Confidential KASPER records are not privileged and are discoverable: CABINET FOR HEALTH AND FAMILY SERVICES V. CONWAY, ATTORNEY GENERAL (COA 6/13/2008)

CABINET FOR HEALTH AND FAMILY SERVICES  V. CONWAY, ATTORNEY GENERAL
GOVERNMENT RECORDS:  KASPER Records not privileged; discovery requires in camera hearing
2008-CA-000027
PUBLISHED: OPINION AND ORDER DENYING CR.76.36 RELIEF IN PART AND GRANTING RELIEF IN PART
DATE: 6/13/2008

The Commonwealth of Kentucky, Cabinet for Health and Family Services, petitioned COA to direct the respondent trial court to vacate its order which required it to produce to counsel for Christopher Warner, defendant below, information concerning Matthew Baumler’s prescription drug history contained in its KASPER records.

On the basis of a plain reading of KRS 218A.202(6), the COA wass unable to discern any intent by the General Assembly to elevate the confidential KASPER records to a privileged status and held the statute does not create any privilege regarding KASPER data.

The trial court erred, however,  in ordering the records to be produced directly to Warner’s counsel solely based on a determination that counsel’s arguments provide “good cause for the relief requested” and without undertaking any prior review of the records themselves to establish their relevancy to the subject matter of the action pending before it.  An additional procedural step is required prior to any ordered release of the documents to the parties’ counsel, and the amended order shall require the Cabinet’s Records Custodian to produce the records to the trial court under seal and for its in camera review in order to determine what portion of those records, if any, is relevant to the subject matter at issue and may be released to the parties’ counsel.

By Michael Stevens