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