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 Cabinet for Health Services properly relied on KRS 61.878(1)(h) and KRS 61.878(1)(k) in denying Lexington Herald-Leader political writer Peter Baniak's March 13, 2001, request for:
. Any documents related to Medicaid payments since 1995 to Dr. Steve Henry, or Medicaid payments for work by Dr. Steve Henry for each year in that period[;]
. Any federal subpoenas or open records requests filed with the Cabinet for Health Services regarding Medicaid payments and Dr. Steve Henry since 1995. 1
For the reasons that follow, and upon the authorities cited, we conclude that the Cabinet's reliance on KRS 61.878(1)(h) and KRS 61.878(1)(k) was misplaced.
In a response dated March 16, 2001, Assistant General Counsel John H. Walker explained:
The Cabinet for Health Services has been put on notice that a federal grand jury has been empanelled and may be considering matters relating to Medicare and related issues pertaining to Steve Henry, M.D. Consequently, under Federal Rules of Criminal Procedure 6(e)(2) and (e)(6), the Department for Medicaid Services cannot, on its own authority, release any further records on Dr. Henry pending completion of the work of the grand jury.
Based upon the application of the federal rules as cited above, your open records request for information on Medicaid payments to Dr. Henry must be denied pursuant to KRS 61.878(1)(k) and KRS 61.878(1)(h) in that a federal rule of court governing the operation of grand juries assures the secrecy of the proceedings, and that any disclosure of information at this point could compromise the integrity of any pending investigation by the Office of the U.S. Attorney.
Shortly after Mr. Baniak received the Cabinet's denial, the Lexington-Herald Leader initiated this appeal through its attorney, David T. Royse.
In a supplemental response directed to this office following commencement of the appeal, Mr. Walker elaborated on the Cabinet's position. He observed:
The Cabinet was advised through appropriate channels that a grand jury was empanelled and was examining Medicare payments to Dr. Henry and related issues. Medicare is a Title XVIII program and Medicaid is a Title XIX program, however, there are key interrelationships between the programs on audit standards and program operations. Based upon that notification, the Cabinet acted to deny access to the records pursuant to the federal rules governing the operation of federal grand juries. Grand Jury proceedings are secret, and use and control of information subject to review by an empanelled federal jury is governed by the federal rules. Relying on the exception to access to records found in KRS 61.878(1)(h), the Cabinet takes the position that it should not compromise the integrity of a grand jury investigation into possible statutory or regulatory investigations.
By their terms, the federal rules of criminal procedure pertaining to the operation of grand juries mandate that information reviewed by the grand jury is confidential and access to those records is restricted and subject to disclosure in a specific manner. Rule 6(e)(3) even dictates who may disclose information. News Media have been asking for copies of federal subpoenas issued to the Department for Medicaid Services, and the Cabinet has advised those persons requesting copies of subpoenas that none have been received. It would appear that the federal rule 6(e)(6) governing grand juries make those documents confidential as well. Again, the Cabinet for Health Services is mindful of the specific rules governing grand jury procedures and simply does not wish to adversely impact or compromise the efforts of the grand jury or those who may be assisting the grand jury in its work.
On appeal, the Lexington Herald-Leader challenges the Cabinet for Health Service's position, asserting that the Cabinet has not sustained its statutory burden of proof relative to invocation of KRS 61.878(1)(h). Further, the Herald-Leader maintains that prior open records decisions of the Attorney General, specifically 93-ORD-91, undermine the Cabinet's argument that KRS 61.878(1)(k), operating in tandem with Federal Rules of Criminal Procedure 6(e)(2) and 6(e)(6), prohibit disclosure of the requested records. We agree.
Application of KRS 61.878(1)(h)
KRS 61.878(1)(h) authorizes the nondisclosure of:
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 construing this provision, the Attorney General has repeatedly recognized:
In order to successfully raise KRS 61.878(1)(h), 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. 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 has been met.
95-ORD-95, pp. 2, 3.
In 95-ORD-95, we were asked to review the Transportation Cabinet's denial of a request for various records pertaining to its Rural and Secondary Roads Program, and a particular construction and maintenance project. The Cabinet relied upon KRS 61.878(1)(h) in denying access, noting that an investigation was underway by an undisclosed authority, and the records had been subpoenaed. We rejected the Transportation Cabinet's position, observing:
The General Assembly mandates, at KRS 61.871, "that free and open examination of public records is in the public interest," and that the exceptions to disclosure contained in the Open Records Act, including KRS 61.878(1)(h), "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." Implementing this legislative mandate, in University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The court reasoned:
Having failed to satisfy the first part of the three-part test found in KRS 61.878(1)(h), the court soundly rejected the University's claim.
95-ORD-95, p. 3.
Extending the court's reasoning to the appeal then before us, we concluded that the Transportation Cabinet was not a law enforcement agency or an agency involved in an administrative adjudication, and were thus "spared debate on the issue of whether the records satisf[ied] either or both of the remaining parts of the three-part test . . . ." 95-ORD-95, p. 4. Nevertheless, we noted that the Transportation Cabinet "also failed to demonstrate that the records were compiled in the process of detecting and investigating statutory or regulatory violations, and that their release would harm the Cabinet by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. " Id.; see also, 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-37 (Finance and Administration Cabinet failed to make requisite showing relative to invocation of KRS 61.878(1)(h) in denying access to records relating to licensees of Kentucky Board of Respiratory Care); 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three-part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 99-ORD-162 (Jefferson County Police Department improperly denied request for maintenance and other records relating to radar unit used in the issuance of speeding citation because the records were not "actively, specifically, intentionally, and directly" compiled in the process of detecting and investigating statutory or regulatory violations, but were generated "independently of, or collaterally to, the [investigation process]); 00-ORD-196 (Jefferson County Corrections Department's reliance on KRS 61.878(1)(h) to deny requester access to videotape of incident that occurred in the basement of the Hall of Justice was misplaced insofar as record was devoid of evidence that FBI, which had conducted investigation of incident, asked Corrections to withhold videotape while its investigation was proceeding, and later affirmed that its investigation would not be compromised by release of tape; Corrections, which arguably had concurrent jurisdiction in the matter, could not persuasively argue that it would be harmed by premature release of the tape which it had already permitted requester to view). This litany of open records decisions, coupled with the Kentucky Supreme Court's decision in University of Kentucky, above, demonstrates that although the question of the propriety of an agency's invocation of KRS 61.878(1)(h) has arisen in various contexts, the analysis remains the same, "KRS 61.878(1)(h), like each of the other eleven exceptions, must be 'strictly construed' to afford the broadest possible public access." 97-ORD-129, p. 2.
The Cabinet for Health Services' reliance on KRS 61.878(1)(h) fails under each part of the three-part test. The Cabinet has not asserted that it is acting as a law enforcement agency or an agency involved in administrative adjudication in the matter of Dr. Henry's Medicaid payments. Nor has the Cabinet identified for the record an agency with concurrent jurisdiction in this matter that has requested that the disputed documents be withheld until after enforcement action is taken or a decision is made to take no action. 2 Nor has the Cabinet established that the disputed documents were compiled in the process of detecting and investigating statutory or regulatory violations. Instead, the record discloses that the documents were generated in the normal course of business, and therefore independently of any investigative process. Finally, the Cabinet does not provide a sufficient description of the harm to the agency that would result from premature disclosure of the records. More than a "bare claim" 3 that the agency will be harmed is required, and the Cabinet offers no explanation of the potential harm it or an agency with concurrent jurisdiction might suffer by premature disclosure. Accordingly, we find that the Cabinet for Health Services' reliance on KRS 61.878(1)(h) was misplaced.
Application of KRS 61.878(1)(k) and FRCrP 6(e)(2) and 6(e)(6)
The Cabinet for Health Services next argues that FRCrP 6(e)(2) and 6(e)(6), incorporated into the Open Records Act by operation of KRS 61.878(1)(k), mandate nondisclosure of the records identified in Mr. Baniak's request. Based on this office's decision in 93-ORD-91, we disagree. In 93-ORD-91, the Attorney General rejected the Transportation Cabinet's argument that records pertaining to two state contractors, which had been subpoenaed by a federal grand jury, were excluded from public inspection by KRS 61.878(1)(k) and FRCrP 6(e)(6). In the course of that decision, we analyzed FRCrP 6(e)(6) as well as FRCrP 6(e)(2) and concluded that the Cabinet erred in relying on these authorities as the basis for denying access to the records.
It is instructive to quote from 93-ORD-91 at some length:
KRS 61.878(1)(k) authorizes a public agency to withhold, except upon order of a court of competent jurisdiction, "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." The Cabinet maintains that this provision operates in tandem with Federal Rule of Criminal Procedure 6(e)(6), hereinafter referred to as Rule 6(e)(6), to prohibit release of contracts, correspondence, and other materials involving Tenny Pavoni Associates and TenEch Engineering and the Transportation Cabinet. Rule 6(e)(6) relates to recording and disclosure of grand jury proceedings and provides:
In [the Cabinet's] view, this rule extends to records in the Cabinet's custody which have also been subpoenaed by the U.S. Attorney.
We begin by noting that the federal rule cited by [the Cabinet] narrowly applies to "records, orders and subpoenas relating to grand jury proceedings," and is aimed at preventing disclosure of "such documents as grand jury subpoenas and immunity orders." Rule 6(e)(6). These documents . . . may reveal details of grand jury investigations, particularly witnesses and targets. Comptroller General, More Guidance and Supervision Needed Over Federal Grand Jury Proceedings 10, 14 (Oct. 16, 1980). Rule 6(e)(6) does not relate generally to documents produced pursuant to a grand jury subpoena, but only to this narrow category of records.
Rule 6(e)(2) is a general rule of secrecy governing grand jury proceedings. That rule provides:
(Emphasis added.) Hence, grand jurors, interpreters, stenographers, operators of recording devices, typists who transcribe recorded testimony, attorneys for the government, and persons assisting attorneys for the government are bound to observe this rule of secrecy relative to "matters occurring before the grand jury. "
This obligation of secrecy cannot, however, be imposed on any person except those specified in the Rule, and does not extend to witnesses. Wright, Federal Practice and Procedure: Criminal 2d § 106 and cases cited at Note 16. "The seal of secrecy on witnesses would be an unnecessary hardship, and might lead to injustice if the witness were not permitted to make a disclosure to his lawyer, his employer, or an associate." Id. Only those persons identified in Rule 6(e)(2) are barred from disclosing matters occurring before the grand jury.
The Transportation Cabinet, having been served with a subpoena for records relating to [two of its contractors] does not fall within any of these categories, and is not bound by the obligation of secrecy imposed by Rule 6(e)(2). Nor can it invoke this Rule, or Rule 6(e)(6), as a protective shield. While under normal circumstances, a witness cannot be compelled to make disclosure, the Cabinet has an affirmative obligation to release public records, independent of its involvement in the grand jury's investigation of [its contractors] , under the Kentucky Open Records Act. [The requester] did not request access to the grand jury subpoena or documents subpoenaed by the grand jury, but "all records, contracts and related materials pertaining to [the contractors'] business with the state . . . ." Those public records are not suddenly rendered exempt by virtue of the fact that some or all of them have been subpoenaed by the grand jury.
The records at issue in this appeal were created in the normal course of business for purposes not related to the prospect of a grand jury proceeding. The records have been subpoenaed for use in a grand jury investigation. This fact, standing alone, does not insulate the documents from the mandatory disclosure provisions of the Open Records Act. [The Cabinet] does not indicate that it did not retain custody of copies of the records, or that the records are exempt from disclosure under another exception to the Open Records Act. [It's] denial is instead premised entirely on the purported obligation of secrecy imposed on the Cabinet by operation of Rule 6(e).
93-ORD-91, p. 2-4. Having determined that the cited exception and federal rule did not authorize nondisclosure of the records identified in the request, the Attorney General concluded that the Transportation Cabinet violated the Open Records Act in denying the requester access to records maintained in the normal course of business. We believe that the facts before us compel the same result.
Although the Cabinet for Health Services "has been put on notice" and "advised through appropriate channels" that a federal grand jury has been empanelled to examine Medicare payments to Steve Henry, M.D. and related issues, its records of Medicaid payments for work performed by Dr. Henry have not been subpoenaed. They are records "created in the normal course of business for purposes not related to the prospect of a grand jury proceeding," which the Cabinet "has an affirmative obligation [pursuant to the Kentucky Open Records Act] to release," unless they are otherwise exempt. 93-ORD-91, p. 3, 4. Even if the disputed records had been, or are to be, subpoenaed, we believe that our conclusion in 93-ORD-91 compels disclosure absent specific proof that release of the records is inconsistent with the duty "to preserve inviolate the secrecy of the [grand jury] proceedings." In re Grand Jury Proceedings, 851 F.2d 860, 866 (6th Cir. 1988).
On this issue, the federal courts have observed:
The prohibition against the disclosure of matters occurring before the grand jury is not a prohibition against the disclosure of all information that is presented to the grand jury. "The aim of the rule is to prevent disclosure of the way in which information was presented to the grand jury, the specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the targets upon which the grand jury's suspicion focuses, and specific details of what took place before the grand jury. "
In the Matter of Grand Jury Investigation (90-3-2), 748 F.Supp. 1188, 1207 (E.D. Mich. 1990), citing In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1302-03 (M.D. Fla. 1977). In general, "physical evidence, such as a document, does not become secret merely because it has been presented to a grand jury, if it was created for purposes other than the grand jury investigation and its disclosure does not reveal matters occurring before the grand jury. " Id. at 1208.
Accordingly, we find that although the Cabinet for Health Services advanced a good faith argument in support of its denial of Mr. Baniak's request, the Cabinet's reliance on KRS 61.878(1)(h) is misplaced. Moreover, it is the opinion of this office that the Cabinet interprets the obligation of secrecy imposed by FRCrP 6(e)(2) and 6(e)(6) too broadly. Our decision in 93-ORD-91 is, as the Herald-Leader correctly notes, "on all fours with the [case] at hand," and requires disclosure of public records for which no other exemption is claimed.
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 proceedings.
Distributed to:
David T. RoyseStoll, Keenon & Park LLP201 East Main StreetSuite 1000Lexington, KY 40507-1380
Peter BaniakPolitical WriterLexington Herald Leader1200 Midland AvenueLexington, KY 40506
John H. WalkerAssistant General CounselCabinet for Health Services275 East Main Street, 5W-BFrankfort, KY 40621-0001
Footnotes
Footnotes
1 The Lexington Herald-Leader does not challenge the Cabinet's disposition of this portion of Mr. Baniak's request.
2 Compare, 97-ORD-52 (affirming Cabinet for Public Protection and Regulation's denial of request for records, turned over to the Office of the Attorney General as part of an investigation of the Cabinet's Department of Alcohol Beverage Control, on the basis of KRS 61.878(1)(h)).
3 OAG 89-11, p. 4.