Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General's Medicaid Fraud & Abuse Control Division violated the Open Records Act in responding to William T. Trigg's October 6, 1999, request for records relating to the Division's investigation into alleged improprieties in the Cabinet for Health Services' Office of the Inspector General and Division of Licensing and Regulation. For the reasons that follow, we affirm the Division's denial of Mr. Trigg's request.
On October 6, Mr. Trigg requested copies of:
all reports prepared in the last six months pursuant to any inquiries, reviews, and/or investigations conducted by the Office of the Attorney General into the management (and/or individual managers) and/or the operation of the Office of the Inspector General and/or the Division of Licensing and Regulation of the Cabinet for Health Services. This includes but is not limited to any reports generated pursuant to Mr. Jay Videlli's investigation of complaints brought to his attention by Mr. Dan Dabney and myself.
On October 18, Corey Bellamy, open records custodian for the Office of the Attorney General, denied Mr. Trigg's request on the basis of KRS 61.878(1)(h), erroneously referred to as KRS 61.878(1)(j). Relying on the Franklin Circuit Court's decision in Kent Downey v. Albert B. Chandler , Franklin Circuit Court, Division II, 99-CI-00637 (September 7, 1999), Mr. Bellamy maintained that the various divisions of the Attorney General's office are foreclosed from releasing closed criminal investigative records based on Judge William L. Graham's ruling that under the cited exception, the office "was exempt from the provisions of the Open Records Law at least insofar as this office possesses records of criminal investigations." He noted that release of the records "would violate the spirit, if not the letter, of the Franklin Circuit Court's permanent injunction" in the Downey case. This appeal followed.
In his letter of appeal, Mr. Trigg requested a review of the Attorney General's October 18 denial "preferably by an entity outside the OAG, but at least outside [Mr. Bellamy's] office." In addition, Mr. Trigg posed a series of questions relating to the investigations, asking that the Attorney General "clarify a few points in order to help [him] with the process of deciding whether to pursue an appeal to Franklin Circuit Court."
On March 3, 2000, Barbara Maines Whaley, director of the Medicaid Fraud & Abuse Control Division, supplemented Mr. Bellamy's original denial of Mr. Trigg's request. Ms. Whaley explained that in the course of preparing that denial Mr. Bellamy had been given the erroneous impression that the Division's investigations were closed. "In fact," Ms. Whaley stated, "the matter was not a closed one at the time of Mr. Trigg's request, and is not currently a closed matter." Continuing, she observed:
Within the Medicaid Fraud & Abuse Control Division, there are two investigations: one involves allegations made by Mr. Trigg against the Office of Inspector General, and the other involves allegations made by Mr. Dan Dabney against the Division of Licensing and Regulation, which is a part of the Office of Inspector General within the Cabinet for Health Services. The two allegations were made separately, and their substantive contents are unrelated to each other.
The "reports" requested by Mr. Trigg do not exist; these investigations are open ones, in the process of being investigated by the Medicaid Fraud Division for potential criminal wrongdoing. As open investigations, these matters (despite the fact that Mr. Trigg asked to see "reports," this response addresses the files as a whole) are exempt pursuant to KRS 61.878(1)(h), in that disclosure at this point would harm the Medicaid Fraud Division of the Attorney General's Office because it would reveal the identity of witnesses/informants, and would be a premature release of information to be used in a potential prospective law enforcement action (s). Disclosure of the identity of witnesses/informants would discourage the cooperation of persons with the investigations. Likewise, premature release of any information regarding the investigations would create an extremely chilling effect upon the cooperation of persons who have not yet been interviewed.
Additionally, Ms. Whaley relied on KRS 61.878(1)(k), excluding from public inspection records or information the disclosure of which is prohibited by federal law or regulation. This provision, Ms. Whaley argued, operates in tandem with 42 C.F.R. Section 10007.11(f) to compel the Division "tosafeguard the privacy rights of all individuals and [to] provide safeguards to prevent the misuse of information under the unit's control." In a similar vein, Ms. Whaley relied on KRS 61.878(1)(a), the privacy exception, as a basis for denying access, asserting that this provision reflects "similar concerns regarding the privacy of individuals involved in the investigation" even after the investigations are closed. Finally, Ms. Whaley invoked KRS 61.878(1)(i), noting that the records withheld consist of preliminary materials, including correspondence, notes, and interviews, that are not intended to give notice of final action in these matters, and may therefore properly be withheld.
Before proceeding to the ultimate issue in this appeal, we briefly address Mr. Trigg's concerns about this office's ability to fairly and objectively adjudicate disputes involving the denial of a request by a division of this office. KRS 61.880(2) assigns to the Attorney General the role of dispute mediator in an open records appeal. In construing this provision, the Attorney General has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
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. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under circumstances such as those presented here, the Attorney General must proceed to a review of the appeal free from favoritism or bias.
We first address certain procedural issues concerning the manner in which Mr. Trigg's October 6, 1999, open records request was handled. KRS 61.880(1) establishes procedural guidelines for agency response to open records requests. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
"The language of the statute directing agency action is exact." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It requires a written response within three business days of receipt. Mr. Trigg's request was received on October 7, 1999. The Medicaid Fraud & Abuse Division's response was issued on October 18, 1999. Thus, some seven business days elapsed between the date that the request was received, and the date that the Division's response was issued. To the extent that the response was not issued in a timely fashion, it was procedurally deficient.
Substantively, we find no error in the Division's denial of Mr. Trigg's request. KRS 61.878(1) (h) provides, in part, that the following public records may be excluded from public inspection:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled 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 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[.] . . . 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 61.884.
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.
In construing KRS 61.878(1)(h), the Attorney General has observed:
Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests have been met.
See, for example, 95-ORD-95, p. 3; 96-ORD-155, p. 5; 97-ORD-129, p. 3.
Clearly, the Medicaid Fraud & Abuse Control Division of the Attorney General's Office is a law enforcement agency. Thus, it satisfies the first part of the three-part test. Moreover, the Division establishes that the disputed documents were compiled in the process of detecting and investigating statutory or regulatory violations, and therefore satisfy the second part of the test. "This language," the Attorney General has observed, "has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations . . . [and] contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action." 97-ORD-129, p. 4. Finally, the Division justifies its denial of Mr. Trigg's records request with proof of harm by premature disclosure of the records. Ms. Whaley asserts that release of the records:
at this point would harm the Medicaid Fraud Division of the Attorney General's Office because it would reveal the identity of witnesses/informants, and would be a premature release of information to be used in a potential prospective law enforcement action (s).
Having articulated the basis for denial in terms of the requirements of KRS 61.878(1)(h), we affirm the Division's denial of Mr. Trigg's request for open investigative files. See 97-ORD-52 (Public Corruption Unit of Attorney General's Office properly denied open records request for records compiled in active investigation on the grounds that premature disclosure would divulge information to subjects who had not yet been interviewed, and thus have a direct bearing on the outcome of the case).
Because we affirm the Medicaid Fraud & Abuse Control Division's denial of Mr. Trigg's request on the basis of KRS 61.878(1)(h), we do not address the other arguments advanced by the Division in support of its denial of Mr. Trigg's request. Nor do we address the series of questions that Mr. Trigg posed in his letter of appeal which relate to the Division's investigation. In assigning the role of dispute mediator to the Attorney General, KRS 61.880 (2)(a) provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
The language of this provision clearly indicates that the Attorney General's role in adjudicating open records disputes is narrowly circumscribed. He is authorized to review a public agency's denial of a request to inspect a public record per KRS 61.880(2)(a), or a complaint that the intent of the Act "is being subverted by an agency short of denial of inspection" per KRS 61.880(4). The
Attorney General does not have authority to entertain unrelated claims, resolve unrelated issues, or respond to unrelated questions in the context of an open records appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.