NOT TO BE PUBLISHED
In re: Dennis R. McGlincy/Office of the Attorney General
This is an appeal from the Office of the Attorney General's denial
of Dennis R. McGlincy's May 19, 1997, request for "information
pertaining to the identity of the doctors that Stephen Parks was
seeing during 1992." The question presented in the appeal
is whether the Attorney General properly relied on KRS 61.878(1)(a)
and (l), the latter exception incorporating KRS 218A.230(4) and
KRS 315.121(2)(b) and (i) into the Open Records Act, in denying
Mr. McGlincy access to this information. For the reasons which
follow, we conclude that the Attorney General's response was procedurally
deficient, and that he failed to meet his statutory burden of
proof relative to the invocation of KRS 61.878(1)(a). We further
conclude that the Attorney General's reliance on KRS 315.121(2)(b)
and (i) was misplaced. Nevertheless, we find that the Attorney
General properly denied Mr. McGlincy access to records containing
the information he seeks on the basis of KRS 61.878(1)(l) and
KRS 218A.230(4).
We begin by acknowledging that "a request for an Attorney
General's opinion concerning a denial of an open records request
by the Attorney General's own custodian of records creates an
obvious and unavoidable conflict of interest." OAG 91-35,
p. 3. In conflicts of interest, our primary duty is always to
the people of the Commonwealth. Comm. ex rel. Hancock v Paxton,
Ky., 516 SW2d 865, 866 (1974). The General Assembly has given
us the duty to be the first level of appellate review in open
records appeals. KRS 61.880(2). The General Assembly, of course,
has the power to give us additional duties to carry out in its
discretion. Ky. Const. Sec. 91; and Brown v Barkley, Ky.,
628 SW2d 616, 621, n.10 (1982). Therefore, we resolve the conflict
in this instance by deciding the appeal before us.
In this appeal, as in past appeals involving Attorney General
review of his agency's denial of an open records request, we "assure
the appealing party that we have endeavored to research the law
thoroughly and to apply that law to the facts presented without
favoritism or bias." OAG 91-35, p. 3. KRS 61.880(2) "directs
the Attorney General to review open records appeals without reference
to the identity of the requester or to the agency issuing the
denial." OAG 92-10, p. 4. We strive to maintain absolute
impartiality in discharging this duty.
Turning to the procedural irregularities in this appeal, we direct
the parties' attention to KRS 61.880(1) which contains specific
guidelines for agency response to a request under the Act. That
statute provides:
Each public agency, upon any request for records
made under KRS 61.870 to 61.884, shall determine within three
(3) days, excepting Saturdays, Sundays, and legal holidays, after
the receipt of any such request whether to comply with the request
and shall notify in writing the person making the request, within
the three (3) day period, of its decision. An agency response
denying, in whole or in part, inspection of any record shall include
a statement of the specific exception authorizing the withholding
of the record and a brief explanation of how the exception applies
to the record withheld. The response shall be issued by the official
custodian or under his authority, and it shall constitute final
agency action.
The Attorney General's response to Mr. McGlincy's request was
procedurally deficient in several respects.
In construing the obligations of public agencies under the cited
provision, this office has observed:
In general, a public agency cannot postpone or delay this [three
day] statutory deadline. The burden on the agency to respond
in three working days is, not infrequently, an onerous one. Nevertheless,
the only exceptions to this general rule are found at KRS 61.872(4)
and (5). Unless the person to whom the request is directed does
not have custody and control of the records, or the records are
in active use, in storage, or are not available, the agency is
required to notify the requester of its decision within three
working days, and to afford the requester timely access to the
requested records. 93-ORD-134. If, on the other hand, the records
are in use, in storage, or are otherwise unavailable, the agency
must "immediately so notify" the requester, and designate
a place, time, and date for inspection "not to exceed"
three days from receipt of the request, "unless a detailed
explanation of the cause is given for further delay and the place,
time and earliest date on which the public record will be available
for inspection." KRS 61.872(5).
97-ORD-2, p. 4; see also, 96-ORD-186; 96-ORD-168; 95-ORD-105;
93-ORD-134; 93-ORD-109; 93-ORD-43; OAG 92-64; OAG 89-79.
Mr. McGlincy's request was submitted on May 19, 1997. Within
the statutorily mandated three business days, the Attorney General
contacted him by telephone to advise him that the office was "searching
for the file and . . . would respond as soon as [it was] located
and reviewed." On June 16, some 19 days after Mr. McGlincy
made his request, the Attorney General notified him in writing
that his request was denied. The Attorney General erred in failing
to respond in writing and within three business days to Mr. McGlincy's
request, and in failing to provide "a detailed explanation"
of the cause of the delay. KRS 61.880(1); KRS 61.872(5). An
oral communication does not satisfy the requirements of the statute;
nor does the practice of indefinitely extending the statutory
deadline for agency decision relative to a request. Unless either
KRS 61.872(4) or (5) is properly invoked, public agencies must
comply with the procedural requirements of the Open Records Act
by responding in writing, and within three business days, to records
requests, and determining whether the records sought will be released.
With respect to the substantive issues in this appeal, we note
that the Office of the Attorney General was not obligated to honor
Mr. McGlincy's request because it was technically a request for
information. He requested "information pertaining to the
identities of doctors." At page 2 of 95-ORD-131, this office
observed:
Requests for information, as distinguished from records, are
outside of the scope of the open records provisions. See, e.g.,
OAG 89-77. Our position is premised on the notion that "[o]pen
records provisions address only inspection of records .
. . [and] do not require public agencies or officials to provide
or compile specific information to conform to the parameters
of a given request." OAG 89-77, p. 4.
Simply stated, "The purpose of the Open Records Law is not
to provide information but to provide access to public records
which are not exempt by law." OAG 79-547, p. 2. These principles
notwithstanding, the Attorney General elected to treat Mr. McGlincy's
request as a properly framed open records request, and to proceed
to a determination whether records containing the information
sought should be released.
In reaching the decision to deny Mr. McGlincy's request, the
Attorney General relied on KRS 61.878(1)(a), KRS 61.878(1)(l),
and two separate provisions of the Kentucky Revised Statutes,
KRS 315.121(2)(b) and (i) and KRS 218A.230(4), which are incorporated
into the Open Records Act by the latter provision. Although we
are not persuaded that the Attorney General met his statutory
burden of proof in relying on KRS 61.878(1)(a), or that he properly
relied on KRS 315.121(2)(b) and (i), we find that he is prohibited
from disclosing pharmacy records containing the names of doctors
who saw Stephen Parks in 1992 by operation of KRS 218.230(4).
We address the applicability of each of the cited exceptions
in turn.
KRS 61.878(1)(a) excludes from the application of the Open Records
Act, "Public records containing information of a personal
nature where the public disclosure thereof would constitute a
clearly unwarranted invasion of personal privacy." In 1992
the Kentucky Supreme Court established a standard by which to
judge the propriety of a public agency's invocation of this exception.
Recognizing that the Open Records Act "exhibits a general
bias favoring disclosure," the court held that "there
is but one available mode of decision, and that is by comparative
weighing of the antagonistic interests." Kentucky Board
of Examiners of Psychologists v Courier-Journal and Louisville
Times Co., Ky., 826 S.W.2d 324, 327, 328 (1992). The Supreme
Court characterized these "antagonistic interests" as
the public's interest in knowing whether its agencies are properly
executing their statutory functions and individual privacy interests.
Fundamental to this "comparative weighing of antagonistic
interests" is the recognition that "the policy of disclosure
is purposed to subserve the public interest, not to satisfy the
public's curiosity." Id. at 328.
In Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d
825, 828 (1994), the Kentucky Court of Appeals elaborated on this
"mode of decision":
[O]ur analysis begins with a determination of whether the subject
information is of a "personal nature." If we find that
it is, we must then determine whether public disclosure "would
constitute a clearly unwarranted invasion of personal privacy."
This latter determination entails a "comparative weighing
of antagonistic interests" in which the privacy interest
in nondisclosure is balanced against the general rule of inspection
and its underlying policy of openness for the public good. [Board
of Examiners] at 327.
The court emphasized that the only relevant public interest to
be considered is the extent to which disclosure would serve the
principal purpose of the Open Records Act which is "to further
the citizens' right to know what their government is doing and
. . . subject agency action to public scrutiny." Zink
at 828.
With these principles in mind, we turn to the question presented
in this appeal: Whether the Attorney General properly relied
on KRS 61.878(1)(a) in denying Mr. McGlincy's request for the
identities of doctors that Stephen Parks was seeing in 1992.
Because the Attorney General failed to establish that disclosure
of this information would constitute a clearly unwarranted invasion
of personal privacy, we find that he did not satisfy his statutory
burden of proof. KRS 61.880(2)(c).
In his June 16 response to Mr. McGlincy's request, the Attorney
General asserted that "under KRS 61.878(1)(a), prescription
records clearly contain information of a personal nature where
the public disclosure thereof would constitute a clearly unwarranted
invasion of personal privacy." The Attorney General did
not elaborate. In a follow-up letter dated July 14, 1997, the
Attorney General responded to the arguments Mr. McGlincy advanced
in his appeal, observing:
Mr. McGlincy's second argument is in essence that the public's
interest in knowing the names of a person's doctors "clearly
outweighs" that person's interest in keeping the names of
his doctors private. In fact, usually the opposite is true.
Most persons consider the names of their doctors to be private
and confidential. Under KRS 315.121(2)(b) and (i), patient information
in pharmacies' records is confidential. KRS 315.010 defines that
"'confidential information' means information which is accessed
or maintained by a pharmacist in a patient's record. . . ."
Although the Attorney General established that the subject information
is of a personal nature, he did not establish that disclosure
would constitute a clearly unwarranted invasion of personal privacy
by demonstrating that the privacy interests implicated by disclosure
are superior to the public's interest in monitoring agency action.
As we have so often noted, "Mere invocation of the exception
supported by bare allegations, without an adequate explanation
of how the exception applies to the record withheld, does not
satisfy the burden of proof imposed on the agency by KRS 61.880(2)[(c)]."
93-ORD-86, p. 6. Having failed to offer an adequate explanation
of how KRS 61.878(1)(a) applies to records containing the identities
of doctors that Stephen Parks saw in 1992, we conclude that the
Attorney General did not meet his burden of proof relative to
invocation of this exception.
Nor are we persuaded that KRS 315.121(2)(b) and (i) authorize
nondisclosure of these records. These provisions, which, as noted,
are incorporated into the Open Records Act by operation of KRS
61.878(1)(l), state:
(2) Unprofessional or unethical conduct includes, but is not limited
to, the following acts of a pharmacist or pharmacist intern:
…
(b) Divulging or revealing to unauthorized persons patient information or the nature of professional services rendered without the patient's express consent or without order or direction of a court.
…
(i) Accessing or attempting to access confidential patient information
for persons other than those with whom a pharmacist has a current
pharmacist-patient relationship and where such information is
necessary to the pharmacist to provide pharmacy care.
These provisions are found in Chapter 315 of the Kentucky Revised
Statutes the purpose of which:
is to promote, preserve, and protect public health, safety, and
welfare by and through effective control and regulation of the
practice of pharmacy; the licensure, control, and regulation of
all sites or persons who are required to obtain a license or permit
from the Board of Pharmacy, whether located in or outside the
Commonwealth, that distribute, manufacture, or sell drugs within
the Commonwealth.
The specific provision cited relates to "Grounds for acting
against licensee[s]." Insofar as the Attorney General is
not a licensee of the Board of Pharmacy, he is not bound by rules
of ethical conduct relating to licensees, and cannot properly
rely on such a rule to authorize nondisclosure of records in his
custody which list prescription information including doctors'
names. We therefore find that the Attorney General's reliance
on KRS 61.878(1)(l) and KRS 315.121(2)(b) and (i) was misplaced.
Nevertheless, it is our opinion that the Attorney General properly
withheld the disputed records pursuant to KRS 61.878(1)(l) and
KRS 218A.230(4). The latter statute provides:
Prescriptions, orders, and records, required by this chapter,
and stocks of controlled substances, shall be open for inspection
only to federal, state, county, and municipal officers, whose
duty it is to enforce the laws of this state or of the United
States relating to controlled substances.
Pursuant to this statute, records of controlled substances received
are made confidential as to all persons except federal, state,
county, and municipal officers. Such records, though they are
in the custody of the Attorney General for investigative purposes,
are excluded from inspection by the public. This absolute prohibition
operates to restrict access to the records containing the information
sought in their entirety. We therefore find that the Attorney
General properly relied on KRS 61.878(1)(l) and KRS 218A.230(a)
in denying Mr. McGlincy access to these records, and in refusing
to release a redacted copy of these records per KRS 61.878(4)
or make available for inspection records which would yield the
information sought. Since these records are apparently the only
records in the Attorney General's custody which contain the identities
of doctors that Stephen Parks saw in 1992, and since these records
have been "made confidential by enactment of the General
Assembly," we find that the Office of the Attorney General
properly withheld them.
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
#706
Distributed to:
Dennis R. McGlincy
Sitlinger, McGlincy, Steiner, Theiler & Karem
3450 National City Tower
101 S. Fifth Street
Louisville KY 40202
Corey Bellamy
Open Records Administrator
Office of the Attorney General
700 Capitol Avenue
Frankfort KY 40601