Which Louisville EMS demotion and reinstatement records had to be released under Kentucky’s Open Records Act?

Plain-English summary

An employee association and a Louisville paramedic challenged the city’s partial denial of records about her demotion and reinstatement. The Attorney General’s 1992 open-records decision separated the requested documents by what happened to each. The city agreed to make identifiable ambulance-run reports available after redacting patient information, making that dispute moot. It said no complaint or incident report initiating the demotion existed, so it could not produce one. But it had to release the medical director’s memorandum withdrawing the employee’s paramedic authority, his later reinstatement memorandum, and the city memorandum adopting that reinstatement. Other internal preliminary records could remain withheld where they were not adopted as final action.

The AG did not decide access to test results because the original records request had not asked for them. The AG found the city’s response on the test-records issue consistent with the Act. Its refusal to release the O’Brien and Dyer memoranda made the response partly inconsistent overall.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Requesters seeking EMS personnel records

The city’s agreement to release ambulance-run reports after redacting identifying patient information mooted review of the initial refusal. The AG accepted the city’s statement that no complaint or incident report matching that part of the request existed; its review role did not include searching for a suspected missing record. The AG nevertheless required release of the director’s memorandum withdrawing paramedic authority because the city adopted it as the basis for demotion.

City records custodians reviewing preliminary material

The AG distinguished internal opinions and recommendations from records adopted as part of final action. It said internal preliminary records from the later review could remain withheld, but the medical director’s reinstatement memorandum and the city’s memorandum adopting it had to be released. It also noted that access to testing records was outside this appeal because no request for them had been made.

Common questions

Did Louisville have to disclose the medical director’s demotion memorandum?

Yes. The AG said the city adopted the memorandum withdrawing paramedic authority as the basis of its final demotion action, so its preliminary status was lost to that extent.

Were all internal records written before reinstatement public?

No. The AG said internal preliminary documents not adopted in final action could remain exempt. It specifically required release of the director’s reinstatement memorandum and the city memorandum adopting it.

Did the city have to produce a complaint it said did not exist?

No. The AG accepted the city’s statement that no responsive complaint or incident report existed and said its office was not a finder of records for a requester.

What happened to the ambulance reports and test materials?

Review of the ambulance-report denial became moot after the city agreed to provide identifiable reports with patient details redacted. The AG did not rule on test records because they were not part of the original request.

Background and statutory framework

The appeal arose under KRS 61.880 after a request for run reports, complaints, evaluations and correspondence about a paramedic’s demotion. The city invoked KRS 61.878(1)(a) for patient information in ambulance reports, but the AG treated that issue as moot after the city agreed to release redacted reports. The opinion applied the preliminary-record provisions and cited a Kentucky Court of Appeals decision on records adopted in final agency action. The AG concluded that the city’s handling of the request was partly consistent and partly inconsistent with the Act. Its procedural discussion also addressed the city’s written response under the version of KRS 61.880 then in force.

Citations and references

• KRS 61.878(1)(a): privacy ground the city invoked for patient information in ambulance reports.
• KRS 61.878(1)(g) and (h): preliminary-record provisions discussed by the AG.
• KRS 61.878(1)(e): testing exemption raised by the city, without an access ruling on test records.
• KRS 61.880: request and appeal provisions discussed in the decision.
• City of Louisville v. The Courier-Journal & Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982): cited for treatment of preliminary material adopted in final action.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_f1885c45-c23d-4756-acca-761f731116e1/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_f1885c45-c23d-4756-acca-761f731116e1

Original opinion text

OAG 92-5
January 21, 1992
____
Open Records Appeal
File Identification No. 1764
Don Meade_______
Mr. David Leightty
Assistant Director of Law
City of Louisville Department of Law
City Hall, Room 200
Louisville, KY 40202-2771
Dear Mr. Leightty:
On behalf of the Emergency Medical Services Employees Association (EMSEA) and Ms. Sharon Nevitt, Mr. Don C. Meade has appealed to the Attorney General, pursuant to KRS 61.880, your partial denial of his October 17, 1991, request to inspect certain document sin the possession of the City of Louisville. Specifically, Mr. Meade requested access to “all documents, run reports, incident reports, complaints, job evaluation information and correspondence between EMS [Emergency Medical Services] and Dr. O’Brien [Medical Director for EMS] with regard to the Sharon Nevitt demotion.” Mr. Meade explains that Ms. Nevitt was suspended from paramedic status after Dr. O’Brien withdrew his authorization for her to perform the medical procedures associated with that status, and that she was required to undergo retraining to regain her previous status. Assistant Director of Law, Kevin Winstead, responded to Mr. Meade’s request in a letter dated November 4, 1991, partially denying inspection of several documents identified in that request. Relying on KRS 61.878(1)(a), Mr. Winstead denied access to ambulance run reports, explaining that the reports contain personal information relating to patients, including their names, addresses, and the nature of their injuries. Continuing, he denied Mr. Meade’s request for access to correspondence between EMS and Dr. O’Brien pursuant to KRS 61.878(1)(g) and (h), asserting that such correspondence did not represent a complaint against Mr. Nevitt, or final disciplinary action taken, but instead consisted of preliminary recommendations and preliminary drafts, notes and correspondence. Finally, Mr. Winstead denied Mr. Meade’s request for documents generated after Ms. Nevitt’s demotion, including evaluations made during the remediation process, pursuant to KRS 61.878(1)(g) and (h), and test checklist forms, sued by EMS in assessing employee responses to classroom situations, pursuant to KRS 61.878(1)(e). Mr. Winstead did, however, indicate his willingness to release field performance evaluation

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forms and a copy of the memorandum to Ms. Nevitt, advising her of her demotion “to E.M.T. because Dr. O’Brien had pulled his medical authority for her to function as a paramedic.” He was, he explained, unable to release any incident reports or complaints involving Ms. Nevitt since none were filed. In his letter of appeal to this Office, Mr. Meade identifies four areas of dispute: 1.

The denial of employee’s access to reports of ambulance runs in which employee participated (and which latter served as the basis for said employee’s demotion);

2.

The . . .. [failure to disclose] the complaint by EMS which initiated employee’s demotion;

3.

The . . . [failure to disclose] all memoranda and correspondence produced after the final decision to demote said employee;

4.

The . . . [failure to disclose] results and standards of any testing completed with regard to said employee.

It is his position that the City should release the reports of ambulance runs in which Ms. Nevitt participated since nothing in the Open Records Act specifically requires that the confidentiality of those reports be maintained, and any information of a personal nature contained therein can easily be redacted pursuant to KRS 61.878(4). He further argues that “[I]t is believed that the Director of EMS, Richard Bartlett, or Training Director, Ira Dyer, initiated the Medical Director’s scrutiny of Ms. Nevitt, and that pursuant to this complaint the Medical Director caused her demotion.” Citing OAG 87-64, in which this Office held that the public is entitled to inspect a city’s final decision relative to disciplinary proceedings, as well as the complaint which initiated the proceedings, he observes: This opinion clearly mandates that where the city takes a final action or decision pursuant to a complaint, as where Sharon Nevitt was demoted pursuant to the EMS agency’s complaint, then the public ‘is entitled to see the complaint which led to the initiation of such proceedings.’ Mr. Meade thus contends that he must be afforded access to the complaint “which the city is withholding under the guise of a ‘preliminary discussion.’” With respect to memoranda and correspondence generated after the decision to demote Ms. Nevitt, Mr. Meade cites OAG 89-69, in which this Office held that where a state agency adopted “what was originally a preliminary legal memorandum as part of its final action, the legal memorandum was not preliminary as meant by subdivisions (1)(g) and (h) of KRS 61.878.” Based on this decision, Mr. Meade argues that since no official documents was generated relative to Ms. Nevitt’s reinstatement as a paramedic, all post demotion communications and memoranda “fall outside the characterization of

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‘preliminary draft’ or ‘preliminary recommendation.’” In further support of his argument, he cites OAG 90-1, in which this Office held that when there was no indication that the requested documents “were other than final unto themselves, and no subsequent product was generated that the records could be considered preliminary to, they could no longer be treated as preliminary documents.” He again expresses the belief that some documents must exist which “form the basis of Sharon Nevitt’s oral promotion to her previous paramedic status.” Finally, Mr. Meade argues that he must be afforded access to the score Ms. Nevitt received on her retraining tests, as well as the “minimum standards which would be used by the Medical Director to replace her to paramedic status.” Responding to Mr. Meade’s arguments in a letter dated November 26, 1991, you explain that the issue of releasing reports of ambulance runs in which Ms. Nevitt participated has become moot since the city has agreed to release the reports as soon as they are identified and any personal information contained therein redacted. You reiterate that EMS did not receive any “complaints” from members of the public or other individuals regarding Ms. Nevitt’s professional competence, and that therefore no documents exist which would satisfy this portion of Mr. Meade’s request. With respect to correspondence between Dr. O’Brien and the Director of EMS, you indicate that these are “internal documents under which the matter was investigated and action proposed internally, [and] remain exempt from disclosure under subsections (g) and (h).” Similarly, you maintain that documents generated after Ms. Nevitt’s demotion, and prior to her reinstatement, must be treated as preliminary documents and therefore exempt from the application of the Open Records Act. You noted that although Mr. Meade never asked to inspect the personnel action forms reflecting Ms. Nevitt’s reinstatement, he will be permitted access to them upon formal request. Nor, you add, did Mr. Meade request access to test results. You indicate that the city will review such a request in due course, but will not release scoring keys or other examination data pursuant to KRS 61.878(1)(e). Mr. Meade asks that we review the City’s denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that the City’s actions were partially consistent with, and partially inconsistent with, the Open Records Act. OPINION OF THE ATTORNEY GENERAL Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency’s 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. Any agency response denying, in whole or in part, inspection of any

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records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation how the exception applies to the records withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. In addition, KRS 61.880(20 requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General. Your response to Mr. Meade’s request was technically deficient, under the Open Records Act, insofar as you did not reply within three working days. Some eleven workdays elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless timely. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act. Turning to the issues in this appeal, we find that the first issue, whether the City must release the reports of ambulance runs in which Ms. Nevitt participated, has become moot. In a memorandum dated November 6, 1991, Mr. Ira Dyer II advised Ms. Nevitt that she could review any reports or ambulance runs in which she was a participant, after all information identifying the patient who was transported by EMS is redacted. However, Mr. Dyer explained that EMS could not identify which forms may have been sent to Dr. O’Brien during the period in question, since they were not “flagged in any files.” In a conversation with the undersigned on December 19, 1991, you reaffirmed Mr. Dyer’s position, indicating that Mr. Meade and his client would be permitted to inspect any ambulance run report which they could identify as being responsive to their request. The City having, in effect, withdrawn its denial of this portion of Mr. Meade’s request, the issue is mooted. As we noted in AOG 91-140, at p. 4, “[I]f the public records for which inspection or copying is sought is initially denied and then subsequently released, the issue of the propriety of the initial denial becomes moot.” With respect to the second issue raised in this appeal, i.e., the failure of the City to release the complaint by EMS which precipitated Ms. Nevitt’s demotion, we find that the City properly advised Mr. Meade that no such document exists. This Office has previously recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-4; OAG 88-5. We have also recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-4; OAG 88-5. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party believes exist, but which the public agency states do not exist. OAG 86-35. As we observed in OAG 86-35, at p. 5: This office is a reviewer of the course of action taken by the public agency and not a finder of documents or possible documents for the party seeking to inspect such documents. In his November 4 response to Mr. Meade’s open records request, Mr. Winstead stated that no incident reports or complaints exist which satisfy the request. You confirmed this

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in your follow up letter to this office, explaining that the action involving Ms. Nevitt “a snot initiated by means of a complaint.” It is the opinion of this Office that the City properly advised Mr. Meade that this portion of his request could not be satisfied inasmuch as no such records exist. It is, however, our opinion that the City erred in failing to release the memorandum written by Dr. O’Brien which reflects his decision to withdraw Ms. Nevitt’s privilege to practice as a paramedic. As Medical Director for the City of Louisville EMS, Dr. O’Brien is empowered by statute and regulation to “suspend, limit, or terminate a paramedic’s authority to perform skills, procedures or techniques by notification to the paramedic’s provider in writing of such intent.” 201 KAR 9:171 Section 2(3); see also, KRS 311.658. His decision provided the basis for EMS’s action, as you acknowledge at p. 2 of your November 26 letter to this Office: It should be clear that the only action taken by the City of Louisville was to demote Ms. Nevitt to the level of E.M.S. solely because her paramedic credentials had been suspended by the Medical Director, Dr. O’Brien . . . the city has no authority to overrule Dr. O’Brien under state law. Therefore, the city did not act upon a complaint in this matter, but merely, took necessary, steps following the action of Dr. O’Brien. (Emphasis in original). Therefore, although we concur with you in your view that Mr. Meade may not inspect those internal preliminary documents in which opinions are expressed and policies and proposals formulated and recommended, pursuant to KRS 61.878(h), he must be afforded access to the August 16, 1991, memorandum prepared by Dr. O’Brien, and sent to Richard Barlett, Director of the City of Louisville EMS, in which Dr. O’Brien announces his decision to withdraw Ms. Nevitt’s paramedic privileges. Clearly, the City adopted Dr. O’Brien’s memorandum as the basis of its final action, and the document lost is preliminary characterization to that extent. City of Louisville v. The Courier-Journal & Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); OAG 83-41; AG 89-69; OAG 91-90. KRS 61.878(1)(h) authorizes nondisclosure of records containing “[P]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.” The courts, and this Office, have interpreted these provisions on a number of occasions. A review of these opinions demonstrates that although such preliminary records are generally exempt under the open records law, their preliminary status is lost to the extent that they are adopted as part of an agency’s final action. City of Louisville v. The Courier-Journal & Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); OAG 83-41; OAG 89-69. In City of Louisville, supra, the Kentucky Court of Appeals held that subsections (g) and (h) authorized nondisclosure of a report prepared by the Internal Affairs Unit of

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the Louisville Police Department regarding citizen complaints against a police officer. The court reasoned: Internal Affairs . . . has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police. Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief'’ final decision. Of course, if the Chief adopts its notes or recommendation as part of his final action, clearly the preliminary characterization is lost to that extent. City of Louisville, supra, at 659. (Emphasis added.) The court reached the same result in Kentucky State Board of Medical Licensure, supra, holding:
[T]hose documents defined in subsections (g) and (h) which become a part of the records adopted by the Board as the basis of its final action, become releasable as public records under subsection (f) [relating to records of agencies involved in administrative adjudications], unless exempted by other provisions of RKS 61.870 through KRS 61.884. Unless so adopted and made a part of the Board’s final action, such documents shall remain excluded under subsections (g) and (h) of the Act. Kentucky State Board of Medical Licensure, supra, at 956. (Emphasis added.) This Office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agencies’ final action may be withheld from public inspection pursuant to KRS 61.878(1)(g) and (h). OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 91-23. Any such documents that are incorporated into final agency action, however, are public records and must be released. OAG 83-41; OAG 8969. The same logic may be extended to the third issue raised in this appeal, i.e., the nondisclosure of memoranda and correspondence produced after the final decision to demote Ms. Nevitt. While we again concur with you in your view that Ms. Nevitt’s reinstatement to paramedic status was a discreet act occurring in the course of ongoing review, and that any internal, preliminary documents generated prior to the decision to reinstate her remain exempt, it is our opinion that the City erred in failing to release the October 4, 19091, memorandum written by Dr. O’Brien, authorizing her reinstatement, and the memorandum prepared by Mr. Dyer, also dated October 4, 1991, to Richard Bartlett, adopting Dr. O’Brien’s recommendation. The latter document represents final action of a public agency relative to a personnel decision, and the former, the recommendation upon which that decision was based. While we are not persuaded that all

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post demotion memoranda are subject to disclosure, these documents cannot properly be characterized as preliminary in nature, and must be released. As you concede at page 3 of your November 26 letter to this Office, “[T]he City’s reinstatement of Ms. Nevitt to the position of Paramedic was based solely on the Medical Director’s reinstatement of her paramedic authority.” The final issue in this appeal pertains to the failure of the City to release “the results and standards of any testing completed with regard to [Ms. Nevitt].” You correctly not that these were not among the records originally requested by Mr. Meade. We therefore conclude that the City’s response to this portion of his request was consistent with the Open Records Act. Until a request for specific documents has been made, the issue of the propriety of their release is not ripe for review by this Office. We note that in anticipating such a request you have correctly invoked KRS 61.878(1)(e), which authorizes the nondisclosure of test questions, scoring keys, and examination data used to administer a licensing examination, examination for employment or academic examination before the exam is given or if it is to be given again. Nevertheless, we are not empowered to rule on the propriety of nonrelease absent a formal request and denial. As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Don Meade. Both the City and Mr. Meade may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5). Sincerely, CHRIS GORMAN ATTORNEY GENERAL

Amye B. Majors
Assistant Attorney General
c:

Don Meade