05-ord-267 December 7, 2005 In re: Christine L. Gurk/Cabinet for Health and Family Services Open Records Decision

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December 7, 2005

In re: Christine L. Gurk/Cabinet for Health and Family Services

Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services, Department for Community Based Services, Division of Protection and Permanency, violated the Kentucky Open Records Act in failing to either grant the request of Christine L. Gurk within three business days or provide a detailed explanation of the cause for delay in providing her with copies of “all files pertaining to Greg Smith [and/or] Christine Gurk [and/or] their home at 171 Hackworth Lane, Waddy, KY 40076.” As in 05-ORD-134, this question must be answered in the affirmative. With the exception of this procedural deficiency, the CHFS did not violate the Open Records Act; the CHFS is merely complying with the applicable state and federal laws in requiring written authorization from Mr. Smith (a CHFS-305) before releasing the medical records at issue.
In a letter directed to Debbie Berry, Custodian of Records, DCBS, on October 14, 2005, Ms. Gurk requested copies of the specified files; more specifically, the request encompassed home inspection reports, employee notes, correspondence, memos, e-mails, “meeting notes or other internal communication and any photographs [or] recordings that the Department of Social Services or its employees poss[ess].” On October 25, 2005, Carrie Hall, Open Records Specialist, DPP, acknowledged receipt of Ms. Gurk’s request, advising Ms. Gurk that her office would review the request “and respond accordingly within thirty (30) days.” While the Records Management Section is admittedly required to respond upon receiving all requests, the CHFS is also subject to state and federal laws that govern the privacy of records.” Noticeably absent from the initial response of the CHFS is any reference to the specific authorities upon which the CHFS relies in support of this position.
Enclosed with Ms. Hall’s response was a “CHFS-305, Authorization for Disclosure of Protected Health Information” for Ms. Gurk to complete prior to receiving copies of any medical records contained in the responsive files. In conclusion, Ms. Hall reiterated that state and federal laws require the CHFS to “protect the privacy and confidentiality of any individuals who may be mentioned” in records maintained by the CHFS without further elaboration. Although the response of the CHFS is substantively correct, the CHFS violated the mandatory terms of KRS 61.880(1) in failing to issue a written response to Ms. Gurk’s request within three business days, including a statement of the specific exception(s) authorizing the withholding of any responsive records, and a brief explanation of how the exception(s) applies to the records withheld; in the alternative, the CHFS was required to provide a detailed explanation of the cause for delay and designate the place, time, and earliest date on which the records would be available in accordance with KRS 61.872(5).
By letter directed to this office on November 1, 2005, Ms. Gurk initiated this appeal, questioning Ms. Hall’s failure to explain why the CHFS would require 30 days to respond. According to Ms. Gurk, she did not request “any medical records,” only a copy of her “current foster care folder/contents.” Upon receiving notification of Ms. Gurk’s appeal from this office, Jon R. Klein, Assistant Counsel, supplemented Ms. Hall’s response on behalf of the CHFS. As explained by Mr. Klein:
The Records Management Section receives hundreds of requests for information and records every month. With the small staff available to handle these requests, responses are sometimes sent to requestors within the statutory 3-day time limit before a determination has been made as to whether responsive records exist.
Many requests are for files stored in one of Kentucky’s 120 counties in the local Cabinet for Health and Family Services offices. Other requests seek information from files that have been archived. Sometimes more than a week elapses prior to the Records Management Section being able to determine whether a file exists or where it is located, not to mention whether it contains the requested information. The 30-day timeframe is thus a period that allows for an appropriate, individualized response to each request received. Records are frequently provided well before the 30-day period expires.
Although Ms. Gurk denies requesting any medical records, Mr. Klein correctly observes that her original request “tells a different story.” With respect to the requirement of completing a CHFS-305, Mr. Klein observes:
Each foster home is required to submit for each family member, prior to approval, a statement signed by a health professional verifying the family member to be free of infectious diseases. See 922 KAR 1:310, Section 4(3)(f); 922 KAR 1:350, Section 3(8) and (9). These are medical records, and they are a part of every foster home file in the possession of the Cabinet. Moreover, Ms. Gurk requested this information not only about herself, but also about a person named Greg Smith. In such a case, the CHFS-305 must be completed by Mr. Smith to authorize release of his medical record[s] to Ms. Gurk. See 922 KAR 1:510.
As of today’s date, Ms. Gurk has not returned a completed CHFS-305 form signed by either Mr. Smith or his personal representative. Therefore, she has not yet established her eligibility to receive all the records she requested.
A review of the cited regulations validates this assertion. In 05-ORD-054, a copy of which is attached hereto and incorporated by reference, this office engaged in an exhaustive analysis of the interplay between the relevant provisions of the Health Insurance Portability and Accountability Act of 1996, the Open Records Act, and related state and federal authorities in affirming denials by the CHFS, Office of the Inspector General, and DCBS, Adult Protective Services Branch, of identical requests submitted on behalf of Kindred Hospital for “any and all complaints” related to the treatment of a named patient. Of particular relevance here, this office upheld the decision of APS to condition release of the requested records upon completion of the HIPAA complaint form, or “Form 305,” by the patient or her representative. In our view, the reasoning as to the application of 922 KAR 1:510 is equally determinative on the facts presented.
On appeal, Ms. Gurk focuses primarily on the absence of an explanation for the estimated delay in providing her with access to the records requested. Because the Attorney General has previously addressed the inherent deficiencies of the standard form letter utilized by the CHFS in responding to Ms. Gurk’s request at length, this office will not belabor the point here. On this issue, 05-ORD-134, a copy of which is attached hereto and incorporated by reference, is controlling; the practice currently employed by the CHFS violates both KRS 61.880(1) and KRS 61.872(5). While the volume of requests directed to the CHFS and the nature of the records implicated, in conjunction with the staffing issues the CHFS is apparently faced with, undoubtedly present the CHFS with a unique dilemma, the Open Records Act does not contain a provision extending the statutory deadline for the CHFS or a waiver of the other procedural requirements; only the General Assembly can afford such a remedy. In sum, the response of the CHFS was procedurally deficient but substantively correct.
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.
Gregory D. Stumbo

Attorney General

Michelle D. Harrison

Assistant Attorney General

Distributed to:
Christine L. Gurk

171 Hackworth Lane

Waddy, KY 40076
Debbie Berry, Custodian of Records

Cabinet for Health and Family Services

Department for Community Based Services

31 Mt. Rushmore Court

Shelbyville, KY 40065
Carrie Hall, Open Records Specialist

Division of Protection and Permanency

Cabinet for Health and Family Services

275 E. Main Street, 3E-G

Frankfort, KY 40621
Jon R. Klein

Assistant Counsel

Office of Legal Services

Cabinet for Health and Family Services

275 E. Main Street, 5W-B

Frankfort, KY 40621

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