Monday, September 8, 2014

UK properly denied certain requests by CNN,
but it erred in denying others



The University of Kentucky properly denied certain requests from CNN relating to the university’s pediatric cardiothoracic program, but it erred by not providing the news network with sufficient information about records that the university claimed did not exist, the attorney general said in an August 6 opinion.

The opinion, In re: CNN/University of Kentucky, concerned requests that CNN Senior Medical Correspondent Elizabeth Cohen made to the university on February 13 and March 27, 2014.

Cohen requested records relating to UK’s pediatric heart surgery program.

The university properly made two denials, the attorney general said.

First, the university was not required to provide “the raw data consisting of the total volume of surgeries, number of deaths, and number of survivors related to its pediatric cardiothoracic program, as those numbers are less than five.”

The university had previously disclosed mortality rates and feared that disclosing the raw data could allow individual patients to be identified, and the attorney general found that the releasing of this data was precluded both by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and by KRS 61.878(1)(a).

Both of these laws, the opinion notes, share an aim of protecting patient privacy, and the disclosure of the raw data sought by CNN could allow individual patients to be identified.

The university relied on guidelines of the National Center for Health Statistics in denying the request.

These guidelines, according to the opinion, prohibit (1) the disclosure of quantity figures that are less than five and (2) the disclosure of numbers greater than five if such disclosure could result in numbers less than five being derivable through subtraction or other calculation.

The university argued that the guidelines are “helpful in determining whether there is a reasonable basis to believe that an individual patient can be identified,” the opinion stated.

The attorney general agreed and held, using the guideline’s “less than five” baseline, that “a reasonable basis exists for UK’s nondisclosure of this raw data.”

Second, the attorney general said the university properly withheld reports submitted to it by the Society of Thoracic Surgeons “because the records were compiled and maintained for scientific research.”

The attorney general relied on KRS 61.878(1)(b), which provides an exception to disclosure for “[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research.”

The attorney general noted that UK had said the research was disclosed to it “‘with the explicit understanding that the University would not disclose the information to others.’”

Upon reviewing the reports, the attorney general said that the introductory pages did contain a number of statements of confidentiality and restrictions on disclosure by the university without the Society’s permission. Because of this, the attorney general found that UK did not err by denying this part of CNN’s request.

The university did err, however, by failing to provide CNN with sufficient information about certain withheld records to permit CNN the opportunity to dispute those records’ claimed nonexistence.

According to the opinion, the university “denied CNN’s March 27 request for collated mortality rates, and raw numbers of the total volume of surgeries, number of deaths, and number of survivors for the program from January 2006 to December 2010 and categorized by the five ‘STAT’ categories, nine named procedures commonly treated as quality indicators, and, for the same period but extending to October 2012, three identified procedures.”

The university denied the request, in part, because it claimed the records were nonexistent, the opinion stated.

While the university was correct in that it has no obligation to create a record that does not exist, the university failed to identify which of the requests it would not honor on that basis, the attorney general said.

The university’s actions also did not satisfy a standard concerning open records requests recently explained by the Kentucky Supreme Court, the opinion stated. In City of Ft. Thomas v. Cincinnati Enquirer, the Kentucky Supreme Court said an agency must be held to its burden of proof by a sufficient factual showing to justify an exemption.

Here, UK failed to specify which requests would not be honored on the basis of the claimed records’ nonexistence, according to the opinion.

“While it cannot produce a nonexistent record, and is not legally obligated to create one, UK is obligated to provide CNN with sufficient information about the nature of the record or records to which access was denied based on it[s] or their nonexistence to permit CNN ‘to dispute the claim and the court to assess it,’” the attorney general said.

An Open Meetings Act violation must occur
before the attorney general can address it

The attorney general will not address a violation of the Open Meetings Act that is anticipated but has not occurred, according to an August 8 opinion.

The opinion concerned an appeal by Michael Murphy in regard to the Glencoe City Council’s response to his July 1, 2014, written complaint, which alleged violation of the Open Meetings Act based on the council’s actions regarding non-agenda topics.

The attorney general found that the city had violated certain provisions of the act by “discussing and acting on non-agenda topics” at a June 16 special meeting.

According to the opinion, the council did not dispute the allegation and agreed to Murphy’s proposed remedy of conducting all of its special meetings and committee meetings “strictly in accordance” with the provisions of the relevant Kentucky statutes.

However, the attorney general cannot address potential violations of the act.

While Murphy may have expressed concern about the possibility of future violations, his proper remedy is to submit a complaint to the council’s presiding officer if he questions whether a violation has occurred and pursue an appeal if necessary, according to the opinion.


“The Attorney General cannot prospectively address violations of the Open Meetings Act that a complainant anticipates but that have not occurred,” the opinion stated.

State violated Open Records Act
with conditional use agreement

The Cabinet for Health and Family Services violated the Open Records Act by making the release of information requested by USA TODAY conditioned on a use agreement, according to an attorney general opinion released August 13.

The opinion, In re: USA TODAY/Cabinet for Health and Family Services, concerned an appeal by USA TODAY after the cabinet agreed to comply with a request, but then made the release of information conditioned on a reporter completing a use agreement that would not have allowed her to name healthcare providers found within the information.

USA TODAY reporter Alison Young had requested “access to and an electronic copy of data contained in the state’s public use dataset of hospital inpatient discharge data for calendar years 2012, 2011 and 2010,” according to the opinion, “as part of a major examination of rising rates of maternal morbidity and mortality in the United States.”

Young sought release of the data without any restriction on being able to name the hospitals or healthcare providers identified in the database by “provider ID,” according to the opinion.

The use agreement requested by the cabinet would have prohibited USA TODAY “from using or permitting others to use the data ‘to learn the identity of any provider that may be represented in the data.’ ”

Young had sought “de-identified” data, meaning that information relating to individual patients had been removed, and USA TODAY argued that the cabinet’s interpretation of the relevant Kentucky statute was “nonsensical” because it would mean any person could access the public information requested but then be prohibited from discussing or otherwise publicizing the same information.

The cabinet maintained that a state regulation required the person requesting the data to agree to the use agreement, but the attorney general said that the cabinet exceed its statutory authority by conditioning release of the information on the use agreement and that the conditional release violated the Open Records Act.

Kentucky law requires a data-use agreement only when the cabinet releases patient-specific data, the attorney general said, and nothing permits the cabinet “to prohibit a requester from re-releasing the names of providers contained in the datasets.”

While the privacy of individual patients must be protected, the relevant Kentucky statute and regulation “are not concerned with shielding providers or hospitals from public scrutiny,” the attorney general said.




Judge's entry and exit from county parking garage not subject to Open Records request

The Kenton County Fiscal Court did not violate the Open Records Act by redacting the times of entry and departure of a judge from a county parking garage, the attorney general held August 13.

The decision came regarding a matter between the fiscal court and James A. Dietz.

Dietz appealed the fiscal court’s partial denial of his request for records concerning the frequency of use of the county parking garage by Kenton County Family Court Judge Lisa O. Bushelman for calendar years 2012 and 2013.

The fiscal court provided Dietz with a 45-page parking system activity report, but it redacted the identification number associated with the judge’s key card and the times she entered and departed the garage without explanation, according to the opinion. The fiscal court did not redact the dates on which the judge’s key card had been used.

Dietz questioned the fiscal court’s omission of statutory reliance for the redactions, the opinion stated, and he argued that he was not concerned with the identification number, but instead wanted to see the times Bushelman used the garage.

“The time information may … indicate to the public whether its judges, who are public servants compensated by public tax dollars, are spending a sufficient amount of time performing their jobs on the days they park their cars in the courthouse garage,” Dietz said in subsequent correspondence, according to the opinion.

Dietz cited attorney general opinions in which the public’s right of access to records concerning public employee time and attendance had been affirmed, the opinion stated.

The fiscal court cited opinions in which the attorney general affirmed public agency denials of requests because the production of the records would pose an “unreasonable burden,” meaning it would compromise a significant governmental interest. The fiscal court also noted the safety concerns of releasing the exact times of a judge’s travels.

As a preliminary matter, the attorney general said the fiscal court had violated a provision of the Open Records Act because its initial response to Dietz did not include the statutory authority for the partial denial. However, since the fiscal court had acknowledged this in subsequent correspondence, the attorney general addressed it no further.

The attorney general then addressed the fiscal court’s argument concerning the identification number of the judge’s key card.

Since Dietz had not requested this information, the attorney general found “that the fiscal court failed to make a clear and convincing showing that disclosure of the parking system activity reports, including the times of entry and exit, but excluding the key card identification number, would necessitate an immediate revision of policy or practice.”

Concerning the redaction of the times of the judge’s entries and exits from the garage, the attorney general found that the fiscal court had not violated the Open Records Act for its partial denial of Dietz’s request.

The attorney general noted that while requests for time spent working by public servants is generally disclosed, the times of a judge’s use of the parking garage “would not constitute an accurate measure of the judge’s time spent in public service.”

Weighing the public’s desire to know that a judge is performing her public service and the judge’s interest in personal safety, the attorney general found the judge’s interest tipped the balance and the fiscal court had not violated the Open Records Act for its redactions.

“[U]nder the particular facts and circumstances presented, the public’s right to know that Judge Bushelman, a public servant, is properly executing her statutory functions does not outweigh the significant privacy interest Judge Bushelman possesses in her own personal safety and security,” the attorney general said.



U of L violated Open Records Act by failing to adequately respond to Louisville reporter's request

The University of Louisville violated the Open Records Act for its actions in responding to a request by the Kentucky Center for Investigative Reporting, the attorney general’s office said in an August 27 opinion.

Center for Investigative Reporting reporter Kristina Goetz appealed to the attorney general’s office after more than a month of seeking records from U of L relating to the university’s contract and correspondence with private auditing firm Strothman & Co., according to background information in the opinion.

As a procedural matter, the attorney general’s office said the university had violated the Open Records Act by failing to respond to Goetz’s requests within three business days.

The university also violated the Open Records Act by not providing sufficient information about a document withheld as “preliminary” because it prevented Goetz from being able to dispute the characterization of that document, the opinion stated. 

The attorney general’s office considered whether the requested report was an audit or a consulting report.

Explaining that the nature and purpose of a record determines whether it is a public record, the attorney general’s office found that the report was a preliminary document until it was incorporated into final agency action and that “U of L did not substantively violate the Open Records Act in withholding the report prior to its adoption as a final agency action.”

Yet, since a copy of the report had been provided to Goetz, her request for it was moot. (Her request relating to other documents she had received was also determined to be moot.)

U of L argued that Goetz's request for the correspondence related to the report was over broad. However, the attorney general's office found her request was limited to specific documents — those relating to the report prepared by the private company for U of L; a specific period — Fall 2013 to Fall 2014; and a specific subject — the report.

The university also argued that complying with the request would create an unreasonable burden, but the attorney general’s office said the search for the corresponding documents need not be exhaustive or a fishing expedition. Instead, the university is “required to make a reasonable search of persons who are likely to have responsive documents.”

By not making such a search, U of L violated the Open Records Act, the opinion stated, and now 
“U of L is required to provide not only any preliminary documents that were expressly incorporated into the report, but any documents that formed the basis of the final agency action.”

A timeline of Goetz’s requests and U of L’s responses, as outlined in the attorney general opinion, is as follows:

  • April 21, 2014: Goetz submitted two open records requests by email to U of L. One requested documents, including the contract for and all correspondence and other documentation regarding the private auditing firm charged with conducting a comprehensive audit of U of L. The other requested the findings, including any drafts, of the recent comprehensive audit for the university.
  • April 28, 2014: Goetz sent a follow-up email to U of L stating that she had not received a formal, written response acknowledging receipt of her requests nor had she received a timetable for when the requests would be filed.
  • April 29, 2014: U of L responded to both requests and said that the university and its affiliated corporations are audited annually. The response also said that the university had “'not identified any records regarding a specific audit outside the regular audit process.'”
  •  April 30, 2014: Goetz sent an email that clarified her requests. She specified that she wanted documentation regarding the report produced by Strothman & Co. and any payment information from U of L to the company. She also requested documents regarding the scope of the company’s work, intent and results, including “‘drafts of the report, any and all material that went into its production and any correspondence between U of L and Strothman & Company regarding that work.”
  • May 5, 2014: Goetz sent an email to make sure that her email clarifying her request had been received.
  • May 6, 2014: U of L responded to Goetz and stated that the appropriate university officials had been asked to identify all responsive records and to send them in for review.
  • May 15, 2014: Goetz emailed U of L stating that the university had failed to provide her with documents responsive to her request early in the week as it had promised. She requested an update on the when the records would be ready for inspection, and U of L responded that it was still working to determine what records existed for the request. The university promised to contact Goetz once the records had been reviewed.
  • May 23, 2014: Goetz sent another follow-up email and asked that the university either produce the documents or deny her request by the end of business May 27, 2014.
  • May 27, 2014: U of L responded, apologized for the continued delay and said it was still working to determine what records were releasable.
  • May 29, 2014: The university responded to Goetz’s request. As to the contract and payment information, the university would provide copies of the records upon receipt of payment of an invoice. The university said an additional document responsive to Goetz’s request was identified but claimed the document was exempt from release because it was a draft. The university denied the rest of Goetz’s request, saying that it was “‘technically deficient due to a failure to identify with some reasonable degree of specificity the documents [she] sought to review or the individuals whose communications [she] sought.’”’
  •  June 6, 2014: Goetz appealed to the attorney general’s office, raising several issues. Goetz said the university had initially denied that the contract existed, despite the proposal from Strothman & Co. stating on its cover page “‘special comprehensive financial examination and audit.’” Additionally, the university’s partial denial on the basis of the document being preliminary in nature did not give her sufficient information to make an appeal. Goetz said that she believed the document being withheld was the report itself, though the university gave no indication of when it would become final. She also questioned how the report could be a draft when “‘the university is paying the company to help implement its recommendations.” Finally, Goetz disputed U of L’s claims that her request was not specific enough.
  •  June 11, 2014: Goetz submitted copies of several documents to the attorney general’s office, including an the initial personal services contract.
  •  June 19, 2014: U of L responded to the appeal, and it said that the complainant recognized that the university had granted its request to review the contract. Concerning the report, the university acknowledged that “‘final audit reports must be disclosed under the Open Records Act.’” However, the university argued that it was still working with the private company “‘to finalize the analysis being performed’” and that investigative reports are protected from disclosure until “‘they are adopted and made part of a final agency action.’” The university claimed that correspondence relating to preliminary drafts was also protected and that Goetz’s request for correspondence regarding the auditing firm was overly broad.
  • June 27, 2014: The attorney general’s office requested additional information from U of L regarding the challenges it faced “in responding to the request, whether the report was presented to the Board of Trustees or individual trustees, and what action was necessary to finalize the report.”
  • July 18, 2014: U of L responded to the attorney general’s office. As to challenges, U of L said locating information for all of its employees or students was “‘simply over-broad and burdensome.’” Concerning the presentation of the report, the university said the draft report had not been reported to the Board in May 2014, but a draft of the consulting report had been presented to the Audit Committee, which included certain members of the board, in April 2014. The university attached a copy of the final report. U of L said “‘the final agency action necessary to make the consulting report subject to the open records laws’” had occurred.
  • August 27, 2014: The attorney general’s office released an opinion regarding the matter.