Kansas Attorney General Opinion 1992-057

ROBERT T. STEPHAN
ATTORNEY GENERAL
April 23, 1992
ATTORNEY GENERAL OPINION NO. 92- 57
Timothy J. Chambers
Reno County Attorney
Law Enforcement Center
210 W. 1st St.
Hutchinson, Kansas 67501
Re: Public Health -- Secretary of Health and
Environment, Activities; General Powers and
Functions -- Reporting to Local Health Authority as
to Infectious or Contagious Diseases;
Confidentiality of Information; Disclosure
Procedure, Civil -- Rules of Evidence; Privileges
-- Physician-Patient Privilege; Confidentiality of
Information; Disclosure
Synopsis: A county health department may not be required to
disclose information regarding an individual's
treatment for venereal disease when such
information is intended to be used by the state as
evidence in a prosecution for indecent liberties
with a child. Cited herein: K.S.A. 1991 Supp.
38-1514; K.S.A. 38-1554; K.S.A. 1991 Supp. 60-427;
K.S.A. 65-118; 65-427; K.A.R. 28-1-2.
Dear Mr. Chambers:
As county attorney for Reno county, you ask whether the
Reno county health department is required to disclose
information regarding an individual's treatment for venereal

disease when such information is intended to be used by the
state as evidence against that individual in the prosecution
for indecent liberties with a child, a class C felony. More
specifically, you ask whether the disclosure of such
information falls within an exception to the doctor-patient
confidentiality privilege, K.S.A. 1991 Supp. 60-427, or within
an exception to the infectious or contagious disease
confidentiality provision of K.S.A. 65-118.
In general, communications between a physician and patient are
confidential. The patient holds a privilege to refuse to
disclose or to prevent a witness from disclosing information
transmitted between the physician and patient in a civil
action or in a prosecution for a misdemeanor. K.S.A. 1991
Supp. 60-427. However, there is no privilege as to
information which the physician or the patient is required to
report to a public official or as to information required to
be recorded in a public office, unless the statute requiring
the report or record specifically provides that the
information shall not be disclosed. K.S.A. 1991 Supp.
60-427(e). As venereal diseases are considered to infectious
or contagious diseases (K.A.R. 28-1-2), information indicating
that a person is suffering from a venereal disease is required
to be reported to a public official, i.e. the county or
joint board of health or a local health officer, pursuant to
K.S.A. 65-118(a). Such information is confidential and may
not be disclosed or made public, upon subpoena or otherwise,
with five exceptions. K.S.A. 65-118(c). The only exception
potentially applicable to your question is, "if the
information to be disclosed is required in a court proceeding
and the information is disclosed in camera." K.S.A.
65-118(c)(5).
While information pertaining to an individual's treatment of
venereal disease may be required by the state in an indecent
liberties prosecution, pursuant to K.S.A. 65-118 such
information may only be disclosed in camera, i.e. in
private to the judge. K.S.A. 65-118 does not make such
information admissible evidence in the prosecution of an
indecent liberties case. It appears that the only court
proceeding where such information would be admissible is a
proceeding under the code for the care of children, K.S.A.
38-1501 et seq. and amendments thereto. In such court
proceedings, certain information otherwise privileged may be
received and considered by the court in camera pursuant to
K.S.A. 38-1554 and K.S.A. 1991 Supp. 38-1514(c)(2).

In conclusion, a county health department may not be required
to disclose information regarding an individual's treatment
for venereal disease when such information is intended to be
used by the state as evidence against that individual in a
prosecution for indecent liberties with a child.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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