Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health Services violated the Open Records Act in the disposition of Frank F. Chuppe's July 5, 2002 request, on behalf of his client, EPI Corporation, for:
All program review decisions, recommended decisions by the Cabinet for Human Resources or Cabinet for Health Services deciding any appeal of audit adjustment cost reports submitted by Immediate Care or Skilled Nursing Facilities issued from 1979 through 2001.
For the reasons that follow, and on the authorities cited, we affirm the Cabinet's disposition of Mr. Chuppe's request.
In his letter of appeal, Mr. Chuppe explained that this request was an attempt to narrow a previous request he had made in which he had asked for decisions and rulings concerning "any Medicaid provider, " which had been denied by the Cabinet. 1
By letter dated August 16, 2002, Ann Truitt Hunsaker, Assistant Counsel, responding to Mr. Chuppe's July 5, 2002 request and a letter of August 12, 2002, denied his request. In denying the request, Ms. Hunsaker explained:
As we have attempted to explain to you on several occasions, the records you seek, to the extent that they exist, are maintained by the Division for Long Term Care ("Division") in the Department for Medicare Services ("Department"). The Division maintains all records by facility/by fiscal year. If a facility submitted its cost report, the Department decided the facility's reimbursement rate, and no further action took place, then that record of that facility for that year is closed. If the facility's record is five years old, it will probably be in the state archives. If the facility's record is ten years old, it has probably been destroyed.
If a facility submitted its cost report, the Department decided the facility's reimbursement rate and the facility appealed the determination, then that record, including the appeal documents and the decision or decisions made in the appeal process, is still maintained by facility/by fiscal year. If the facility's record is five years old, it will probably be in the state archives. If the facility's record is ten years old, it has probably been destroyed.
If a facility submitted its cost report, the Department decided the facility's reimbursement rate and the facility rate was subsequently audited and adjusted, then that record, including the appeal documents and the decision or decisions made in the appeal process, is still maintained by facility/by fiscal year. If the facility's record is five years old, it will probably be in the state archives. If the facility's record is ten years old, it has probably been destroyed.
There are only a limited number of ways we can say what we have said previously. The Cabinet does not maintain records by decision on the rate, by appeal, by decisions on appeal, or by issue. Nor does the Cabinet have the capacity to research such for you or your client. Therefore, a request that the Cabinet conduct such research is denied pursuant to KRS 61.872[6] i[n] that such effort places an unreasonable burden on the agency.
We are, with this letter, providing you a twenty (20) page list of long term care providers who have signed provider agreements with the Medicaid program. Perhaps this list can serve as a beginning point for you and your client to narrow your request. We obtained this list through a special request to the Cabinet's Medicaid software. We created it for you and your client even though the Open Records Act does not require that we create documents in an open records request.
While your current open records request remains much too broad and continues to be burdensome, the Cabinet does have records that deal with rate issues for long term care facilities who are providers of Medicaid services, filed by facility by fiscal year. As such, these are public records and are open to public inspection by any person.
We will make the specific records you identify for a particular provider available upon your request for the record in writing. Representatives of the Cabinet will be available to facilitate by reviewing the records prior to making them accessible. The agency representative will determine if materials have to be redacted because of the Open Records Act. You will then be permitted to review the redacted file and identify any copies of documents to be made. The Cabinet will make the copies and bill you accordingly.
Please advise us of when you will be available to review the records and we will make them available for your inspection . . . .
In his letter of appeal, Mr. Chuppe argues that the Cabinet's characterization of his request as "unreasonably burdensome" is "entirely unavailing." He further argues that the burden of retrieving the requested records is due to the inadequacy of the Cabinet's filing system.
After receipt of Notification of the appeal and a copy of the letter of appeal, John H. Walker, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Walker reiterated that Mr. Chuppe's first request had been denied, under KRS 61.872(6), on the basis "that the records of the agency are maintained in individual provider files, and that the activity of assembling all decisions of the Cabinet on all audit cases for all providers for the past twenty-two (22) years would pose an unreasonable burden upon the agency. Addressing the issues in the instant appeal, Mr. Walker explained:
In response, the law firm [Mr. Chuppe's] then asked for all program review decisions and recommended decisions by the Cabinet on any appeal by an intermediate care or skilled care facility in the past twenty-two (22) years. Intermediate and skilled care facilities are recognized as nursing facility levels of care. The Cabinet for Health Services licenses and certifies for Medicare and Medicaid over 300 nursing facilities in this state. In the realm of audit appeals, it is the experience of the Department for Medicaid Services that a single facility may appeal three or more elements of a Cabinet decision on allowable cost or reimbursement at one time. In addition to the primary decision by the Cabinet which may have prompted an appeal by a facility, there may be multiple decisions by the Cabinet on issues raised during the course of appeals by facilities. While the law firm has made an effort to limit the scope of its request, the second request is still far too broad and far too general to not constitute a burden upon the administrative agency staff charged with the responsibility to assemble files, review all materials in files to ascertain if decisions meeting those sought exist in those files, review the decisions for confidentiality concerns, and copy and prepare those materials copied for distribution.
. . . What the requester has asked is for the Cabinet to assemble a collection or catalog of previously issued rate appeal decisions covering decades of time. It has been explained to the requester more than once that such a document or record compilation does not exist. When such a compilation or list does not exist, it is not the obligation of the administrative agency to compile or to create one. See OAG 76-375; OAG 89-61.
A review of the second response of the agency clearly shows that the agency has made an effort to be of assistance to the law firm in an effort to more carefully narrow the focus of its request. The Cabinet has offered to make specific records for specific providers available for inspection upon request. In furtherance of this effort, the Cabinet has furnished the requester with a twenty (20) page list of long term care providers who have provider agreements with the Medicaid program. The law firm requesting the records has extensive experience in representing health care entities in the area of audits, and has argued many times for many facilities against what it believes to be inappropriate decisions by the Medicaid agency impacting the reimbursement or allowable costs for its clients. Rather than deny the requester any opportunity to review records, the Cabinet has extended its hand in cooperation to try to assist the requester in obtaining records it feels will be helpful. Indeed, the Cabinet has gone to the extraordinary length of offering to make its staff available for reviewing records once the requester has identified which records it seeks in order to more quickly respond to the request.
In any review of a cost report, and in any appeal of a departmental decision on reimbursement and allowable costs, the guidelines applied by the Medicaid program are cost principles contained within applicable manuals and regulations. In the event the Medicaid program would seek to use a prior ruling on a separate facility's reimbursement appeal as precedent, a copy of that ruling sought to be used as precedent would be made a part of the record of the appeal and would be furnished counsel for the appellant.
The requester seeks to minimize the response of the Cabinet by characterizing the response as an excuse for sloppy record keeping. Such allegations are specious and without merit. Contrary to the requester's opinion, a careful review shows the response of the Cabinet for Health Services to be one which is reasonable and constructive. In its responses, the Cabinet has relied on the provisions of KRS 61.872(6) and upon the recognized protections within the construction of the Open Records Act acknowledged by the Office of the Attorney General and afforded administrative agencies in responding to "any and all" type requests where no compendium or list or abstract exists.
We are asked to determine whether the Cabinet's disposition of Mr. Chuppe's request was proper under the requirements of the Open Records Act. For the reasons that follow, and on the authorities cited, we affirm the Cabinet's disposition of Mr. Chuppe's request.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In 97-ORD-88, this office analyzed in great depth the propriety of an agency's reliance on KRS 61.872(6) to justify its denial of an open records request. At pages 6 and 7 of that decision we observed:
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.[871]. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872[(6)] to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:
Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.
Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58, we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the Office of Economic Development" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872[(6)]. That agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt material.
In the instant appeal, the Cabinet has indicated that the request covers records maintained over a period of twenty-two years; that the agency does not maintain a compendium of the requested information; that the Cabinet licenses and certifies over 300 nursing facilities in this state; that the Cabinet maintains all records by facility/fiscal year; that the Cabinet does not maintain decisions on the rate, by appeal, by decisions on appeal, or by issue; that to search for the requested information, the Cabinet would be required to search through each facility's records for every year for up to twenty-two years to see whether or not the requested information exists in a particular file; that a single facility may appeal three or more elements of a Cabinet decision on allowable cost or reimbursement at one time; that there may be multiple decisions by the Cabinet on issues raised during the course of appeals by facilities; that if a file contained decisions meeting those sought, the decisions would have to be reviewed for confidentiality concerns; that files over five years old would probably be in state archives; and that files over ten years old have probably been destroyed.
The Cabinet has indicated that it does not have a compendium or existing record containing the information sought. An agency is not required to compile a record meeting the parameters of an open records request. This office has also long recognized that a public agency is not obligated to compile a list or create a record or conduct research or search its records for the information to satisfy an open records request. See, e.g., OAG 76-375; OAG 90-101; 96-ORD-251; 02-ORD-165. Moreover, the Cabinet adequately explained why the request was overly broad, i.e., the records sought could not be readily retrieved as requested due to the fact that agency records were not maintained under the categories of information sought and that to obtain the information sought, the agency would have to search through each individual facility's files by fiscal year over a twenty-two year period to find the requested information, if it existed, and then review and redact confidential information, before making copies of the records available to the requester.
Under these facts, we conclude that the Cabinet has met its burden of establishing that compliance with the request would place an unreasonable burden on the agency. Accordingly, we find the Cabinet properly denied the request under authority of KRS 61.872(6).
In the alternative, the Cabinet has agreed to make its records available for Mr. Chuppe's inspection, so that he may search the records for the information he seeks. As indicated in the Cabinet's responses set out above, the agency has provided Mr. Chuppe with a twenty page list of facilities who have signed agreements with the Medicaid program and agreed to make specifically identified records for particular providers available for inspection. It also has agreed to make representatives of the Cabinet available to facilitate review of the records by reviewing and redacting confidential information before making copies of redacted records. The parties should continue to work together to resolve any differences or misunderstandings related to records sought.
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.
Footnotes
Footnotes
1 In denying this previous request, the Cabinet had advised:
With regard to the substance of your request, specifically the request for "all program review decisions, recommended decisions or final rulings of the Cabinet for Human Resources setting any appeal of audit adjustment of any Medicaid providers for the years 1979 through 2001", our client advises that the Cabinet does not maintain a compendium of this information. The information, to the extent it exists, is maintained in individual provider files. This will place an unreasonable burden in producing the records. As a consequence, and consistent with the Open Records Act, KRS 61.872(6), the Cabinet will not provide this information. Moreover, even if compiled the information requested probably includes confidential or proprietary information under KRS 61.878(1)(c).