Another significant victory for open government in a unanimous opinion issued by the Kentucky Court of Appeals on November 8 involving access to records relating to the Medicaid waiver application submitted by Governor Matt Bevin on August 24, 2016.
Kentucky Equal Justice Center staff attorney Anne Marie Regan successfully challenged the Cabinet for Health and Family Services' denial of her request for records exchanged by the Cabinet and Governor Bevin and the U.S. Department of Health and Human Services, after January 1, 2016, relating to the waiver application. Both the Kentucky Attorney General and the Franklin Circuit Court ruled in her favor.
CHFS subsequently appealed to the Kentucky Court of Appeals.
In Cabinet for Health and Family Services v. Anne Marie Regan, on behalf of the Kentucky Equal Justice Center, the court affirmed the Attorney General and the Franklin Circuit Court, rejecting the Cabinet's position that the records were protected from public inspection by the preliminary documents exceptions because they were not "both adopted and made part of" final agency action.
http://opinions.kycourts.net/coa/2018-CA-000842.pdf
The court reaffirmed the holding in University of Kentucky v. Lexington H-L Services, Inc., recognizing that preliminary records "do not have to be referenced or incorporated; rather, preliminary records lose exempt status if such records formed the 'basis' of the agency's final action."
https://law.justia.com/cases/kentucky/court-of-appeals/2018/2017-ca-001…
Today's opinion should eliminate any lingering public agency doubt as to the courts' interpretation of the preliminary documents exceptions and curb abuse of the exceptions by agencies inclined to default to them to shield records that have a direct bearing on the "formation of public policy" from public inspection.
It means this: an agency cannot evade public inspection of records that support final agency action by simply avoiding reference to them in, or "incorporating" them into, final action.
They are deemed "adopted," and therefore publicly accessible, if they form the basis of final action. Analyses, memoranda containing recommendations or policy formulations, notes, drafts, correspondence, investigative records, and any other record for which preliminary status is claimed, cannot be withheld from the public on the thinly veiled theory that they were not expressly referenced in, or physically incorporated into, final action.
The final action in this case consisted of the submission of the Medicaid waiver application. The once "preliminary" records exchanged by the U.S. Department of Health and Human Services, CHFS, and Governor Bevin relating to the application's submission thereafter lost their exempt status.
It bears repeating that HB 387, unsuccessfully sponsored in the last session by Rep. Jason Petrie, R-Elkton, contained language "clarifying" the preliminary documents exception to permanently shield records that "are not incorporated in the final findings, order, or record." The clear intent of this failed amendment was to provide legal ammunition to public agencies seeking to avoid disclosure of the most critical records in understanding how public policy is formed.
https://apps.legislature.ky.gov/record/19rs/HB387.html
Proponents of open government should be on high alert as the next legislative session approaches to ensure that any similar attempt to expand the preliminary documents exceptions in the 2020 Regular Session meets the same fate.
Today's opinion also repudiates public agency attempts to thwart the Attorney General's review of open records appeals by refusing to honor his statutorily authorized requests to confidentially examine the records that are the subject of appeals presented to him under KRS 61.880(2)(c).
The Court of Appeals affirmed the Franklin Circuit Court's conclusion that CHFS violated the open records law by defying the Attorney General's request for records relating to the Medicaid waiver application for purposes of confidential review.
This is particularly ironic given the "dressing down" the Court of Appeals issued to the Cabinet for Health and Family Services for the same conduct in 2015.
In Cabinet for Health and Family Services v. Todd County Standard, the court censured CHFS for "intentionally frustrating the Attorney General's review of an open records" appeal by refusing to comply with a KRS 61.880(2)(c) request for documentation to substantiate its position. The resulting monetary penalties were apparently insufficient deterrent and CHFS has continued to refuse the Attorney General's requests in open records appeals now in the courts.
https://cases.justia.com/kentucky/court-of-appeals/2015-2012-ca-000336-…
The Court of Appeals today held that it "interprets the Attorney General's statutory authority to request additional documents for substantiation as constituting a compulsory directive" to public agencies and that agency refusal to comply with such requests as a violation of the open records law.
Again, the court laid to rest any lingering doubt on the part of public agencies about the necessity of complying with the Attorney General's KRS 61.880(2)(c) request for copies of the "records involved" in the open records appeal.
Today's opinion reflects the Court of Appeals' strict construction of the exceptions to the open records law to promote the goal of "free and open examination of public records." It also sends a clear message that "Statutes enacted for the public benefit should be interpreted most favorably to the public."
https://law.justia.com/cases/kentucky/court-of-appeals/1979/596-s-w-2d-…
