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 Department for Medicaid Services violated the Open Records Act in the disposition of attorney Richard Clay's request for copies of records relating to his client Dr. Daniel Tumey. For the reasons that follow, we affirm the Department's denial of Mr. Clay's request.
On November 21, Mr. Clay mailed his request to the Department for Medicaid Services, misidentified as the Department of Medical Services. In it, he asked that the Department provide him with copies of records identified as follows:
1. All files, notes, documents, receipts, or other tangible evidence concerning all Medicaid billing disputes concerning Dr. Tumey, including one resolved approximately August, 1999;
2. Itemization of all material seized from Dr. Tumey under authority of the search warrant issued October 12, 2001;
3. Copies of all documents or other material seized from Dr. Tumey under authority of the search warrant issued October 12, 2001;
4. Itemization of all material obtained from Dr. Tumey by Thresa Jagnow or Paula Hensinger October 9, 2001;
5. Copies of all documents or other material obtained from Dr. Tumey by Thresa Jagnow or Paula Hensinger October 9, 2001;
6. Any written or recorded statements made by Dr. Tumey, or copies thereof, the existence of which is known or by the exercise of due diligence may become known to the Commonwealth;
7. The substance of any oral statement made by Dr. Tumey which the Commonwealth intends to offer as evidence at any proceeding, whether made before or after his arrest or release;
8. All statements, confessions, admissions, remarks, or utterances of Dr. Tumey made to investigating officers or to third persons, including all statements, admissions, remarks or utterances which may have been incorporated in any report, statement, memorandum, or other document or recording prepared by federal, state, or local government agents or persons working in cooperation with the Commonwealth;
9. The results or reports of any and all physical or mental examinations made in connection with Dr. Tumey;
10. The results and laboratory reports of any and all scientific tests made in connection with Dr. Tumey, including, but not limited to, identification investigations and fingerprint analysis;
11. All physical evidence intended to be offered as evidence concerning Dr. Tumey, including the location the Commonwealth obtained it, its present location, and the name of the present custodian;
12. All documentary evidence of any description whatsoever intended to be offered as evidence concerning Dr. Tumey, including the place the Commonwealth obtained each particular item, the present location of each particular item, and the name of the present custodian of each particular item;
13. Any and all items or specimens of physical evidence recovered or removed from the person of Dr. Tumey or from any possession or premises alleged to be in the custody or control of Dr. Tumey;
14. A copy of the written transcripts, or an opportunity to hear or see, any and all mechanical recordings, photographs, or video tape recordings relating to Dr. Tumey;
15. A list of any and all fruits or evidence of crime, misconduct, or unacceptable practices, or instrumentalities recovered from Dr. Tumey's person or from any possession or premises alleged to in the custody or control of Dr. Tumey, together with any warrant or written authority under which the search of any such person, possession, or premises was conducted.
In addition, Mr. Clay asked that the Department "identify whether any records exist that list other medicaid providers against whom investigations have been concluded in the prior five (5) years, including the identity and location of the provider, summary of proceedings, and disposition."
On November 29, 1 Zach Ramsey, Director of the Division of Program Integrity within Medicaid Services, denied Mr. Clay's request. He explained:
[T]he Department for Medicaid Services will not be able to accommodate your request as the requested information is exempt in accordance with KRS 61.878(1)(h), due to the fact that an active investigation, pertinent to Dr. Tumey, is currently being conducted by the Office of the Attorney General ("OAG"), Medicaid Fraud and Abuse Control Unit. All written information previously in the possession of Cabinet investigators was turned over to the OAG, at their request. The OAG informs us that it considers this information to be part of their active investigation.
In response to the information Mr. Clay requested in the final paragraph of his letter, Mr. Ramsey advised:
[T]he Department cannot respond without clarification and otherwise denies the request in accordance with KRS 61.872(6). You may resubmit your request with more specificity, such as whether you are requesting investigations within the Cabinet, or investigations by or with the OAG or other law enforcement. Also, for what provider groups are you requesting this information, those that are the same as or similar to Dr. Tumey, or all providers (which conceivably could be a vast amount of records). Please clarify your request, if possible, and the Department will review and possibly accommodate such, if legally permissible under the Kentucky Open Records Act, KRS 61.870 - 61.884.
We affirm, in full, the Department's disposition of Mr. Clay's request.
With reference to the Department's denial of requests 1 through 15 on the basis of KRS 61.878(1)(h), 2 we refer the parties to 97-ORD-52 involving the Public Protection and Regulation Cabinet's denial of a request for records relating to an internal investigation of violations of alcohol beverage control laws conducted by the Cabinet and subsequently turned over to the Attorney General's Public Corruption Unit. The Cabinet denied the request on the basis of KRS 61.878(1)(h), and we affirmed after establishing that the Public Corruption Unit's investigation was ongoing and that the Unit had determined that "premature release and inspection of the requested records could harm the ongoing investigation and prospective law enforcement action by divulging information to subjects yet to be interviewed and which may have a bearing on the outcome of the case." 97-ORD-52, p. 3. We believe that this decision, and the authorities cited therein, is dispositive of requests 1 through 15 of Mr. Clay's records application.
As noted, the Attorney General's Medicaid Fraud and Abuse Control Division has confirmed that its investigation into Dr. Tumey's activities is ongoing, and that premature disclosure of the requested records will compromise its criminal investigation. Mr. Wright, who is Prosecutions Branch Manager, reaffirmed this fact in an email transmission directed to the undersigned on December 19, 2001. A copy of that communication is enclosed. We therefore conclude that the Department for Medicaid Services properly denied Mr. Clay's requests on the basis of KRS 61.878(1)(h), as construed in 97-ORD-52, a copy of which is attached hereto and incorporated by reference.
Additionally, we affirm the Department's denial of the blanket request that appears in the final paragraph of Mr. Clay's records application as unreasonably burdensome. Mr. Clay asked that the Department "identify whether records exist that list other medicaid providers against whom investigations have been concluded in the prior five (5) years, including the identity and location of the provider, summary of proceedings, and disposition." The Attorney General has long recognized that although the purpose of the Open Records Act is to permit "the free and open examination of public records, " the public's right of access is not absolute. See, for example, 92-ORD-1261. As a precondition to inspection, a requesting party must identify with "reasonable particularity" the documents that he or she wishes to inspect. This position is premised on the notion that public employees "are the servants of the people and not only of persons who make extreme and unreasonable demands on their time." OAG 76-375, p. 4. Where the records sought use of or identified, limited class, the requester satisfies the precondition to inspection.
The records to which Mr. Clay requested access were not identified with "reasonable particularity, " nor were they of an identified, limited class. Given the lack of specificity of the request, the Department might have been compelled to expend countless hours in locating, retrieving, and producing the records for inspection. Indeed, Mr. Clay's request was more closely akin to the "open ended any-and-all-records-that-relate-type of requests" that were specifically criticized in 96-ORD-101 and 99-ORD-14, or the "broad discovery request[s]" that were similarly criticized in 00-ORD-79. As framed, Mr. Clay's request imposes an unreasonable burden on the Department for Medicaid Services. We find no error in the Department's refusal to honor his final request. Moreover, the Department has suggested that Mr. Clay resubmit this request, describing the records sought with greater specificity, and has agreed to accommodate such a request "if legally permissible under the Open Records Act. " Having done so, it has discharged its duty under the Act.
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.
Richard Clay319 W. Main StreetP.O. Box 1256Danville, KY 40423
Zach RamseyMichael RobinsonCabinet for Health Services275 East Main StreetFrankfort, KY 40601
John WalkerCabinet for Health Services275 East Main StreetFrankfort, KY 40601
Footnotes
Footnotes
1 Although this response was issued eight days after Mr. Clay submitted his request, only three business days had elapsed. November 22 and 23 were legal holidays, and November 24 and 25 a Saturday and Sunday. The response was therefore timely.
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2 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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, 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.
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