NOT TO BE PUBLISHED
97-ORD-40
March 12, 1997
In re: Keith D. Phillips/Kentucky Board of Medical Licensure
Open Records Appeal
This matter comes to the Attorney General on appeal from the Kentucky Board of Medical Licensure's partial denial of Mr. Keith D. Phillips's open records request to inspect copies of the following documents:
Verification of Medical License (including all education certificates and actual copy of application for medical license) on Michael J. Pravetz, MD.
All complaints/grievances on file on Michel J. Pravetz, MD, to include any criminal/civil complaints filed in Lawrence County or other jurisdiction.
All affidavits filed by previous patients and all reports of medical investigators.
All reports, information, complaints on file received from the State of Pennsylvania on Michael J. Pravetz, MD.
Ms. C. Jill Lun, Open Records Custodian, Kentucky Board of Medical Licensure responded to Mr. Phillips's request, advising him as follows:
1. Copy of Application for Licensure, including educational certificates dated March 15, 1993, is enclosed.
2. Any other information requested is exempt pursuant to KRS
61.878(1)(j).
3. Information requested from Lawrence County should be obtained through the Lawrence County Court system, at P. O. Box 212, Louisa, Kentucky 41230.
4. May contact Pennsylvania State Board of Medicine, P. O. Box 2649, Harrisburg, PA 17101-2649 for any information they may have.
5. Grievance form is enclosed.
On February 13, 1997, we sent a “Notification of Receipt of Open Records Appeal” to the Board and enclosed a copy of Mr. Phillips's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Lun provided this office with a response to the issues raised in the letter of appeal.
In her response, Ms. Lun advises that Dr. Pravetz is currently under investigation and the panel members have not initiated any administrative action or final action regarding Dr. Pravetz.
Mr. Phillips appeals from the Board's partial denial of his request and asks this office to determine if the agency's response was consistent with the Open Records Act. For the reasons which follow, we conclude that the Board properly relied upon KRS 61.878(1)(j) in its partial denial of Mr. Phillips's request relating to complaints filed against Dr. Pravetz.
Among the public records which may be excluded from public inspection, in the absence of a court order authorizing inspection, are those set forth in KRS 61.878(1)(j):
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1984), the Court said, in part, at page 956 of its opinion as follows:
It is beyond contention that complaints which “initially spawned” any investigations of Kentucky physicians may not be excluded because the public “has a right to know what complaints have been made.” Id. at 660. It is clear then that the trial court was correct in ruling that once final action is taken by the Board, the initial complaints must be subject to public scrutiny. The Board's attempt to categorize complaints as formal public complaints and private individual complaints has no bearing on whether such complaints must be released. Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under KRS 61.878 (1)(g) or (h) [now codified as KRS 61.878(1)(i) and (j)]. . . .
Moreover, preliminary letters, notes, reports, and correspondence, if adopted by the Board as part of its final action, are subject to public inspection as their preliminary characterization is lost. OAG 85-147. Thus, once final action is taken by the Board, the initial complaints which spawned the Board's investigation and any preliminary records which are adopted by the Board as part of its final action, are subject to public inspection.
In the instant case, however, we conclude the Board's denial of Mr. Phillips's request to inspect complaints and other documents pertaining to those complaints, involving Dr. Pravetz, was proper under authority of KRS 61.878(1)(j), since the Board has not taken any final action relative to those complaints.
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
James M. Ringo
Assistant Attorney General
#168
Distributed to:
Keith D. Phillips #100289
Eastern Kentucky Correctional Complex
P. O. Box 636
West Liberty KY 41472-0636
C. Jill Lun
Kentucky Medical Licensure Board
Hurstbourne Office Park
Suite 1B
310 Whittington Parkway
Louisville KY 40222