COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. 136. SARAH FORTNEY, ADMINISTRATOR OF THE ESTATE OF CLARENCE FORTNEY, DECEASED;
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2008-SC-000509-MR
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY SERVICES
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2008-CA-000027-OA
JEFFERSON CIRCUIT COURT NO . 06-CI-009152
HONORABLE A .C . MCKAY CHAUVIN, JUDGE,
JEFFERSON CIRCUIT COURT
AND
MATTHEW BAUMLER; AND CHRISTOPHER
WARNER (REAL PARTIES IN INTEREST)
APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
Appellant, the Commonwealth of Kentucky, Cabinet for Health and
Family Services, appeals to this Court from an order of the Court of Appeals
denying in part and granting in part its petition for a writ of prohibition . For
the reasons set forth below, the order of the Court of Appeals is reversed, and
the case is remanded with instructions to grant the writ in full as requested by
the Cabinet .
1. Background
This case began with a discovery request by Christopher Warner, a
defendant in a civil suit at the circuit court. Warner sought discovery of a
Kentucky All-Schedule Prescription Electronic Reporting (KASPER) record on
the plaintiff in the suit, Matthew Baumler. These records are held by the
Cabinet for Health and Family Services, which compiles them pursuant to KRS
218A.202 . Subsection (6) of that statute says that these records may be
disclosed "only . . . to persons and entities authorized to receive that data
under this section," and that "[d]isclosure to any other person or entity . . . is
prohibited unless specifically authorized by this section ."
Civil litigants are
not authorized persons under the statute, nor are their attorneys.
The circuit court saw a conflict between this subsection, which prohibits
disclosure, and CR 26 .02(1), which allows discovery "regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending
action." The court resolved this apparent conflict by ruling, via interlocutory
order, that the statute violated the separation of powers doctrine in sections 27
and 28 of the Kentucky Constitution, in that it affected practice and procedure
of the courts, which falls within the exclusive rulemaking power of this Court,
Ky. Const. § 116. After finding that Warner showed good cause that the record
was discoverable, the court ordered that Baumler's record be conditionally
released to Warner's attorney, despite the statutory prohibition .
Appellant sought a writ of prohibition at the Court of Appeals to bar
enforcement of the order to disclose the materials. The Court of Appeals
denied the writ requested by the Cabinet, agreeing with the circuit court that
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the records must be released because the statute violated the separation of
powers doctrine . However, the Court of Appeals granted a writ in part, albeit
not the one the Cabinet requested, requiring the circuit court to first conduct
an in camera review to determine what parts of the records, if any, were
relevant discovery material before allowing any disclosure to the parties.
The Cabinet now appeals to this Court as a matter of right. Ky .
Const. § 115 .
II. Analysis
A. Availability of the Writ
"[W]rits of prohibition . . . are extraordinary in nature, and the courts of
this Commonwealth `have always been cautious and conservative both in
entertaining petitions for and in granting such relief."' Kentucky Employers
Mut. Ins. v. Coleman, 236 S .W.3d 9, 12 (Ky. 2007) (quoting Bender v. Eaton,
343 S.W .2d 799, 800 (Ky. 1961)) . This Court has said that "[exxrraordinary
writs are disfavored, but may be appropriate when a lower court is acting
without jurisdiction or acting erroneously within its jurisdiction ." Buckley v.
Wilson, 177 S.W .3d 778, 780 (Ky. 2005) .
The issue here is not whether the circuit court had jurisdiction to rule on
the constitutionality of KRS 218A .202(6) or to enter a discovery order; it clearly
did . Indeed, the Cabinet does not allege lack ofjurisdiction . Rather, this case
falls under the second class of writs, and so the question is whether the court
acted erroneously within its jurisdiction by allowing discovery of the materials.
To effectuate the policy of granting writs in only extraordinary
circumstances, a petitioner claiming that the trial court is acting erroneously
3
within its jurisdiction must show that great and irreparable harm will result,
and that there would be no adequate remedy by appeal. Hoskins v. Maricle,
150 S.W.3d l, 10 (Ky. 2004) . This test determines whether the remedy of a
writ is even available, and only if a petitioner satisfies this test will we turn to
the merits . Bender, 343 S .W.2d at 801 . In applying this threshold test, the
petitioner's allegations are assumed to be true. Thus, the Court assumes here
that the statute creates a privilege, and that the circuit court's order breaches
that privilege .
Applying the test to these facts, "[t]here is no adequate remedy by appeal
because privileged information cannot be recalled once it has been disclosed ."
St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky. 2005) ; accord
Bender, 343 S .W .2d at 802 ("Once the information is furnished it cannot be
recalled . . . . The injury suffered by petitioners, assuming their adversaries
have no right to this disclosure under the Civil Rules, will be complete upon
compliance with the order and such injury could not thereafter be
rectified . . . . Petitioners have no other adequate remedy.") .
As to the second requirement, however, a breach of privilege is usually
an insufficient showing of harm, at least under the strict terms of the standard,
because the breach is not "a ruinous injury." St. Luke Hosps., 160 S.W .3d at
775 ; accord Bender, 343 S .W .2d at 802 . Nevertheless, "[w)e have previously
held that extraordinary relief is warranted to prevent disclosure of privileged
documents." St. Luke Hosps., 160 S.W.3d at 775; accord McMurry v. Eckert,
833 S .W.2d 828, 830 (Ky. 1992) ; Bender, 343 S .W.2d at 802-03. This Court
has done so under a narrow exception to the harm requirement, namely, the
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"certain special cases" exception where the writ can be granted "in the absence
of a showing of specific great and irreparable injury . . . provided a substantial
miscarriage of justice will result if the lower court is proceeding erroneously,
and correction of the error is necessary and appropriate in the interest of
orderly judicial administration ." Bender, 343 S.W.2d at 801 . The violation of a
privilege is such a case . Id. at 802 (stating, regarding a privilege, that "in a
certain class of cases, of which this is one, the showing of such grievous injury
is not an absolute necessity") ; see also Grange Mut. Ins. Co. v. Trude, 151
S.W.3d 803, 808 (Ky. 2004) (noting that a writ is proper to stop the "breaching
[ol a tightly guarded privilege") .
Thus, because the Cabinet has alleged that the circuit court's order will
violate a privilege, a writ of prohibition is available as a remedy. Having
established that the remedy is available, in part by concluding that the "certain
special cases" exception to the harm requirement applies, this Court may now
turn to the merits of the issues presented. Bender, 343 S.W.2d at 802 .
B. Separation of Powers and Statutory Privileges
The issue presented by the Cabinet is whether, in light of KRS
218A.202(6), a trial court can order discovery of a KASPER report in a civil
case . The Cabinet argues that the statute creates a privilege which bars such
discovery. Warner argues that the statute is void as a violation of the
separation of powers doctrine in the Kentucky Constitution because it affects
practice and procedure of the Court of Justice, and that the statute does not
create a privilege .
Before addressing these arguments, it is worth noting that, under the
civil rules, privileged material is not subject to discovery, regardless of the
source of the privilege . CR 26.02(l) says that a trial court shall allow discovery
"regarding any matter, not privileged, which is relevant to the subject matter
involved in the pending action." (Emphasis added.) The rule, by its own terms,
does not permit discovery of privileged matters . KRE 501 says that privileges
can be granted by the Constitution, rules promulgated by this Court, or by
statute . Thus, Kentucky rules allow for the creation of statutory privileges . To
the extent that the KASPER statute creates a privilege, there is no conflict with
the rules . The circuit court erred in finding such a conflict .
This, of course, does not resolve the issue, because the statute could still
violate the constitution or not actually create a privilege. Turning to those
issues, this Court concludes that the legislature has the power to create
privileges, both under our rules and as part of its inherent power to enact
substantive law, and that the statute indeed creates a privilege .
Kentucky evidentiary rules recognize the ability of the legislature to
control their contents, presumably including privileges, limited only by section
116 of the Kentucky Constitution . For example, this Court must report rule
amendments to the legislature, which may then disapprove the rules or by
inaction allow them to become effective. KRE 1102(a) . In addition, the
legislature "may amend any proposal reported by the Supreme Court," and it
"may adopt amendments or additions to the Kentucky Rules of Evidence not
reported" to them. KRE 1102(b).
More importantly, the legislature has the inherent power to create
privileges, as part of its power to enact substantive law. In fact, it has
exercised this power many times outside of the Rules of Evidence .' The
Kentucky Constitution specifically articulates the doctrine of separation of
powers, see Ky. Const. §§ 27-28, under which the legislature has the exclusive
authority to enact substantive law, see Ky. Const . § 29 ; Elk Horn Coal Corp. v.
Cheyenne Res., Inc., 163 S .W .3d 408, 422 8v n .68 (Ky . 2005), whereas this
Court has the exclusive authority to enact "rules of practice and procedure for
the Court of Justice," see Ky. Const. § 116 ; Elk Horn, 163 S.W.3d at 423 8v
n.69 . It follows, therefore, that if the privilege conferred by the KASPER statute
is substantive law rather than a rule of practice or procedure, it does not
violate the separation of powers doctrine .
The way the Kentucky Rules of Evidence were enacted avoided
determining whether privileges are substantive or procedural . The rules were
There are too many examples to cite in the text. They include: KRS 7.410(3)
(privilege for testimony and records relating to investigation by Office of Educational
Accountability, even against court subpoena) ; KRS 17 .576 (privilege for
communications in sex offender presentence evaluations) ; KRS 197.440 (privilege for
contents of sex offender treatment) ; KRS 215 .556(5), (6) (privilege for all information,
data, and findings related to Kentucky Cancer Registry) ; KRS 224 .1-040(2) (privilege
for environmental audit reports) ; KRS 224 .71-135 ("privilege of confidentiality"
barring disclosure of environmental planning documents of farms) ; KRS 286 .11-033
(certain information the executive director has, under Kentucky Money Transmitters
Act, "shall be confidential by law and privileged, and shall not be subject to the
Kentucky Open Records Act . . . [and] shall not be subject to subpoena, and shall
not be subject to discovery or admissible in evidence in any civil action"); KRS 304 .9280(7)(a) (privilege for insurance documents and other material related to
termination of insurer's agent, specifically barring subpoena, discovery, and
admission in a civil action) ; KRS 311 .619(2), 313.021(3), 314 .171(7) Ss 327 .045(7)
(privilege for information related to impaired physician, dentist, pharmacist, and
physical therapist programs, but also barring disclosure in criminal proceedings) ;
KRS 321 .185(3) (veterinarian-client privilege) ; KRS 325 .431(1) (privilege for
accounting quality review board records and workpapers, barring testimony,
discovery, subpoena, or admission) .
passed by the legislature, see 1990 Ky. Acts ch. 88; 1992 Ky. Acts ch. 324, and
this Court adopted them to the extent that they may have constituted a rule of
practice or procedure, see Order, Kentucky Supreme Court, May 12, 1992 (on
file with the Clerk of the Court) . This Court characterized the adoption of the
rules as a "joint effort," Mullins v. Commonwealth, 956 S .W.2d 210, 211 (Ky.
1997), a polite fiction which recognized that some parts of the rules fell within
the sole purview of the legislature (substantive law), whereas others fell within
the sole purview of this Court (practice and procedure), but avoided fighting
over which was which. This was valuable because deciding which branch has
the power to pass a given rule is rarely easy, see generally Robert G. Lawson,
Modifying the Kentucky Rules of Evidence-A Separation ofPowers Issue, 88 Ky.
L.J . 525 (2000), and is an issue of constitutional magnitude, see Ky. Const. §
28 (forbidding any branch from "exercis[ing] any power properly belonging to
either of the others") . Because of this polite fiction, this Court has rarely
needed to speak authoritatively on the subject . Doing so in this case, however,
is necessary .
Privileges are ultimately substantive law, at least those that apply
outside the courtroom. Although "the bulk of our evidence rules are indeed
procedural, fall within the exclusive rulemaking authority of the Kentucky
Supreme Court, and may not be amended by independent action of the General
Assembly," Lawson, supra, at 572, privileges are not normal evidentiary rules.
They "are unique ." Id. at 576. "In separating evidence law into substance and
procedure, the best scholars draw a distinction between rules that
predominantly foster accuracy in fact-finding and rules that predominantly
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foster other objectives . They classify the latter as substantive and place
privileges in that category." Id. at 580 . The disclosure restrictions in the
KASPER statute fall into this second category: they foster objectives other than
fact-finding, namely, protecting privacy given the confidential and sensitive
nature of the records; limiting the effort and expense of providing discovery at
will that can be obtained from other sources ; and fostering the legislative
purpose of collecting drug prescription data to use to combat doctor shopping,
and thus to ultimately combat drug abuse and addiction. The statutory
restriction on disclosure of KASPER records fosters these objectives, and it
obviously applies outside of the courtroom, unlike a rule of practice or
procedure would .
It has long been assumed that the legislature has the power to create
privileges . In fact, "[t]he General Assembly has exercised authority over
privileges rules for at least several decades ." Lawson, supra, at 580. When
Kentucky reformed its evidence law, various privileges-including the spousal
privilege, the religious privilege, and the psychiatrist-patient privilege-were
creatures of statute, and their validity is not in doubt. Id. "The fact that most
pre-Rules privileges existed in statutes indicates legislative authority to make
privileges ." Robert G. Lawson, Kentucky Evidence Law Handbook § 5 .00[2], at
330 (4th ed. 2004) . Although it is true that the Court rightfully "la[ys] claim to
exclusive authority over matters of `practice and procedure"' under the
Kentucky Constitution, it is quite notable "that the court has had hundreds of
opportunities to claim exclusive authority over privileges and has never made
even a slight movement in that direction ." Id.
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The Court has addressed this issue in only a few cases, but they all show
respect for the legislature's power to make privileges. The first case was
Mullins v. Commonwealth, 956 S .W.2d 210 (Ky. 1997) . In Mullins, the Court
addressed whether the legislature unconstitutionally encroached on the Court's
rulemaking power by creating an exception to the spousal privilege in child
abuse cases. This Court upheld the statute, stating: "We find no constitutional
or procedural fault with the legislation." Id. at 211 . Although the Court did
not directly say that privileges were substantive law, "its decision and
observations seem to chart a course toward the position" and "recognize a most
substantial role for the General Assembly in the definition of evidentiary
privileges ." Lawson, Modifying the Kentucky Rules of Evidence, supra, at 580 .
Since Mullins, this Court has continued to recognize the validity of
statutory privileges. The next case after Mullins, Sisters of Charity Health
Systems ., Inc. v. Raikes, 984 S.W.2d 464, 468 (Ky. 1998), concerned a privilege
for peer review material in medical malpractice suits . This Court upheld the
privilege, but decided that because the statute was enacted before the Rules of
Evidence, the case did not raise "the issue of whether a statutory privilege
enacted after the effective date of the KRE violates the Court's rule making
authority under KRE 1102 ." Id. at 468 n.3 . However, the timing is irrelevant ;
the exclusive power of this Court over rules of practice and procedure has long
been recognized, even before the 1976 Judicial Article . Either the statutory
privilege encroached on this Court's exclusive power or it did not. In Raikes
the Court concluded that it did not.
The matter was clarified in Manns v. Commonwealth, 80 S.W .3d 439 (Ky.
2002) . In Manns, the Court discussed a statutory provision creating a privilege
for juvenile records. Id. at 444 . The Court noted that "[t]he confidentiality
afforded to juvenile records was created by the legislature, KRS 610 .340(1), not
the judiciary," id., but did not strike down the provision . However, in the same
case, the Court struck down another statutory provision, which mandated that
trial courts admit certain impeachment evidence, because that law purported
to amend a rule which was "procedural in the purest sense ." Id. at 446 . The
Manns case thus follows the scholarly consensus : rules that "predominantly
foster accuracy in fact-finding" by affecting what happens inside a courtroom
(such as mandatory admissibility of impeachment evidence) are procedural and
within the exclusive authority of the Court; however, those that "predominantly
foster other objectives" and have an out-of-court effect (such as keeping
juvenile records confidential due to privacy concerns) are substantive and
within the power of the legislature . Lawson, Modifying the Kentucky Rules of
Evidence, supra, at 580 . Given that the KASPER statute fosters a similar
privacy objective and has a similar out-of-court effect to the statute as in
Manns, that case supports the holding here that the statutory grant of privilege
in KASPER is substantive and does not encroach on the Court's powers over
practice and procedure .
This Court disagrees with the Court of Appeals that the legislature
showed no intent to create a privilege when it prohibited disclosure of KASPER
records . The essence of a privilege is to prohibit disclosure, and thus also
discovery. The privileges in the Kentucky Rules of Evidence, with the exception
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of the husband-wife privilege, refer to the "[g]eneral rule of privilege," which is
defined as the right "to refuse to disclose and to prevent any other person from
disclosing" the privileged information . 2 KRE 503(b), 505(b), 506(b), 507(b) ; see
also KRE 508(a) . This is precisely what the KASPER statute does : it expressly
prohibits "[d]isclosure to any person or entity . . . unless specifically authorized
by this section," including "disclosure in the context of a civil action where the
disclosure is sought either for the purpose of discovery or for evidence."
KRS 218A.202(6) .
Although the intent of the legislature certainly would have been more
perfectly expressed if the statute specifically described the prohibition on
disclosure as a "privilege," this Court does not generally require statutes to use
magic words . See, e.g., Commonwealth ex rel. Conway v. Thompson, 300
S .W .3d 152, 166-67 8v n.41 (Ky. 2009) . This Court cannot meaningfully
distinguish this grant of privilege from many others the courts have long
recognized and applied in civil cases, including the clergy-penitent privilege,
KRE 505 ; the counselor-client privilege, KRE 506 ; and the psychotherapistpatient privilege, KRE 507-in addition to the many other statutory privileges .
The KASPER statute prohibits disclosure and discovery, just as any privilege
would .
This Court also disagrees with the Court of Appeals that the exceptions
to the prohibition on disclosure raise doubts about the legislature's intent to
create a privilege . Most privileges in the rules of evidence also include
2 The husband-wife privilege, in contrast, is the right "to refuse to testify." KRE 504(a)
8v (b) .
12
exceptions. See KRE 503(d) (listing five exceptions to the attorney-client
privilege) ; KRE 506(d) (listing two exceptions to the counselor-client privilege) ;
KRE 507(d) (listing three exceptions to the psychotherapist-patient privilege) .
Likewise, almost all statutory privileges include exceptions .3 These privileges
should not be cast aside simply because they are not absolute by their own
terms .
Likewise, it is no answer that KASPER cannot invoke a privilege because
the right to refuse to disclose is held by the Commonwealth, not the person
whose privacy is at stake . Our evidentiary rules include the confidential
informant privilege, which is exercised not by the informant who seeks to keep
his identity secret, but by "the public entity to which the information was
furnished ." KRE 508(b) . This privilege, like all the others except the spousal
privilege, refers to the "general rule of privilege," indicating that this privilege is
the same as the others . Indeed, this Court has never doubted the validity of
the confidential informant privilege on this basis .
3 Again, there are too many examples to cite in the text . They include : KRS 7.410(3)
(exception for disclosure with permission of Office of Educational Accountability or
after investigation) ; KRS 17 .576 (exception for sex offender evaluation
communications in sentencing proceedings or if communication relates to ongoing
criminal investigation) ; KRS 197.440 (exception for sex offender treatment
applications in sentencing, ongoing criminal investigations, or determining whether
offender should continue treatment) ; KRS 215.556(5) (exception for disclosure to
other agencies or clinical facilities); KRS 224.1-040(3), (4) (exceptions for
environmental audit reports) ; KRS 224 .71-135 (exception for disclosure to
government officials, where the farm is a "bad actor," or after in camera review shows
illegal activity) ; KRS 286 .11-033 (exception for disclosure if the head of the
Department of Financial Institutions is not prejudiced or in regulatory actions); KRS
304.9-280(7)(b) (exception for disclosure to federal and state insurance authorities) ;
KRS 311 .619(3), 313 .021(3), 314 .171(7), 315 .126(8) & 327.045(8) (exceptions for
disclosure of privileged information related to impaired physician, dentist,
pharmacist, and physical therapist programs for treatment, reporting to professional
boards, or with consent, some of which also have exceptions for court orders) ; KRS
321 .185(3) (exception to veterinarian-client privilege for court order or waiver) .
13
The exceptions in the statute are rather limited and do not undermine
the general prohibition on disclosure . For example, a pharmacist may receive a
record only on a certification that it will be used "for the purpose of providing
medical or pharmaceutical treatment to a bona fide current patient." KRS
218A. 202(6) (e) . As another example, peace officers may receive a record only if
they are "engaged in a bona fide specific investigation involving a designated
person," KRS 218A.202(6)(b), and they can only share records with other peace
officers if the recipients could get the records on their own, and even then only
if both officers document who received the records and when. Id.
Subsection (12) of the statute leaves no doubt that the legislature wanted
the disclosure prohibitions to be taken seriously. Under that subsection, any
intentional, unauthorized disclosure is a Class D felony for the first offense and
Class C for each subsequent offense. (That a violation of the statute's
disclosure prohibition is a criminal offense further underscores the statute's
substantive nature.) In short, the legislature's intent to create a privilege in the
statute is clear enough, and it obviously found the privilege to be important.
The only way to conclude that the legislature did not have the power to
make a privilege here is if it is unconstitutional. As discussed above, the
privilege is constitutional under the separation of powers doctrine because it is
an enactment of substantive law. However, as this Court has recently held, the
privilege may be unconstitutional as applied in some criminal cases . Cabinet v.
Bartlett, 2010 WL 997374, --- S .W.3d --- (Ky. 2010) . This is because no statute
can defeat a criminal defendant's constitutional rights to exculpatory evidence
or to confront witnesses against him. See generally Commonwealth v. Barroso,
14
122 S .W .3d 554, 558-63 (Ky. 2003) . To summarize Bartlett, to the extent that
the statute purports to prohibit the government from disclosing potentially
exculpatory information in a criminal case, it would violate a criminal
defendant's rights under the Fifth, Sixth and Fourteenth Amendments to the
U.S . Constitution and Section 11 of the Kentucky Constitution . Bartlett, 2010
WL 997374, at *2-3. These constitutional rights must be vigorously protected
by courts. However, as noted above, this applies only to certain discovery in
criminal cases, and it does not require striking the entire statute down as
unconstitutional .
As to civil matters, there is a lesser constitutional protection . Procedural
due process in a civil case generally requires only notice, an opportunity to be
heard and to present evidence, an impartial tribunal, and a decision on the
record for appeal. See generally Goldberg v. Kelly, 397 U.S . 254, 267-71
(1970) . There is no due process right to get all possible evidence in the civil
context, which has long been shown by the use of evidentiary privileges, first at
common law, then as codified by rule or statute. Consequently, unlike in the
criminal context, no constitutional bar precludes courts from applying the
KASPER privilege in civil disputes such as this one. In fact, if this Court were
to ignore the statutory restrictions in KASPER, this Court would itself violate
the separation of powers doctrine by ignoring a valid statutory grant of
privilege, which is within the legislature's purview.
Last, it is worth noting that even if this Court were to find that KRS
218A.202 infringed on this Court's exclusive authority to promulgate rules of
practice and procedure, the statute would nevertheless be entitled to comity.
15
"It is not our disposition to be jealous or hypertechnical over the boundaries
that separate our domain from that of the legislature ." Ex parte Farley, 570
S .W .2d 617, 624 (Ky. 1978) . Thus this Court accepts "reasonable
encroachments" on our powers via the "rule of comity." Commonwealth v.
Reneer, 734 S .W.2d 794, 797 (Ky. 1987) . Any alleged encroachment here
would be reasonable . Despite the statute, parties to civil suits may still get
information about a person's prescription drug history from more direct
sources: physicians who prescribe drugs, pharmacists who dispense them, or
from the drug recipient. What they cannot do is get the more convenient
compilation of records the Cabinet has . The statute does not ultimately
prevent a civil litigant from getting discovery of drug histories, nor does it
ultimately prevent a court from deciding to admit the histories into evidence.
This is reasonable .
As a final note, this Court must make it clear, however, that such
information as that which falls under the KASPER privilege is no different than
any other privileged material when it comes to the court's power and ability to
obtain that material. The court always has the inherent authority to review
any act of the legislature for constitutionality, and the content of materials or
data produced based on a statute to determine whether an exception to a
privilege applies. Here, however, there is no question that the material at issue
is the very report made privileged by the statute, and as the parties admit, no
exception applies . Thus there is no need for an in camera review in this case .
III. Conclusion
The legislature has the power to create privileges, such as to KASPER
records, both from our own rules and from their inherent power to enact
substantive law. Thus, the Court of Appeals erred in finding that the statute
violated the separation of powers doctrine . The KASPER statute creates a
privilege as to KASPER records, which the circuit court's discovery order would
violate . For that reason, the order of the Court of Appeals is reversed and
remanded, with instructions to issue the writ requested to bar enforcement of
the circuit court's discovery order.
Cunningham, Schroder and Venters, JJ ., concur. Scott, J ., concurs by
separate opinion . Abramson, J., dissents by separate opinion in which Minton,
C .J ., joins .
SCOTT, J ., CONCURRING OPINION: I concur with the majority's opinion
reversing the Court of Appeals and granting the Cabinet for Health and Family
Services a writ protecting its KASPER data from discovery in civil actions.'
Given the great need of today's society to combat the evils of "doctor shopping"
and prescription drug abuse, both at a practitioner and patient-level - and
balancing this need against the fact that the KASPER database is merely a
' Being a civil action, no question is presented as to "whether the constitutional rights
afforded to a criminal defendant by the Fifth, Sixth, and Fourteenth Amendments to
United States Constitution and section 11 of the Constitution of Kentucky prevail
over a state policy interest expressed in a statute or rule creating an evidentiary
privilege." Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky. 2003) . In Barroso,
we ultimately concluded "that the Compulsory Process Clause affords a criminal
defendant the right to obtain and present exculpatory evidence, including
impeachment evidence, in the possession of a third party that would otherwise be
subject to . . . privilege." Id. at 561 . Thus, the issues presented herein differ from
those presented by a pending companion criminal case, Commonwealth ofKentucky,
Cabinet for Health and Family Services v. Hon. Gregory M. Bartlett, Judge, Kenton
Circuit Court, et al., 2008-SC-000508 .
17
mandatory partial compilation from otherwise existing medical and
pharmaceutical records, the discovery of which is not in any way impeded by
KASPER - I, too, would uphold the validity of KRS 218A.202 under our longestablished rule of accepting "reasonable encroachments" upon our powers via
the "rule of comity ." Commonwealth v. Reneer, 734 S .W.2d 794, 797 (Ky. 1987)
("Although it is apparent that K.R.S . 532 .055 constitutes an encroachment by
the General Assembly upon the prerogatives of the Judiciary, it is,
nevertheless, not an unreasonable encroachment if it can be accepted under
the principles of comity.") . Thus, I would grant the writ, as "the mere
possibility of disclosure may impede development of the confidential
[relationships and uses] necessary" for KASPER to attain its full promise.
Jaffee v. Redmond, 518 U .S . 1, 10 (1996). Moreover,
if the purpose of the privilege is to be served, the participants in
the confidential [uses and relationships] "must be able to predict
with some degree of certainty whether particular [divulgences] will
be protected. An uncertain privilege, or one which purports to be
certain but results in widely varying applications by the courts, is
little better than no privilege at all."
Id. at 18 (quoting Upjohn Co. v. United States, 449 U .S. 383, 393 (1981)) .
In so doing, I recognize this Court's previous pronouncements that "[a]ny
amendment to [the Rules of Evidence] must be in accordance with KRE § 1102 .
Therefore, a unilateral attempt to amend [any] rule is a nullity."2 Manns v.
2
"The proper procedure for amending or adding to the Kentucky Rules of Evidence is
established in KRE 1102 and 1103 . These procedures do not include amendments
or additions created unilaterally by either the General Assembly or the Supreme
Court (although we are aware that the General Assembly has enacted post-1992
statutes which purport to create new privileges, e.g., KRS 325.431 [(Accounts Review
Commission reports)], KRS 224 .01-040 [(Environmental Audit reports)]," and KRS
422 .295 (confidentiality of communications between human trafficking victim and
case worker) . Weaver v. Commonwealth, 955 S.W.2d 722, 727 (Ky. 1997) . Where
18
Commonwealth, 80 S .W.3d 439, 446 (Ky . 2002) . "Nevertheless, it has not been
the policy of this court to nullify as a matter of course all legislation which
infringes to some extent upon a proper function of the judiciary ." Reneer, 734
S .W.2d at 796. In fact, "[i]t is not our disposition to be jealous or
hypertechnical over the boundaries that separate our domain from that of the
legislature," Ex parte Farley, 570 S.W.2d 617, 624 (Ky. 1978), as "[w]e respect
the legislative branch, and in the name of comity and common sense are glad
[at times] to accept without cavil the application of its statutes pertaining to
judicial matters . . . ." Id.
"Inevitably, there is and always will be a gray area in which a line
between the legislative prerogatives of the General Assembly and the rulemaking authority of the courts is not easy to draw. The policy of this court
[then] is not to contest the propriety of legislation in [an] area to which we can
accede through a wholesome comity." Ex parte Auditor ofPublic Accounts, 609
S.W .2d 682, 688 (Ky. 1980) . "While the Constitution diffuses power the better
to secure liberty, it also contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its branches separateness
but interdependence, autonomy but reciprocity.' United States v. Nixon, 418
U.S . 683, 707 (1974) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S . 579, 635 (1952) (Jackson, J., concurring)) . Thus, where constitutional,
practical, and beneficial, we should act with comity for the public good .
this "shared power" resides in the Kentucky Constitution is, however, a question yet
to be answered.
19
In addition, "[a] public interest privilege inheres in certain official
confidential information in the care and custody of governmental entities . This
privilege permits appropriate parties to protect information from ordinary
disclosure, as an exception to liberal discovery rubrics." In re World Trade
Center Bombing Litigation, 709 N.E.2d 452, 455 (N .Y. 1999) . "Specifically, the
privilege envelops `confidential communications between public officers, and to
public officers, in the performance of their duties, where the public interest
requires that such confidential communications or the sources should not be
divulged.' The justification for the privilege is that the public interest might
otherwise be harmed if extremely sensitive material were to lose this special
shield of confidentiality. Id. at 456 (emphasis added) (citations omitted) .
"Whether the privilege attaches in a particular setting [such as a criminal
matter] is [, at times,] a fact-specific determination for a fact-discretion
weighing court, operating in camera, if necessary. The public interest, and
what adds up to sufficient potential harm to it, [can be] inherently flexible
concepts." Id. And, "'[o]nce it is shown that disclosure would be more harmful
to the interests of the government than [nondisclosure would be to] the
interests of the party seeking the information, the overall public interest on
balance would then be better served by nondisclosure.' Id. (citations omitted).
"Notably, [however,] a mere showing by a private litigant in a civil case
that information sought would be helpful to secure `useful testimony' is not
enough to override a demonstrated or manifest potential harm to the public
good . Rather, a court must calibrate the need of a litigant for information with
the government's duty to try to prevent similar occurrences and to maintain
20
the public peace and welfare ." Id. (citations omitted) . The analysis may also
"take into account the extent to which pertinent information is available to
plaintiffs from other public sources . . . ." Id.; see also Newsome v. Lowe, 699
S .W .2d 748, 752 (Ky. 1985) ("Counsel for respondent quite candidly admitted
at the oral argument on this petition that obtaining Dr. Nathanson's letter
would possibly enable him to impeach Dr. Nathanson at trial . While this would
qualify as a legitimate and worthy aim, we do not believe that it is a showing of
a substantial need under the rule .") .
Here, the Plaintiff, Baumler (real party in interest) sued the Defendant,
Warner (also a real party in interest) seeking personal injury damages for
Warner's alleged negligence in causing the automobile accident. In the process
of discovery, Warner obtained records from several of Baumler's medical
providers . These records indicated that Baumler (1) routinely ran out of his
pain medication before his prescription was ready to be refilled, (2) claimed on
at least two occasions that his medication had been stolen, (3) was discharged
from the care of at least one physician for violating his pain management
protocol, and (4) had a history of cocaine use .
The discovery quite candidly raises the issue of whether Baumler
fabricated or exaggerated his injuries in order to obtain drugs, and whether
Baumler has a predisposition to narcotic pain medications . Additionally, as
explained in oral argument, Baumler's medical and health insurance records
indicate that he has been treated by a number of physicians in addition to
those disclosed by his interrogatories. This again presents the issue of whether
all of Baumler's treating physicians have been correctly identified .
21
Warner then filed a motion to obtain a KASPER report from the Cabinet
documenting Baumler's prescription drug history. The trial court granted the
motion directing the disclosure by the Cabinet subject to the restrictions that
such disclosure "may be used by counsel for litigation or claims for valuation
purposes only and in connection with the trial of this matter and [is] not to be
disclosed to anyone who is not involved in this litigation ." The Cabinet then
intervened and filed a motion to vacate the order on the ground that KRS
218A.202(6) prohibits the disclosure of KASPER reports "in the context of a
civil action where the disclosure is sought either for the purpose of discovery or
for evidence."
Warner responded with the argument before this court that subsection
(6) of KRS 218A.202 violates the separation of powers provisions of the
Kentucky Constitution, which assigns to this Court the power to describe the
rules of practice and procedure for the Court of Justice. See Ky. Const. § 116
("The Supreme Court shall have the power to prescribe rules governing . . .
rules of practice and procedure for the Court of Justice.") . The privacy of
prescription drug records being a matter of great public importance, the
Attorney General sought intervention in support of the constitutionality of KRS
218A.202(6) .
However, as aforementioned, KASPER is merely a partial compilation of
mandatory reports from medical providers and pharmacists from existing
patient medical and pharmacy records. The data collected by KASPER
includes a patient identifier, the drug dispensed, the date of dispensing, the
quantity dispensed, the prescriber, and the dispenser. KRS 218A.202(4) .
22
Pursuant to the statute, the Cabinet is authorized to provide KASPER data only
to those persons or entities specifically authorized to receive that data by
statute . KRS 218A.202(6); see also Williams, 213 S.W .3d at 683 ("KASPER
data is not available to the general public, but rather only to specified
personnel who certify that they are conducting `a bona fide specific
investigation involving a designated person .') . Civil litigants, whether in
personal injury, dissolution, or similar actions, are not authorized by the
statute to access KASPER . In fact, the legislature made intentional disclosure
a violation of the statute a Class D Felony for the first offense. KRS
218A .202(12) .
In allowing the discovery requested, the trial court found a conflict
between its obligation to oversee discovery pursuant to CR 26.02(l) and the
Cabinet's obligation to protect the confidentiality of KASPER records . CR
26 .02(l) provides that a trial court shall permit discovery "regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action . . . ." Thus, for reasons that this Court now recognizes the
privilege, there is no conflict between KASPER, KRS 218A.202, and CR
26 .02(1) .
In this respect, the facts of this case demonstrate that recognition of
such a privilege will only minimally impact Warner's discovery, if at all. Warner
has already discovered the medical, pharmaceutical, and health insurance
records, creating an issue, or inference, as to whether Baumler fabricated or
exaggerated his injuries in order to obtain drugs, or whether Baumler has a
predisposition to narcotic pain medication . And Warner has already
23
discovered through these same records a number of physicians with whom
Baulmer treated that were not disclosed by Baumler's answers to
interrogatories .
Plainly, therefore, KRS 218A .202(b) does not interfere with Warner's
traditional rights of discovery of medical, pharmaceutical, and health insurance
records. In fact, KASPER is merely a compilation of entries reflected in these
traditional records for all covered Kentucky medical providers and pharmacists .
Noting that the accident occurred in Jefferson County, one must acknowledge
that even KASPER would not answer Warner's questions regarding physicians
and pharmacists who may have treated Baumler in Illinois, Indiana, or Ohio .
Thus, even denying the privilege would not add the appreciable range of
certainty Warner suggests.
Moreover, aside from the confidentiality and legal protection promised to
the participating medical providers and pharmacists, the disclosure of the
KASPER data, whether accurate or inaccurate, is such to cause, at times,
embarrassment - all the more when totally disconnected from the medical
treatment and records which document the prescription and need for
treatment. This, itself, raises the likelihood of the ultimate inadmissibility of
KASPER data. Nevertheless, should KASPER data become the "next great
discovery tool," as advocated by Warner, for civil litigation, "the mere possibility
of [such] disclosure may impede development of the confidential relationship
necessary for [the underlying] treatment." Jaffee v. Redman, 518 U.S . l, 10
(1996) . It is clear that "an asserted privilege must also `serv[e] public ends .'
1d. at 11 (quoting Upjohn, 449 U.S. at 389) . Here, the purpose and promise of
24
KASPER undoubtedly does just that: the eradication of "doctor shopping,"
prescription fraud, as well as attacking the prescription drug abuse crisis
affecting Kentucky .
We must be mindful that the Kentucky General Assembly and other
"state legislatures are fully aware of the need to protect the integrity of the
factfinding functions of [the] courts," Jaffee, 518 U.S . at 13, and that the
privilege for KASPER data is necessary to both the public need and scheme of
KRS 218A.202, as evidenced by the General Assembly's enactment and
pronouncements . Thus, weighing the public benefit versus the detriment to
private civil litigants, the balance must be struck for the public good, given that
the detriment, if any, to civil litigants, as here, is miniscule : KASPER in no way
affects or restricts any discovery of existing medical, pharmaceutical, and
health insurance records.
For these reasons, I concur with the majority on the privilege set out in
KRS 218A.202 and the granting of the writ .
ABRAMSON, J ., DISSENTING : I respectfully dissent. The writ action
before us presents an important issue of governmental branch authority that
transcends the mere question of the discoverability or admissibility of data
maintained in the Kentucky All-Schedule Prescription Electronic Reporting
(KASPER) system . As the majority correctly notes, the tension that has always
existed in the area of evidentiary privilege between the judicial branch as the
keeper of "practice and procedure" and the legislature as creator of substantive
law remains even after the 1992 adoption of the Kentucky Rules of Evidence
(KRE) through a cooperative effort of this Court and the Kentucky General
25
Assembly . Today's majority opinion deems evidentiary privileges wholly
substantive and hands the future of those important legal principles over to the
unilateral action of the legislature. Professor Robert Lawson in his thoughtprovoking article, Modifying the Kentucky Rules of Evidence-A Separation of
Powers Issue, 88 Ky. L .J. 525 (2000), contends that privileges are the subject of
much scholarly debate but that the "better" analysis deems them substantive,
as opposed to procedural, in nature . He then acknowledges that "should [the
Kentucky Supreme Court] get to that destination [i.e ., the conclusion that
privileges are wholly substantive] the court would conclude that the provisions
in Article V, [KRE] Rules 501 through 511, may be amended by independent
actions of the General Assembly ." Id. at 580-81 . Thus, as we address the writ
petition before us the overriding issue of the future development of evidentiary
privileges looms large . I believe, as other courts have held, that certain
evidentiary concepts and rules have both procedural and substantive elements
and that the proper resolution of these difficult issues involves both the courts
and the legislature, just as we wisely recognized in 1992 with the joint adoption
of the KRE . With recognition of the far-reaching consequences of any
principles regarding privileges articulated in this case, I turn to the specifics of
the issue before us.
I. The KASPER System and the 2007 Amendment Regarding Civil Actions
In 1998, the General Assembly enacted House Bill 115, which, in
pertinent part, established what has come to be known as the KASPER system,
"an electronic system for monitoring Schedules II, III, IV, and V controlled
substances" dispensed within the Commonwealth . The Bill's KASPER
26
provisions have been codified at KRS 218A .202, and under that statute for
each of the listed controlled substances dispensed, licensed medical
practitioners and pharmacists are required to report to the Cabinet for Health
and Family Services (Cabinet) the patient, the drug, the date of dispensing, the
quantity, the prescriber, and the dispenser . The computerized database
compiled from this information enables the Cabinet to identify persons
prescribing, dispensing, or receiving what appear to be unusually large
amounts of the controlled substances . The statute then further authorizes the
Cabinet to provide that information in certain circumstances to licensing
authorities, to practitioners, to peace officers, to grand juries, and to courts .
1 In pertinent part subsection (6) of KRS 218A.202 provides that:
"The Cabinet for Health and Family Services shall be authorized to provide data to :
(a) A designated representative of a board responsible for the licensure, regulation,
or discipline of practitioners, pharmacists, or other person who is authorized to
prescribe, administer, or dispense controlled substances and who is involved in a
bona fide specific investigation involving a designated person ;
(b) A Kentucky peace officer certified pursuant to KRS 15 .380 to 15 .404, a certified
or full-time peace officer of another state, or a federal peace officer whose duty is to
enforce the laws of this Commonwealth, of another state, or of the United States
relating to drugs and who is engaged in a bona fide specific investigation involving a
designated person ;
(c) A state-operated Medicaid program ;
(d) A properly convened grand jury pursuant to a subpoena properly issued for the
records;
(e) A practitioner or pharmacist who requests information and certifies that the
requested information is for the purpose of providing medical or pharmaceutical
treatment to a bona fide current patient;
(fl In addition to the purposes authorized under paragraph (a) of this subsection,
the Kentucky Board of Medical Licensure, for any physician who is:
1 . Associated in a partnership or other business entity with a physician who is
already under investigation by the Board of Medical Licensure for improper
prescribing practices ;
2 . In a designated geographic area for which a trend report indicates a
substantial likelihood that inappropriate prescribing may be occurring ; or
27
As originally enacted in 1998, the statute made clear that the KASPER
data was to remain confidential . The Bill provided expressly that "[t]he data
and any report obtained therefrom shall not be a public record," KRS
218A.202(8) (1998), and further deemed the knowing disclosure of data to
unauthorized persons a class D felony. The original Bill did not, however,
purport to remove KASPER data or records from the discovery provisions of
either the civil or the criminal rules .
In 2007, the General Assembly amended KRS 218A.202. In pertinent
part, Senate Bill 88 purported to prohibit disclosure of KASPER data to any
unauthorized person or entity, "including disclosure in the context of a civil
action where the disclosure is sought either for the purpose of discovery or for
evidence." KRS 218A.202(6) (2007) . This amendment, passed nine years after
3 . In a designated geographic area for which a report on another physician in
that area indicates a substantial likelihood that inappropriate prescribing may be
occurring in that area ;
(g) In addition to the purposes authorized under paragraph (a) of this subsection,
the Kentucky Board of Nursing, for any advanced registered nurse practitioner who
is:
1 . Associated in a partnership or other business entity with a physician who is
already under investigation by the Kentucky Board of Medical Licensure for improper
prescribing practices ;
2 . Associated in a partnership or other business entity with an advanced
registered nurse practitioner who is already under investigation by the Board of
Nursing for improper prescribing practices ;
3 . In a designated geographic area for which a trend report indicates a
substantial likelihood that inappropriate prescribing may be occurring; or
4 . In a designated geographic area for which a report on a physician or another
advanced registered nurse practitioner in that area indicates a substantial likelihood
that inappropriate prescribing may be occurring in that area ; or
(h) A judge or a probation or parole officer administering a diversion or probation
program of a criminal defendant arising out of a violation of this chapter or of a
criminal defendant who is documented by the court as a substance abuser who is
eligible to participate in a court-ordered drug diversion or probation program ."
28
the adoption of the KASPER system, is the focus of the writ action before this
Court.
II. The Underlying Case and the Writ Action
This writ action arose when the Cabinet objected to a discovery demand
filed by Christopher Warner, a defendant in an action now pending in the
Jefferson Circuit Court. The plaintiff in that action, Matthew Baumler, seeks
damages from Warner, for allegedly having injured him in a motor vehicle
collision . In the course of discovery, Warner acquired evidence tending to show
that Baumler has extensively used prescription pain medicine and has been
discharged from the care of at least one physician for violating pain
management protocols. Eyeing a possible defense that Baumler has made false
or exaggerated claims in hopes of acquiring additional drugs, Warner sought
Baumler's KASPER record as a likely source of additional, relevant evidence of
Baumler's use and possible misuse of those drugs.
The Cabinet, as noted, resisted Warner's discovery request, but the trial
court upheld it. In denying the Cabinet's motion to preclude the discovery of
Baumler's KASPER record, the trial court ruled that Warner had made an
adequate showing of relevance under CR 26 and rejected the General
Assembly's 2007 amendment to the KASPER statute as an unconstitutional
legislative encroachment upon a procedural matter lying within the judicial
branch's exclusive control.
The Cabinet immediately sought a writ from the Court of Appeals to
prohibit the discovery, but the Court of Appeals affirmed the trial court. It held
that to the extent that the 2007 amendment of the KASPER statute purported
29
to remove KASPER records from discovery in civil cases it violated the
separation of powers provisions of Sections 27 and 28 of the Kentucky
Constitution and Section 116's grant of exclusive control over matters of
practice and procedure to the judicial branch. That court acknowledged,
nevertheless, the confidential nature of the KASPER records, and ordered that
before Baumler's records could be released to Warner, the trial court was to
inspect them in camera and ensure that they did in fact contain relevant
matter discoverable under the civil rules .
III. The 2007 Amendment Created a "Privilege"
This Court now reverses the Court of Appeals and grants the
Cabinet a writ prohibiting any discovery of Baumler's KASPER record . To
arrive at this result the Court begins by redefining the issue. Whereas the
Court of Appeals saw the 2007 KASPER amendment as conflicting with the
discovery rules, this Court notes, correctly, that Kentucky Rule of Civil
Procedure (CR) 26, which defines the scope of discovery, expressly excludes
from what is potentially discoverable matters that are privileged. The 2007
KASPER amendment precluding discovery of KASPER records created a
privilege, the Court holds, and, thus, denying access to those records comports
with CR 26 . The question becomes not, as the Court of Appeals believed,
whether the General Assembly has the authority to rewrite the discovery rules,
but rather whether it has the authority to create a privilege exempting KASPER
records from the reach of those rules . This reframing of the question, a
preliminary matter with which I largely agree, relocates the separation of
powers issue but does not solve it. We must now decide whether the purported
30
KASPER privilege impermissibly encroaches upon our authority to make and
oversee the rules of evidence, rules which, like the discovery rules, are
generally regarded as procedural. Commonwealth v. Alexander, 5 S.W.3d 104,
106 (Ky. 1999) ("The admissibility of evidence is governed by the Kentucky
Rules of Evidence and is procedural in nature.") .
The majority has decided that the KASPER privilege does not violate the
separation of powers for essentially two reasons. First, according to the
majority, KRE 501, the general rule regarding privileges, confers upon the
General Assembly an unfettered authority to create statutory privileges .2
Second, and even more radically, the majority concludes that while the rules of
evidence may in general be procedural, privileges are different, indeed unique,
in that they are matters of substantive law. Privileges, therefore, fall
exclusively within the General Assembly's constitutional bailiwick, and the
KASPER privilege thus does not implicate separation of powers concerns at all.
Needless to say, this latter conclusion turns on its head the traditional
understanding in our law, as reflected in our evidence rules and our cases, that
privileges are disfavored, that they are at least in significant part procedural,
and that courts have authority to oversee them . In the majority's new world
order, this tradition is jettisoned and authority to exempt from the duty to
2 KRE 501 provides that "Except as otherwise provided by Constitution or statute or
by these or other rules promulgated by the Supreme Court of Kentucky, no person
has a privilege to:
(1) Refuse to be a witness;
(2) Refuse to disclose any matter;
(3) Refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing
any object or writing."
31
provide evidence or testimony is lodged exclusively in the General Assembly,
subject only, apparently, to rational basis review . I profoundly disagree with
this position.
To begin, I should note again that I do agree, although with some
reservation, with the majority's reframing of the issue as one concerning the
creation of a privilege. The Court of Appeals declined to view the issue that
way on the ground that had the General Assembly intended to create a
privilege it would have said so expressly.3 Although the Court of Appeals is
correct that courts should be grudgingly slow to read privileges into the' law, I
nevertheless agree with the majority that the 2007 amendment to the KASPER
provision was meant to accord a privilege to KASPER records and reports . The
KASPER materials had always been confidential, so the 2007 amendment must
have been intended to add something beyond confidentiality. That something
was the provision that KASPER data was not to be disclosed "when sought for"
civil discovery or trial, and, as the majority correctly notes, the right to refuse
and to prevent disclosure in that context is the essence of a privilege . The
KASPER privilege, however, is unlike the lawyer-client, husband-wife, and
other testimonial privileges in Article V of our Rules of Evidence, privileges that
protect certain confidential communications between parties in special
relationships . The only personal relationship remotely at issue in KASPER
3 All of the KRE Chapter V privileges, for example, are referred to expressly as
privileges, and the General Assembly has referred expressly to privileges in several
statutes . See, e.g., KRS 17.576 (creating a limited privilege for communications
made in the course of sex-offender treatment) ; KRS 224 .01-040 (creating privilege for
environmental audits) . There was some ground, then, for the Court of Appeals'
conclusion that a "privilege" was not the General Assembly's intent here.
32
materials is the physician-patient relationship and the KASPER privilege does
not, and clearly was not intended to, foster frank communication between
physicians and patients. The KASPER data includes virtually none of what is
communicated in that relationship, and the possibility that KASPER data
might be subject to discovery is not at all likely to interfere with a physicianpatient relationship .
As Justice Scott correctly notes in his concurrence, the KASPER privilege
is more like privileges other courts have recognized that protect official
information. Even here, though, the likeness is quite limited . Like the
traditional privileges, the official information privilege is most often applied to
protect communications, either deliberative communications between
government officials, or, as with the informant's privilege in our KRE 508,
communications between the government and third parties. See Mark S.
Wallace, Discovery of Government Documents and the Official Information
Privilege, 76 Colum . L. Rev. 142 (1976) . The KASPER privilege, on the other
hand, does not foster internal decision making, nor does it encourage third
parties to come forward with information . Indeed, there is no "official"
information at all in the KASPER system which, in essence, is a database of
non-privileged information available from other sources albeit no single source.
At most, the KASPER privilege protects the privacy of those whose pharmacy
records have been collected . This may be a legitimate governmental interest,
but it is far from the vital interest that traditionally has been thought to justify
the sort of absolute privilege the Cabinet claims and the majority has upheld .
See, Developments in the Law-Privileged Communications, Part VI. Institutional
33
Privileges, 98 Harvard L. Rev. 1592, n . 1 (1985) . Thus, though I agree with the
majority and Justice Scott that the 2007 KASPER amendment was intended to
render KASPER records and reports privileged, I do not agree that that
conclusion gets us very far, for we must still ask to what extent the privilege
can be recognized consistently with the separation of powers, and, if
recognized, how it is to be construed . I part company with my colleagues over
those significant questions. As stated above, I do not agree that privileges are
purely matters of substantive law outside this Court's authority to regulate
practice and procedure and I do not agree that the General Assembly's
unilateral enactment of this privilege was authorized by our KRE . Moreover,
unlike Justice Scott, I do not agree that comity justifies our recognition of an
absolute privilege for KASPER reports.
IV. Kentucky Case Law Does Not Support Allowing the Legislature
Exclusive Control of Privileges As a Matter of Substantive Law
The majority purports to find support for its conclusion that "the
legislature has the inherent power to create privileges, as part of its power to
enact substantive law" in our cases. The cases it relies on, however,
specifically, Mullins v. Commonwealth, 956 S.W.2d 210 (Ky. 1997) ; Sisters of
Charity Health Systems, Inc. v. Raikes, 984 S .W.2d 464 (Ky. 1998) ; and Manns
v. Commonwealth, 80 S .W.3d 439 (Ky. 2002), in no way support or even
suggest a conclusion that discovery and evidentiary privileges are substantive
matters under the exclusive control of the General Assembly . On the contrary,
in each of these cases this Court was confronted with statutes purporting to
create or to modify an evidentiary rule or privilege-the spousal privilege in
34
Mullins, a privilege for hospital peer-review materials in Sisters of Charity, and
in Manns rules permitting the use of juvenile records at trial for certain
purposes of impeachment and sentencing . In each of these cases, this Court
cither expressly held or strongly indicated that its authority over such matters
was primary.
In Manns, we expressly held that amendments to KRS 532 .055
purporting to establish the admissibility at trial of a defendant's juvenile record
violated the separation of powers and invalidly encroached upon the Court's
exclusive authority to oversee the rules of practice and procedure . We struck
down a portion of the statute as inconsistent with our rules concerning the
impeachment of witnesses, and granted comity to a portion that was consistent
with our rules under which the jury may be apprised at sentencing of a
defendant's prior convictions. We noted in an aside that this latter portion of
the statute altered nothing but the General Assembly's own prior legislation
which makes juvenile records confidential, and thus provided no ground for
withholding comity . The Court today latches on to that aside as somehow
conferring authority on the General Assembly to govern privileges, but of
course it does no such thing. The Manns Court was presented with no issue
concerning the General Assembly's authority to create a privilege for juvenile
records, and its holdings have nothing to do with that question. Manns, on the
contrary, demonstrates that the rules of evidence, no less than the rules of
procedure, are, for the most part at least, within the Court's Section 116
exclusive practice-and-procedure authority.
35
Mullins demonstrates the same point with express reference to privileges .
In Mullins, we granted comity to KRS 620.050(2), which purported to abrogate
the husband-wife privilege of KRE 504 in child abuse cases . Although the
Court's separation of powers discussion is terse, to say the least, we explained
that the constitutional problem was avoided because, properly understood, the
privilege did not extend to child-abuse cases anyway . Given that the statute
was thus consistent with the evidence rule, there was no reason to withhold
comity. By invoking comity, however, the Court clearly indicated that KRS
620 .050(2), and by extension privileges in general, are within the judicial
practice-and-procedure preserve . The Mullins opinion does not "chart a
course" toward abdicating our responsibility to oversee evidentiary privileges,
and it is only by ignoring its comity holding that the Court today can say
otherwise.
In Sisters of Charity, finally, the Court had before it KRS 311 .377(2)
which purported to create a discovery privilege for hospital peer-review records.
No separation of powers issue was raised, and the Court expressly held that no
other constitutional question need be addressed because even assuming the
statute's validity, it did not apply to the malpractice action in which it had been
invoked . Further, the Court noted that because KRS 311 .377(2) predated the
rules of evidence, it did not implicate KRE 1102, the rule governing
amendments to the KRE following their 1992 enactment. To be sure, the
Court's discussion presumes that at the time the statute was enacted the
General Assembly had the authority to create the privilege at issue, and in
dicta the Court stated that "we agree with the dissent that the General
36
Assembly could have enacted a statute extending the peer review privilege to
medical malpractice actions." 984 S .W.2d at 470 . The fact remains, however,
that none of those separation of powers issues was actually before the Court,
and so again, Sisters of Charity is not authority for a proposition that it
expressly declined to address.
Notably, in Sisters of Charity, the Court subjected the assumed-to-be
valid peer review privilege statute to "the nearly universal rule that privileges
should be strictly construed." 984 S.W.2d at 468. That strict construction
rule developed in the context of common law privileges, and by applying it to a
statutory privilege this Court clearly indicated, not, as the majority would have
it, that privileges are purely matters of substantive law within the wide
discretion of the legislature, but rather that statutory privileges no less than
the privileges defined now in the KRE are subject, at the very least, to
searching judicial oversight. This is another aspect of Sisters of Charity that
the majority inexplicably overlooks .
The majority also ignores Weaver v. Commonwealth, 955 S .W.2d 722 (Ky.
1997) . In Weaver, we struck down a "police surveillance privilege" that the
Court of Appeals had adopted in Jett v. Commonwealth, 862 S .W .2d 908 (Ky.
App. 1993) . That privilege does not appear among those recognized in Article V
of our Kentucky Rules of Evidence, and we explained that since the 1992
enactment of the rules the proper procedure for amending or adding to the
rules, including privilege rules such as the one at issue, was established in
KRE 1102 and 1103 . "These procedures," we stated, "do not include
amendments or additions created unilaterally by either the General Assembly
37
or the Supreme Court (although we are aware that the General Assembly has
enacted post-1992 statutes which purport to create new privileges.)" 955
S .W .2d at 727. Putting aside for the moment the Weaver Court's construction
of KRE 1102 and 1103, this statement makes it clear that the mere fact that
the General Assembly has enacted privilege statutes does not establish its
authority to do so, and it makes more than clear, that this Court has not held,
has not endorsed, has not suggested and has not intimated that privileges are
matters of substantive law within the exclusive purview of the General
Assembly . In short, our case law has in no way foreshadowed today's majority
opinion .
V. The Kentucky Rules of Evidence Do Not Support the Unilateral Role
Which the Majority has Granted the Legislature as to Privileges
The majority's reliance on our evidence rules is no less problematic . KRE
501 is the general rule concerning privileges and it is a rule of limitation . It
provides that no person has a discovery, evidentiary, or testimonial privilege
except as provided "by Constitution or statute or by these or other rules
promulgated by the Supreme Court of Kentucky ." The majority maintains that
the "or statute" phrase recognizes the General Assembly's substantive
authority to create statutory privileges . Although I agree that the rule plainly
contemplates a legislative role in the creation of privileges, the majority's
reading, which in essence would allow the General Assembly carte blanche to
create and alter privileges, fails to account for the fact that the rule just as
plainly is meant to limit privileges and just as plainly contemplates a judicial
role in their creation, a role that would not comport with a regime in which
38
privileges were deemed purely matters of substantive law. KRE 501 is more
complex than the majority allows, and that complexity is reflected in how the
Rules of Evidence were enacted.
Again, our current Kentucky Rules of Evidence were jointly enacted by
this Court and by the General Assembly in 1992 . The joint enactment was
apparently meant to obviate contentious questions concerning the boundary
between the Court's exclusive authority over matters of practice and procedure
and the General Assembly's authority over matters of substantive law. As was
observed by the Court in Sisters of Charity, supra, the enactment of Article V
incorporated therein existing statutory privileges not repealed in conjunction
with the enactment. 984 S .W .2d at 468 n . 3 . That incorporation does not, as
the majority asserts, imply anything about the prior validity of those statutes
because it was precisely questions about prior validity that the Court and the
General Assembly agreed to avoid by the joint enactment. The Court, in
essence, granted those statutes comity, while the General Assembly, without
conceding their invalidity, agreed to their becoming part of the rule . Since
then, as the Court observed in Weaver, the General Assembly has purported to
adopt new privileges, but until now we have not been asked to determine their
constitutional status . That determination requires that we consider not merely
KRE 501, but KRE 1102 and 1103 as well, for those are the rules governing, or
meant to govern, how the evidence rules can be added to our otherwise
amended.
Unfortunately, the majority devotes only three sentences to those rules,
which are in serious need of elucidation by this Court. Although not a model of
39
clarity, perhaps, KRE 1102 essentially says that both the Court and the
General Assembly may amend the rules to the extent that the Constitution
gives them authority to do so, i. e., that the Court may amend the rules
governing practice and procedure and the General Assembly the rules, if any,
that are substantive .4 The rule recognizes that neither body has any ultimate
veto power over the other's exercise of its constitutional role, but KRE 1102
plainly contemplates that neither this Court nor the General Assembly will
exercise its amending authority without proposing the change to the other .
Approached in this way, turf disputes could be resolved prior to enactment .
These reporting provisions are apparently what Justice Cooper had in mind in
Weaver when he wrote for the Court that amendments or additions to the rules
of evidence could not be created unilaterally by either the General Assembly or
4
KRE 1102 provides as follows:
"(a) Supreme Court. The Supreme Court of Kentucky shall have the power to
prescribe amendments or additions to the Kentucky Rules of Evidence .
Amendments or additions shall not take effect until they have been reported to the
Kentucky General Assembly by the Chief Justice of the Supreme Court at or after
the beginning of a regular session of the General Assembly but not later than the
first day of March, and until the adjournment of that regular session of the General
Assembly; but if the General Assembly within that time shall by resolution
disapprove any amendment or addition so reported it shall not take effect . The
effective date of any amendment or addition so reported may be deferred by the
General Assembly to a later date or until approved by the General Assembly.
However, the General Assembly may not disapprove any amendment or addition or
defer the effective date of any amendment or addition that constitutes rules of
practice and procedure under Section 116 of the Kentucky Constitution .
(b) General Assembly. The General Assembly may amend any proposal reported by
the Supreme Court pursuant to subdivision (a) of this rule and may adopt
amendments or additions to the Kentucky Rules of Evidence not reported to the
General Assembly by the Supreme Court. However, the General Assembly may not
amend any proposals reported by the Supreme Court and may not adopt
amendments or additions to the Kentucky Rules of Evidence that constitute rules of
practice and procedure under Section 116 of the Constitution of Kentucky.
(c) Review of proposals for change. Neither the Supreme Court nor the General
Assembly should undertake to amend or add to the Kentucky Rules of Evidence
without first obtaining a review of proposed amendments or additions from the
Evidence Rules Review Commission described in KRE 1103 ."
40
the Supreme Court. 955 S.W.2d at 727. See also, Manns, supra, (where the
Court, again through Justice Cooper, indicated that the General Assembly's
purported "unilateral amendment of KRE 609 . . . violated both Section 28 [of
the Kentucky Constitution] and KRE 1102(b)) .
If KRE 1102 does indeed foreclose unilateral additions to the evidence
rules, then the 2007 amendment creating the KASPER privilege is invalid on
that ground alone, quite apart from the separation of powers question . The
majority presumes otherwise, apparently, but its failure to address expressly
the Weaver court's concern does a disservice, as it leaves in limbo the meaning
of the KRE 1102 and 1103 reporting provisions . 5 At the very least, it seems to
me that those provisions create a procedure by which the General Assembly
can, by seeking the Court's concurrence in statutes that bear importantly on
evidentiary matters, assure itself that the legislation will be upheld. Obviously,
as the majority's long list of privilege statutes attests, the General Assembly
can act, and has acted, outside of that carefully crafted, cooperative procedure.
But when it does so the results are subject, or should be in my view, to
searching separation of powers review and a strict construction that ensures
consistency with the existing rules of evidence. In any event, given the
statements in KRE 1102 and 1103 that this Court and the General Assembly
would cooperate in amending the rules of evidence, and given the fact that KRE
501 limits privileges and recognizes the Court's role in creating them, I strongly
5
KRE 1103 provides for an "Evidence Rules Review Commission" chaired by the Chief
Justice and including among its members the chairpersons of the House and Senate
Judiciary Committees . The Commission's function is to review proposals by either
this Court or the legislature for the amendment of or addition to the KRE as
contemplated by KRE 1102 .
41
disagree with the majority's reading of that latter rule as conferring on the
General Assembly an unlimited authority to create privileges at will .
V. Privileges Are Not Purely Matters of Substantive Law
The majority's attempt to find support in our case law and in our rules
for its decision to deem privileges purely substantive and thus the domain of
the legislature is strained, in my view. The real basis for the majority's
conclusion that the General Assembly has sole responsibility to oversee the
rules of privilege is the aforementioned article by Professor Lawson, a principal
drafter of the Kentucky Rules of Evidence. Professor Lawson discusses a
longstanding scholarly debate concerning the common law testimonial
privileges-the attorney-client privilege, the spousal privilege, and most
recently the psychiatrist-patient privilege, to name a few-and whether or not
they are truly procedural given that, unlike most other rules of evidence, their
primary purpose is not to advance the reliability of the court's truth finding,
but rather to protect certain relationships that depend, if their full benefits are
to be realized, on frank and unfettered communicattonn 6
Professor Lawson sides with those who regard those privilege rules as
substantive, and I fully agree with Professor Lawson and with the majority, that
the privilege rules do indeed contain a large substantive component. As
6 It bears noting that the KASPER privilege before us has none of the attributes of
these time-honored, personal privileges about which Professor Lawson wrote in
concluding privileges were primarily substantive, reflecting policy which "should be
left to forums that are closer to the public than the courts." Lawson, Modifying the
Kentucky Rules ofEvidence, 88 Ky L.J . at 579 . There is no personal relationship
involved in the KASPAR database; indeed, the vast majority of Kentuckians are
probably unaware that their controlled substance records are collected by the
government and maintained in a centralized database. Certainly, those same
Kentuckians have no frank and unfettered communications with the Cabinet .
42
Professor Lawson concedes, however, scholarly opinion is divided over the
meaning of that fact. In the view of some writers, however substantive a
privilege rule may be, "the law of privilege is at least half procedure, for a truthseeking interest is being weighed against a truth-obstructing interest ."
Lawson, 88 Ky. L .J . at 578 n . 302 {quoting from Ronan Degnan, The Feasibility
ofRules of Evidence in Federal Courts, 24 F .R .D . 341, 347 (1959)) .
The privilege rules are not unique in this regard, moreover, for many of
the rules of evidence address substantive concerns . Evidence of plea
negotiations, KRE 410, or settlement discussions, KRE 408, is not admissible,
for example, not because it is unreliable, but to permit such negotiations to
proceed forthrightly . Evidence of certain remedial efforts, KRE 407, or certain
offers to pay medical expenses, KRE 409, is not admissible, again not because
it is unreliable but to encourage such remediation and payments . Lawson, 88
Ky. L.J . at 581-85 . The statute at issue in Manns was adopted to further socalled victims' rights, another substantive purpose . It has been suggested,
even, that there are few if any rules of evidence that do not in some manner
serve a substantive purpose . Seisinger v. Siebel, 203 P.3d 483, 498 (Ariz . 2009)
(Eckerstrom, Judge, concurring in part) . I know that the majority does not
intend to turn the rules of evidence entirely over to the General Assembly, but
its holding in this case opens the door at least to the prospect of our having to
parse the rules individually to determine if they are "essentially" substantive or
"essentially" procedural. That task seems to me as misguided as it is hopeless,
for all of the just-mentioned rules, whatever their substantive component, by
defining the evidence available for discovery or admissible at trial, clearly strike
43
at the judicial system's core function of providing a crucible in which the truth
may be discerned . These rules are to that considerable extent procedural.
Rather than engage in a parsing exercise that even the scholars have found
irresolvable, better, it seems to me, simply to acknowledge that some, perhaps
many, of the rules of evidence are both substantive and procedural. Readenour
v. Marion Power Shovel, 719 P.2d 1058, 1062 (Ariz. 1986) (noting that the
statute before it was "similar to a privilege statute, having both procedural and
substantive aspects .") ; Busik v. Levine, 307 A.2d 571, 578 (N .J . 1973) (noting
that some parts of the law, at least, are not "divided neatly between `substance'
and `procedure . ')
Because all evidentiary matters are indisputably procedural in part, we
cannot, under our constitutional duty to oversee procedures, allow the General
Assembly exclusive authority to define what evidence is privileged . We may,
however, and under KRE 1102 we are encouraged to, defer to substantive
legislative judgments concerning the use or exclusion of relevant evidence in
the interests of public policy. Cf. Readenour, supra, (deferring in this way to a
statute limiting the admissibility of evidence of remedial actions) . Outside the
cooperative procedure established by KRE 1102, the General Assembly remains
free, then, to enact evidentiary statutes, such as the 2007 KASPER privilege,
but those enactments must not conflict with the existing rules or with the
Court's ultimate responsibility to ensure procedures that provide litigants with
a meaningful opportunity to prove their claims or defenses .
The absolute privilege the Cabinet urges on us, and the majority
upholds, fails that separation of powers test. It is not consistent with any of
44
our KRE Article V privileges nor with our general duty, as noted above in the
discussion of Sisters of Charity, to construe privileges narrowly so as to
minimize the seriously adverse affects they have on the courts' ability to fulfill
their vital truth-finding role. As Justice Scalia noted in his dissent in Jaffee v.
Redmond, 518 U.S. 1 (1996), absolute privileges, which by their nature exclude
reliable and probative evidence, can exact a stinging price :
For . . . the victim [of the rule] is . . . likely to be some
individual who is prevented from proving a valid
claim-or (worse still) prevented from establishing a
valid defense. The latter is particularly unpalatable for
those who love justice, because it causes the courts of
law not merely to let stand a wrong, but to become
themselves the instruments of wrong.
Id. at 19 (Justice Scalia, dissenting) . Neither the Cabinet, the majority, nor
Justice Scott has identified any interest an absolute KASPER privilege serves
that would justify so high a price. To the extent, then, that we are asked to
construe the 2007 KASPER amendment as creating an absolute privilege,
impenetrable except in criminal cases,? the amendment in my judgment
impermissibly encroaches upon the judicial function and is invalid .
We are, of course, to construe statutes if possible so as to uphold their
constitutionality. Yanero v. Davis, 65 S .W .3d 510 (Ky. 2001) . I agree with
Justice Scott that it is possible to construe the KASPER privilege in such a way
as to validate it. Justice Scott correctly notes that the New York courts
recognize what they refer to as a "public interest" privilege, Colgate Scaffolding
& Equipment Corp. v. York Hunter City Services, Inc., 787 N.Y. S .2d 305 (App .
7 In Commonwealth, Cabinet for Health and Family Services v. Bartlett,
S .W.3d
2010 WL 997374 (Ky. 2010), we recently held that the KASPER privilege must yield
to a criminal defendant's due process rights.
45
,
Div. 2005), which is similar to the "official information" privilege recognized by
the federal courts. King v. Conde, 121 F.R.D. 180 (E .D .N .Y. 1988) . As noted,
those privileges permit the government and its agencies to refuse to disclose
sensitive governmental information. Id. I agree with Justice Scott that the
KASPER privilege is best understood as a statutory invocation of some such
broader official information privilege, although as stated above, there is really
no "official" information in the traditional sense because KA.SPAR is simply a
collection of confidential, although not privileged, medical information
available elsewhere.$
Where it has been recognized, however, the official information privilege,
or its kin, is not an absolute privilege but a qualified one. Colgate Scaffolding,
supra; King v. Conde, supra. That is to say, that application of the privilege
requires a balancing of the interests opposing and seeking disclosure, with the
initial burden on the government to make "a substantial threshold showing
that disclosure of specific information would result in specific harm to
identified important interests ." King, 121 F.R.D . at 190 . See also, Colgate
Scaffolding, 787 N.Y. S .2d at 346 ("`Public interest encompasses not only the
needs of the government, but also the societal interests in redressing private
8 Plaintiff Baumler placed his medical condition in controversy when he filed the
underlying negligence action seeking damages including pain and suffering. The
Cabinet's suggestion that the availability of Baumler's KASPAR information from
other sources undermines Defendant Warner's request to the Cabinet is mystifying to
me. The very fact that the data collected by KASPER is available elsewhere and
should have been disclosed by Baumler himself underscores the rather pointless
nature of this particular privilege perceived by the majority as absolute.
Contributing to this impression of an unorthodox privilege is the virtual laundry list
of people who can access the information, see n. 1, supra, right down to the rookie
peace officer who simply needs to state he is "engaged in a bona fide specific
investigation involving a designated person . . ." KRS 218A.202 (6)(b) .
46
wrongs and arriving at a just result in private litigation .' Therefore, to avoid
abuse of the [public interest] privilege, specific support is required to invoke it."
(citation omitted)) . Not only is construing such institutional privileges as
qualified privileges the approach of the courts with experience in this area, but
it is also the approach dictated by our duty to construe privileges narrowly.
Sisters of Charity, supra.
Perhaps most importantly, the plain language of the 2007 amendment to
the KASPER statute supports a narrow privilege; it prohibits disclosure in a
civil action "where the disclosure is sought either for the purpose of discovery
or for evidence ." KRS 218A.202(6) . Narrowly read, it prohibits a litigant from
simply serving a subpoena ("sought for . . . discovery") or, stated bluntly,
engaging in the proverbial fishing expedition . But, significantly, it does not
purport to prohibit a court order. The latter involves a neutral arbiter, the
judge, having determined that the Cabinet's interest in its data collection must
yield to the litigant's interest in specific relevant evidence. This is the essence
of a qualified privilege, one in which courts on a case-by-case basis balance the
relative interests. Trial courts in other jurisdictions, faced with official
information-type privileges, have been entrusted to make those nuanced calls
and our Kentucky trial courts can be similarly trusted .
In so noting, I obviously acknowledge the confidential nature of the
KASPER data, the disclosure of which, I agree with Justice Scott, should not
generally be made public and should be reasonably restricted . Where Justice
Scott and I part company, is his suggestion that were the KASPER privilege to
be construed as a qualified privilege its application here would necessarily
47
require nondisclosure . That, of course, would be a decision for the trial court
in the first instance, but, as noted above, the initial burden in resolving the
privilege claim would lie, not as Justice Scott suggests, with Warner, the
requesting party, to show that he could not obtain the KASPER information
from some other source, but rather with the Cabinet to show that disclosure of
the specific information Warner seeks would result in genuine harm to an
important interest . Thus far, neither the Cabinet nor the Attorney General, as
amicus curiae, has made any such showing. Along with the majority, they
make only general assertions about the need to keep individuals' controlled
substance prescription histories private . While this is a legitimate privacy
interest, it is by no means a crucial one and, indeed, has little to recommend it
where the individual whose privacy interest the Cabinet is concerned about has
himself placed his medical history in issue by virtue of his complaint. Also, as
both the majority and Justice Scott acknowledge, medical records, including
prescription records, are not otherwise privileged but are discoverable in civil
litigation. it is hard to see, therefore, how the discovery of Baumler's KASPER
record would harm in any way whatever, if any, limited interest Baumler
continues to have in keeping this information private. Given the general
discoverability of medical records, moreover, it is simply fanciful to suggest that
the possibility that a person's KASPER record might be revealed in the course
of litigation would in any way inhibit a person's legitimate use of controlled
substances .
Justice Scott also suggests that the discovery of KASPER records will in
some unspecified way impede or undermine the important regulatory purposes
48
of the KASPER program. Again, though, how the discovery of one individual's
KASPER record might hamper the Cabinet's ability to screen prescription
activity broadly is by no means apparent, and, as noted, the initial burden is
on the Cabinet to specify how its regulatory purposes would be frustrated by
disclosure, a burden it has not even attempted to meet. Were we to construe
the KASPER amendment as creating only a qualified privilege, therefore, a
result in which I could concur, the Cabinet would not be entitled to a writ. It
would at most be entitled to a remand for a determination of whether it had
properly invoked the privilege in this case, and if so, whether its asserted
interests in nondisclosure outweighed Warner's interest in discovery.
Finally, the Cabinet and the Attorney General worry that without the
absolute privilege the Cabinet asserts, KASPER records would become subject
to routine fishing expeditions by civil litigants. This concern, however, was
adequately addressed by the Court of Appeals. As that Court noted, CR 26.02
limits discovery to matters that are relevant, thus necessitating an initial
showing by the would-be discoverer that there is a specific reason to believe
that KASPER data could have a genuine bearing on the case. The mere hope
that something might turn up in the KASPER records is not enough and would
not result in an order by the circuit court nor compel any response by the
Cabinet. In the case underlying this writ action, Warner is not on a mere
fishing expedition, however. He has shown that Baumler has a significant
history of obtaining controlled pain medications, a history that could well bear
on Baumler's motive for suing Warner and perhaps Baumler's damages.
Baumler's KASPER report, which could shed additional light on his drug use or
49
drug-seeking behavior, is, at the very least, potentially relevant. To further
protect the Cabinet's KASPER data, however, the Court of Appeals, invoked CR
26.03, which permits the courts to fashion protective orders in order to prevent
discovery from becoming unduly burdensome . Pursuant to this rule, the Court
of Appeals remanded with instructions : the trial court was to inspect
Baumler's KASPER report in camera and was not to disclose it to Warner
unless it did in fact contain relevant information . This remand order
thoroughly protected the Cabinet against unwarranted release of its data and
demonstrates that the absolute privilege the majority has acquiesced in is as
unnecessary as it is contrary to the proper role of this Court as overseer of the
rules of practice and procedure .
CONCLUSION
Professor Lawson, in his 2000 law review article, noted that when courts
are slow to exercise rule-making powers, legislatures jump quickly into the
vacuum . He criticized, justifiedly, this Court's failure at that time to exercise
its authority to amend and supplement the KRE, to mobilize the Evidence
Rules Review Commission provided for in KRE 1103 and to pursue joint
amendment efforts with the General Assembly as provided for in KRE 1102 .
The Court's failure to give the proposed amendment process of KRE 1102 and
1103 a fair test, he warned, had permitted the legislative addition
of totally unwarranted privileges that lie in wait for an
opportunity to impair the search for truth in an
important case. . . . [And make it] highly probable that
the General Assembly will move well beyond the
privileges area and pose a far greater threat to the
integrity and efficiency of the Rules than we have seen
so far.
50
Lawson, 88 Ky. L.J . at 588-89 . Today we are presented with a clear instance of
"deleterious effects . . . upon the search for truth in litigation," id. at 589, if we
do not exercise our Section 116 authority to construe the KASPER privilege as
a qualified one, subject to the weighing powers of a trial court on a proper
showing by a litigant .
The 1992 adoption of the KRE was a d6tente of sorts, a path to the
appropriate resolution of the substantive/ procedural quandary that has
bedeviled courts and scholars for decades. KRE 1102 provides the framework
for that ideal approach, one we would be well-served to address with our
General Assembly for it is undoubtedly true that the legislature, of necessity,
will recognize and seek to address important privilege issues of which the
Supreme Court is not yet aware . I view the KASPER privilege as the
legislature's attempt to address one of those newly found issues despite the
fact that the privilege language did not appear until nine years after the
KASPER system was created . Whether we give a nod to the substantive nature
of the privilege and then narrowly construe the simple words (which again do
not prohibit court orders) as constituting a qualified privilege or, alternatively,
insist the 2007 amendment is predominantly procedural but grant comity to it,
again focusing on the narrowest reading of the language, as a qualified
privilege, the result is the same. Although not a product of the carefully
drafted, unrealized promise of the cooperative process outlined in KRE 1102
and KRE 1103, the result is a qualified privilege rule that respects the
important role of both the Court and the General Assembly in matters that are
51
inherently both substantive and procedural . Because the majority has lost
sight of that balance and abdicated the Court's vital role in overseeing rules of
evidentiary privilege, I must respectfully dissent.
Minton, C.J ., joins .
COUNSEL FOR APPELLANT:
Ronald W. Crawford
Cabinet for Health 8v Family Services
Office of Legal Services
275 East Main Street, 5W-B
Frankfort, Kentucky 40601-2321
APPELLEE:
Honorable Arch Cox McKay Chauvin
Judge, Jefferson Circuit Court
9th Floor, Judicial Center
700 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR MATTHEW BAUMLER, REAL PARTY IN INTEREST:
William Philip Koehler, III
600 West Main Street
Suite 100, 2nd Floor
Louisville, Kentucky 40202
COUNSEL FOR CHRISTOPHER WARNER, REAL PARTY IN INTEREST:
Kenneth P. O'Brien
Sewell and Associates
1800 One Riverfront Plaza
401 West Main Street
Louisville, Kentucky 40202-2927
COUNSEL FOR AMICUS CURIAE, COMMONWEALTH OF KENTUCKY,
OFFICE OF THE ATTORNEY GENERAL:
Jack Conway
Attorney General
Ryan M. Halloran
Jennifer B . Hans
Tad Thomas
Assistant Attorneys General
Office of the Attorney General
700 Capitol Avenue
Capitol Building, Suite 188
Frankfort, Kentucky 40601-3449
COUNSEL FOR AMICUS CURIAE, KENTUCKY DEFENSE COUNSEL:
Gerald R. Toner
O'Bryan, Brown 8v Toner, PLLC
1500 Stark Building
455 South Fourth Street
Louisville, Kentucky 40202
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