipients] . . . ," with certain enumerated exceptions. Finally, he notes that federal laws and regulations governing the Medicaid program "require the Commonwealth to provide safeguards which 'restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of the plan.' (See 42 U.S.C.  1396a(7) and 42 CFR 431, subpart F)."

Responding to Dr. Adler's allegation that he has received records from the Cabinet in response to previous requests, Mr. Sturgill indicates that the Department for Medicaid Services has no record of having ever provided Dr. Adler with information relating to Ms. Fletcher. Dr. Adler was provided with utilization review information about KENPAC recipients who had chosen him as their primary care physician, but Ms. Fletcher has never been a KENPAC recipient.

In his letter of appeal to this Office, Dr. Adler argues that as Ms. Fletcher's treating physician, he is entitled to "any information" about her case. In his view, if the Board of Medical Licensure has been afforded access to the requested information, "equity . . . demand[s] [that he receive] equal treatment." He questions why the Cabinet "supplied [him] with all manner of discovery materials until [his] last letter but now have retreated behind the statute." It is his belief that the "flow of information . . . ceased after [he] asked them to [explain] why they were paying other physicians when the patient was locked in to [his] practice."

We are asked to determine if the Cabinet for Human Resources properly relied on KRS 61.878(1)(k), incorporating KRS 194.060(1), in denying Dr. Adler's request. As a corollary of that question, we must decide whether the Cabinet is estopped from denying his request by virtue of the fact that it may have previously released documents to him. We conclude that the Cabinet's denial of his request was entirely consistent with the Open Records Act, and that it is not estopped from denying his request for additional documents.

KRS 61.878(1)(k) excludes from the mandatory disclosure provisions of the Open Records Act:

This Office has previously recognized that the General Assembly enacted KRS 194.060(1) in order to prohibit or restrict publication of records and reports of the Cabinet which directly or indirectly identify a client or patient or a former client or patient of the Cabinet. OAG 91-30. The only

exceptions to this prohibition are found at KRS 194.060(1)(a) and (b) and KRS 194.060(2), which authorize release of Cabinet records if the person identified in the records or his guardian gives consent, if state or federal law permit disclosure, or if a request is made by an authorized representative of any state or local governmental agency "if such agency has a direct, tangible, and legitimate interest in the individual concerned or his immediate family."

It is apparent that the records requested by Dr. Adler identify a client or patient of the Cabinet for Human Resources, and therefore fall within the statutory prohibition contained in KRS 194.060(1). Dr. Adler fails to demonstrate that his request falls within any of the statutory recognized exceptions. We therefore conclude that the Cabinet properly denied his request.

We are not persuaded by Dr. Adler's argument that the Cabinet is estopped from denying his request by virtue of its purported release of documents at an earlier date. This Office has consistently held that an agency is not estopped from denying inspection of additional documents by an earlier release of documents. At page two of OAG 83-140, we observed:

See also, OAG 90-117; OAG 91-136. It is unclear whether documents of the precise nature currently being requested by Dr. Adler were, in fact, previously released to him by other agency employees. It is clear, however, that any documents which were released, were not released under authority of the Cabinet's official custodian of records for Medicaid Services. We do not believe that the disclosure of dissimilar documents by a separate division of the Cabinet constitutes an action by which the Cabinet admitted its obligation to release the documents now being sought. We therefore conclude that the Cabinet for Human Resources is not estopped from denying Dr. Adler's current request.

We remind Dr. Adler that the Open Records Act was not intended to be used as a substitute for discovery procedures. OAG 82-280; OAG 83-346; OAG 89-59; OAG 91-91; OAG 91-124; 93-ORD-37. "Requests under the Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery." OAG 89-65, at p. 3. It is therefore not the Attorney General's duty to determine whether records would be discoverable in a civil or criminal action. We are limited in our review to deciding whether the Cabinet for Human Resources properly denied Dr. Adler's open records request. It is the opinion of this Office that the Cabinet's actions were entirely consistent with the Open Records Act.

Dr. Adler may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/681

Distributed to:

Hon. Timothy A. Sturgill

Cabinet for Human Resources

Commonwealth of Kentucky

Frankfort, KY 40601

Dr. John C. Adler

Box 5567

Maryville, TN 37802