Request By:
Ms. Marcia R. Morgan
Chief Administrator and Records Custodian
Office of th Attorney General
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
Attorney Jon L. Fleischaker, on behalf of the Louisville Courier-Journal , has appealed to our office your denial of that newspaper's request to inspect certain records, "closed or otherwise disposed of by our Medicaid Fraud Control Unit between January 1, 1987, and May 31, 1987." The request was denied on the grounds that providing access to those files would constitute an unwarranted invasion of personal privacy and would not further a wholesome public interest.
FINDINGS IN BRIEF
The substantial privacy interests of suspects investigated but not charged with criminal activity by our Medicaid Fraud Division outweighs the public's right of access to the closed files requested by the Courier-Journal . Therefore, the denial of this Open Records request was justified on privacy grounds pursuant to KRS 61.878(1)(a) and KRS 12.150(2)(b). However, the Attorney General's Office was obligated to separate or redact exempt material from nonexempt material and provide it where feasible.
FACTUAL BACKGROUND
R. G. Dunlop of the Louisville Courier-Journal requested of the Attorney General's Office certain information or documents pursuant to the Kentucky Open Records Act. Specifically, Mr. Dunlop requested the following information:
- A list of all investigations, or any action resulting in an administrative determination, closed or otherwise disposed of by the Medicaid Fraud Control Unit between January 1, 1987, and May 31, 1987.
- A list of all parties involved in those investigations or actions resulting in an administrative determination, broken down by the style, caption or other identifying characteristic of the investigation or action.
- A list of the attorneys involved in those investigations or actions, broken down by the style, caption or other identifying characteristic of the investigation or action.
Writing as official custodian, on behalf of the Medicaid Fraud Division of the Attorney General's Office, you denied the request. In your response you stated in relevant part:
You requested access to all the investigative files of our Medicaid Fraud Division which were closed or otherwise disposed of between January 1, 1987, and May 31, 1987. Since we have already provided you with a list of those investigations that resulted in court actions and were closed during that time period, we assume that you are requesting files for investigations that did not result in court actions, for whatever reasons.
I must respectfully deny your request pursuant to KRS 61.878(1)(a) and KRS 17.150(2) as access to these files would constitute an unwarranted invasion of personal privacy and would not further a wholesome public interest.
In Mr. Fleischaker's appeal to our office on behalf of the Courier-Journal , he stated:
Ms. Morgan's reliance on the 'personal privacy' exemption in KRS 61.878(1)(a) and KRS 17.150(2) is misplaced. In OAG 89-87, an opinion issued on November 1, 1989, your office stated that the public's access to law enforcement and administrative adjudication records should be governed by the provisions of KRS 61.878(1)(f), not 'the more ambiguous language in KRS 61.878(1)(a), (g), and (h).' OAG 89-87 squarely rejects the Transportation Cabinet's reliance on the 'personal privacy' exemptions on which Ms. Morgan now relies, in a case involving access to documents relating to a license suspension proceeding. Instead, your office opined that the explicit provisions of KRS 61.878(1)(f) are controlling where law enforcement and administrative adjudication records are involved.
Pursuant to authority granted by KRS 61.880(2), the undersigned Assistant Attorney General requested access to and examined the records which fell within the perimeters of the Courier-Journal's request.
Generally, these records consisted of twenty-two closed case files which had not resulted in prosecutions, disposed of by the Medicaid Fraud Division of our office between January 1, 1987, and May 31, 1987, during the previous Attorney General's administration. These files typically contained a complaint or referral, the investigator's notes, photocopies of any available evidence, and the investigator's report recommending closure of the file, usually for lack of evidence. A brief description of the contents of each file is attached to this opinion, as Appendix 1.
Before we address the merits of the appeal, two brief observations are worth noting. A request for an Attorney General's opinion concerning a denial of an open records request by the Attorney General's own custodian of records creates an obvious and unavoidable conflict of interest. We can only assure the appealing party that we have endeavored to research the law thoroughly, and to apply that law to the facts presented without favoritism or bias.
Also, if this matter is appealed to the appropriate Circuit Court - which could have been done without requesting the opinion - that court will make a de novo review of the evidence. See KRS 61.882(2) and (3). Therefore this opinion will not prejudice the requesting party in any way.
OPINION OF THE ATTORNEY GENERAL
The Courier-Journal's appeal raises three significant identifiable issues: First, does KRS 61.878(1)(f) foreclose a law enforcement agency from relying on the personal privacy exemptions contained in either KRS 61.878(1)(a) or KRS 17.150(2)(b), as Mr. Fleischaker contends is mandated by our previous opinion - OAG 89-87? Second, assuming a law enforcement agency is not foreclosed from asserting these exemptions, what is the proper test for their application? Third, applying the facts and circumstance presented for review, was the Attorney General's custodian of records justified in her reliance on the privacy exemptions of KRS 61.878(1)(a) and KRS 17.150(2), in denying the Courier-Journal's open records request?
Before focusing on these issues, the history and language of the relevant sections of the Kentucky Open Records Act (KRS 61.870 et seq.) and the Criminal History Records Act (KRS 17.110 through KRS 17.157), should be kept in mind.
The Open Records Act is premised on the proposition, stated in the preamble of the Act, that "access to information concerning the conduct of the peoples' business is a fundamental and necessary right of every citizen in the Commonwealth of Kentucky." Courts considering challenges under the Act:
shall take into consideration the basic policy of KRS 61.870 to 61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
KRS 61.882(4).
Although the basic policy behind the Open Records Act is the citizen's right to access government records, and thus be able to better evaluate government programs and officials, the General Assembly recognized that it would not be in the public's best interest if this right of access was unrestricted. Therefore the Act exempts certain categories of records, which a public agency may withhold from inspection in its discretion. Among the public records excluded from the application of the Kentucky Open Records Act and subject to inspection only under order of a court of competent jurisdiction are:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
. . . .
(f) Records of law enforcement agencies or agencies involved in administrative adjudication that were complied in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to KRS 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884;
. . . and
(j) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
. . . .
KRS 61.878(1)(a), (f), and (j).
Among the public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly are portions of intelligence and investigative reports maintained by criminal justice agencies described in KRS 17.150(2), which is part of the Criminal Records History Act. That statute provides in relevant part:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection provided prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential information; (b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in such records to be used in a prospective law enforcement action.
With this statutory language in mind, we now turn to the issues previously identified.
1. May law enforcement agencies rely on the privacy exemption cited to deny access to law enforcement records ?
Mr. Fleischaker contends that our office's reliance on the personal privacy exemption in KRS 61.878(1)(a) and KRS 17.150(2) is misplaced because in OAG 89-87 we said that, "KRS 61.878(1)(f) supersedes the more ambiguous language in KRS 61.878(1)(a), (g), and (h)." After carefully examining the statutory language, we are of the opinion that OAG 89-87 does not accurately state the law and should be overruled.
The language of KRS 61.878(1)(f) does not bar a law enforcement agency from relying on the privacy exemptions cited. Indeed, KRS 61.878(1)(f) clearly states: " Unless exempted by other provisions of KRS 61.870 to 61.884 , public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action." That sentence makes it clear that a law enforcement agency may rely on the other exemptions, including KRS 61.878(1)(a), the privacy exemption, to deny inspection of its closed files, assuming the facts justify such reliance. Prior open records opinions of this office concerning law enforcement agency records have discussed the privacy exemption, thus impliedly recognizing that this exemption may be raised by law enforcement agencies. See , e.g. , OAGs 76-511, 82-388, 83-260 and 88-18.
2. What is the proper test in applying the privacy exemptions of KRS 61.878(1)(a) and KRS 17.150(2)(b) ?
Having concluded that law enforcement agencies, including the Office of the Attorney General, may in appropriate cases rely on KRS 61.878(1)(a) and KRS 17.150(2)(b), we next examine how these exemptions to the Open Records Act have been considered by the courts.
The Kentucky Court of Appeals in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission (hereinafter referred to as "Board of Education"), Ky.App., 625 S.W.2d 109 (1981), adopted a balancing test where the public's interest in disclosure of personal information contained in public documents is weighed against the potential invasion of individual privacy, when a government agency asserts KRS 61.878(1)(a) as grounds to withhold public inspection of public records, as measured by the standards of a reasonable man. This same type of balancing test is applied by the federal courts construing the privacy exemptions contained in the federal Freedom of Information Act ("FOIA"). See , United States Dept. of Justice v. Reporters Comm. for Freedom of the Press (hereinafter referred to as "Reporters Comm."), 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989), construing 5 U.S.C. § 552(b)(7)(c). See also , A. Nagel, What Constitutes Personal Matters Exempt From Disclosure By Invasion of Privacy Exemption Under State Freedom of Information Act , 26 A.L.R. 4th 666 (1983) and J. Pearson, What Constitutes "Unwarranted Invasion of Personal Privacy" For Purposes of Law Enforcement Investigatory Records Exemption of Freedom of Information Act (5 U.S.C. § 552(b)(7)(c) , 52 A.L.R. Fed. 181 (1981). However, in Kentucky this balancing test is not "tilted in favor of disclosure, " as is done by some of the federal decisions. See , Board of Education, supra.
The privacy exemption contained in the Criminal History Records Act, KRS 17.150, applies to a more limited type of record. That statute provides:
(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection provided prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
. . . .
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest.
We are of the opinion that the privacy exemption in KRS 17.150(2)(b) serves the same policy as the privacy exception in KRS 61.878(1)(a) and the same type of balancing test should apply. However, KRS 17.150(2)(b) only applies to information in an investigative report in a closed file of a criminal justice agency. KRS 17.150(3), KRS 61.878(4), and KRS 61.880(1) require disclosure of nonexempt portions of such reports. An agency relying on these exemptions has a duty to provide for inspection of that part of its records that are nonexempt and justify that part which it has excluded with specificity, briefly explaining how the exception applies to those parts of the record withheld. Our response, while specific, should have had a better explanation of how the exceptions cited applied to the records withheld.
3. Do individuals investigated, but not charged with crimes, have a privacy interest that outweighs the public's interest in the disclosure of their files by criminal justice agencies ?
As previously indicated, Kentucky courts considering whether KRS 61.878(1)(a) is applicable must balance the individual's privacy interest against the public's interest in the release of information. Board of Education, supra. This is the same balancing test employed by federal courts considering FOIA challenges under 5 U.S.C. § 552(b)(7)(c). Therefore, federal case law decided under that section is highly persuasive.
The preliminary question is whether the interest in nondisclosure is the type of privacy the exemption is intended to protect. Reporters Comm., 109 S. Ct. at 1476. Neither the Kentucky Open Records Act or FOIA define personal privacy. The United States Supreme Court has defined the privacy interest protected in FOIA as concerning information "intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public." Reporters Comm., 109 S. Ct. at 1476 and n. 16 (quoting Webster's Third New International Dictionary , 1804 (1976)).
Federal courts that have faced this issue have uniformly held that the revelation that an individual has been investigated for suspected criminal activity represents a significant intrusion on such an individual's privacy which is cognizable under the FOIA privacy exemption concerning investigatory records compiled for law enforcement purposes. See , e.g. ,
Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856 (D.C. Cir. 1981). We are persuaded that this same type of privacy interest is protected under the Kentucky Open Records Act (KRS 61.878(1)(a)) and the Kentucky Criminal History Records Act (KRS 17.150). In the words of the United States Court of Appeals for the District of Columbia:
The decision to prosecute an individual for a crime is attended by consequences beyond the risk of conviction. When the individual or the crime has attracted general notoriety, institution of proceedings typically provokes wide spread speculation attended by at least some damage to the reputation of the individual involved. Common experience teaches that this speculation is not quieted when, and if, a jury finally announces its verdict. Typically, the decision not to prosecute insulates individuals who have been investigated but not charged from this rather significant intrusion into their lives . . . . To release the identities of these individuals and the information collected about them where it does not pertain to [appellant] would announce to the world that these individuals were targets of an FBI investigation. There can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation. [Other case citations omitted.]
Fund for Constitutional Government, supra at 864. See also 52 A.L.R. Fed. 181 (1981) for other cases recognizing the privacy interest of such individuals. We are of the opinion that individuals investigated by the Medicaid Fraud Division of this office have a similarly significant privacy interest not unlike targets of an FBI investigation.
Because persons investigated for, but not charged with, criminal activity have a legitimate privacy interest, this privacy interest must be balanced against the public's interest in disclosure. "Relevant factors are whether a substantial public interest will be advanced by the disclosure, and whether the likely public impact will be significant."
Johnson v. United States Dep't of Justice, 739 F.2d 1514, 1519 (10th Cir. 1984). The identity of the requesting party is not a factor in assessing the public interest served by disclosure. Reporters Comm., 109 S. Ct. at 1480. The public has an interest in being informed about what the government is doing. Id.
Turning to the facts of the case at hand, we can identify at least one substantial public interest that would be advanced by the disclosure of the criminal investigatory files requested; the public has an interest in seeing that alleged criminal activity is thoroughly investigated and vigorously prosecuted without favoritism or bias. This interest must be balanced against the significant privacy interests previously identified of those investigated but not charged by our Medicaid Fraud Division. It is the opinion of the Attorney General that under the facts presented, the public's right of access to the files requested by the Courier-Journal should yield to the significant privacy interests of those persons investigated by our Medicaid Fraud Division where the investigations did not lead to criminal charges or indictments. We adopt the approach taken by the federal appellate court in Fund for Constitutional Government, supra, where the court said:
[W]e do not state a per se rule that, in every case where individuals have been investigated but not charged with a crime, that information is properly exempt from disclosure under Exemption 7(6) [in Kentucky exemption KRS 61.878(1)(a) or KRS 17.150(2)(b)]. We adhere to the view that any per se approach would be inconsistent with the Court's [or the Attorney General's] duty to balance de novo the privacy interest in disclosure. We do observe, however, that release of this type of information represents a severe intrusion on the privacy interests of the individual in question and should yield only where exceptional interests militate in favor of disclosure.
Id. at 866.
Our opinion upholding Ms. Morgan's denial is not fully dispositive of this appeal. As previously indicated, an agency that denies requested information under the Open Records Act has a duty to separate any nonexcepted material from the excepted material and make the nonexcepted material available for examination. KRS 61.878(4). Similarly, criminal justice agencies must permit public inspection of intelligence and investigative reports, providing prosecution is completed or a determination not to prosecute has been made. The Criminal Records Act permits only the withholding or portions of such records, if the exemptions apply, and the custodian has the burden to justify the refusal of inspection with specificity. KRS 17.150(2) and (3). We are of the opinion that the Medicaid Fraud Division had a duty on a case-by-case basis to redact nonexempt material.
In conclusion, it is the opinion of the Attorney General that Ms. Morgan's reliance on KRS 17.150(2)(b) and KRS 61.878(1)(a) was proper and fully justified, as the substantial privacy interests of individuals investigated but never charged with criminal activity outweighs the public's interest in disclosure of the requested files closed by our Medicaid Fraud Division. However, assuming the requesting party still desires to inspect the files requested and no appeal is made of this opinion to the circuit court, the Medicaid Fraud Division must make a good faith determination of whether the files contain any nonexcepted materials that can be provided without creating an overly burdensome task on the division. This task will be less burdensome if the newspaper is able to eliminate from its request some of the files by their description from the appendix enclosed.
As required by statute, a copy of this opinion is being mailed to the appealing party, Mr. Jon Fleischaker, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
ATTACHMENT
GENERAL DESCRIPTION OF FILES EXAMINEDFILE NO.DESCRIPTION86-33-0070This file concerned an investigation of aLexington Optometrist, who was accused ofbilling the Kentucky Medical Assistance Plan(KMAP) for services not rendered. Itcontains several confidential interviews.The investigator recommended closure of thecase, with a warning letter, when theinvestigation revealed that although theoptometrist billed the KMAP $ 57 for eyeexaminations, and private pay patients only$ 35 for the same service, the maximumreimbursement permitted or paid by the KMAPwas $ 33. Thus the KMAP was not overchargedby this billing practice, because themaximum pay was less than the amount billedfor either type of patient. (Closed1/23/87).86-33-56This file involved allegations that ahospital had required medicaid patients topay a deposit without refunding the portionof the deposit covered by medicaid. Anaudit of the investigator found the hospitalrecords to be in order and recommended thecase be closed for lack of evidence.(Closed 2/4/87).86-33-0062This file involved an investigation of anursing home alleged to have overchargedmedicaid at the time of a patientsdischarge. When notified of the policy, thenursing home had refunded all monies owed.The investigator recommended closing thefile. (Closed 3/4/87).87-33-0008This investigation was referred by aconfidential source who had suspicions thata nursing home was using personal funds ofresidents to pay debts patients owed thehome. Upon investigation it was determinedthe personal funds were used to purchasepersonal care items requested by some of thepatients and that there had been nointentional criminal wrongdoing. The filewas closed at the recommendation of theinvestigator for lack of evidence. (Closed2/23/87).86-33-0065This investigation concerned allegationsthat a mental patient had been abused bydepriving that patient of an allergy shot.The investigator determined that medicalrecords substantiated the mental carefacilities statement that any discomfort ofthe patient was due to the patients mentalcondition, and not abuse. The file alsocontains confidential records concerning themental patient. The file was closed onrecommendation of the investigator for lackof evidence. (Closed 2/23/87).87-33-0001The contents of this file were missing.Notes on the file jacket indicated that thefile had concerned allegations of fraud onthe part of a private citizen concerning hereligibility for Medicaid. The file wasclosed and the contents apparently referredto another agency. (Closed 2/23/87).86-33-069This case involved allegations that a socialsecurity recipient's sister had wrongfullyendorsed the recipient's social securitychecks. The investigator determined that nostate funds were involved, and the matterwas referred to the Department of Health andHuman Services. (Closed 3/16/87).86-33-0029The computerized case list indicates thisfile concerned a state mental facility.This file could not be located. Thecomputer list indicates it was closed3/29/87.86-33-0028This case concerned allegations of patientabuse at a state mental hospital by a staffperson. The investigator determined therehad been no intent to harm the patient andrecommended the case be closed. (Closed3/19/87).86-33-0033This case concerned allegations that anursing home had received kickbacks from apharmacy to get the homes medicaidbusiness. The informants were promisedconfidentiality. The investigatordetermined that the so called "kickbacks"were actually discounts and had beenproperly reported by the pharmacy. Theinvestigator recommended closure for lack ofevidence. (Closed 3/19/87).86-33-0001This file involved an investigation to see ifa physician had "gang billed" (billing forexamining several children in a family, whenonly one patient received his services).The investigators report revealed thatconfidential interviews with patients hadvindicated the physician. The investigatorrecommended that this case be closed forlack of evidence. (Closed 3/23/87).86-33-0043This file concerned allegations of patientabuse and overcharging of medicaid by anursing home. Confidential statements weretaken, patient files were seized, and anaudit was done of a nursing home's records.Many confidential patient records are inthis file. The investigator determined theevidence was insufficient and recommendedclosure for lack of evidence. The patientabuse allegations were referred to theCabinet of Human Resources, Division ofLicensing and Regulations. (Closed3/31/87).86-33-0039This case involved an investigation ofnursing home administrators whom the ownersof the nursing home accused of theft ofpatient funds. The investigator met withthe administrator's, and their attorney whoprovided records which satisfied theinvestigator that no wrongdoing had takenplace. The investigator recommended thatthe file be closed for lack of evidence.(Closed 3/31/87).86-33-0076This case involved anonymous allegationsthan an individual was receiving medicaidbenefits for which she was not entitled.The investigator determined that the subjectwas receiving V.A. benefits, not medicaidbenefits, and no wrongdoing had occurred.He recommended the case be closed for lackof evidence. (Closed 5/7/87).87-33-0013This case involved allegations of neglect bya care-taker of a patient referred from theCabinet for Human Resourses, Department forSocial Services where a patient had skinproblems. The patient did not requestservices or want any action taken againstthe facility. The Adult Protective ServicesReport indicated that the deficiency hadbeen corrected. The investigatorrecommended closure for lack of sufficientevidence to bring a criminal complaint.(Closed 5/12/87).87-33-0011This case file was missing. The computerlisting indicates it involved a nursing homeand was closed for lack of evidence on5/12/87.86-33-0073This case involved anonymous allegations thata skilled nursing facility had neglected apatient. The patient involved was a 91 yearold woman with Alzheimer's disease, who haddied of natural causes prior to thereferral. The Cabinet for Human Resourceshad attempted to interview the patient, butdue to her menta condition, was not able torespond. No one admit to having madethe complaint, and the investigatorrecommended closing the file for lack ofevidence. (Closed 5/12/87).87-33-0012This case involved allegations that a skillednursing facility in Louisville had abusedpatients. Confidential patients records arecontained in the file, and staff memberswere interviewed. The investigator found nocriminal neglect and recommended closing thefile. The patient had died before theoffice had received the complaint. (Closed5/13/87).86-33-0003This case involved allegations that apharmacy was charging patients an extra $ 5per visit. Seventy-four letters were mailedto patients of which only three patientsresponded. The investigator concluded thatthe proof, at best, would show a total $ 15in overcharges, and it would not warrantfurther investigation. He recommended thecase be closed for lack of evidence. Thefile also contains a letter from a privateattorney retained by the pharmacy. Theattorney threatened to sue the office forinvasion of privacy, but this does notappear to have influenced the decision toclose the case. (Closed 5/19/87).87-33-0017This case involved allegations that anursing home was not providing thecomplaintant's mother proper care. Theinvestigator recommended closing the filefor lack of evidence and referred thematter to the Cabinet for Human Resources,Adult Protective Services. (Closed5/19/87).86-33-0064This case concerned allegations of patientabuse by a state juvenile facility involvinghomosexual behavior on the part of theresidents. The investigator determined thatthe juvenile who had complained had been avoluntarily participant in the homosexualbehavior, that the behavior had taken placewithout the knowledge of the staff, and thatdue to the facility overcrowding, the staffhad done all it could to prevent homosexualactivity. He recommended closing the filefor lack of evidence of wrong doing of thepart of the staff. (Closed 5/19/87).86-33-0063This case involved allegations of wantonendangerment by a state juvenile facility.The case was referred to our office by a CHRinspector. A staff member had been caughtspeeding 75 mph in a 55 mph zone and had ajuvenile in the vehicle at the time. Thestaff member had paid a fine in districtcourt, and had been disciplined internally.The investigator concluded that the speedingticket, and internal discipline wassufficient punishment and the facts did notwarrant criminal prosecution. Herecommended the case be closed for lack ofevidence. (Closed 5/19/87).