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 subverted the intent of the Open Records Act, short of denial of inspection, by failing to afford Lexington Herald-Leader reporters Karla Dooley and Barbara Isaacs timely access to a broad range of records relating to the Cabinet's Medicaid program. For the reasons that follow, we find that although the Cabinet's response to the reporters' request did not comply, in all particulars, with the requirements of KRS 61.872(5), the record on appeal does not support the Herald-Leader's claim that the Cabinet has failed to afford Ms. Dooley and Ms. Isaacs timely access to the records identified in their request.
By letter dated October 3, 2002, Ms. Dooley requested copies of or access to:
. Records, summaries or analysis that indicate total Medicaid enrollment by age, county or region, and program for each fiscal year from 1998 through 2003.
. Records, summaries or analysis that indicate the number of KenPAC providers in Kentucky, their names, county or region, type of provider (i.e. hospital, internist, etc.) stated KenPAC patient capacity and total claims paid for each fiscal year from 1998 through 2003, as well as monthly reports reflecting some or all of this data for the fiscal years 1998 through 2003.
. Records, summaries or analysis that indicate the number of Passport providers in Kentucky, their names, county, type of provider (i.e. hospital, internist, etc.) stated Passport patient capacity and total claims paid each fiscal year between 1998 through 2003, as well as monthly reports reflecting some or all of this data for the fiscal years 1998 through 2003.
. Medicaid, KenPAC, and Passport rate schedules for each fiscal year from 1998 through 2003 or summaries of changes to the schedule for each of those years. If differences among regions exist, please include records indicating what those differences are.
. Records, summaries or analysis indicating the length of time the state took to pay clean claims filed under the Medicaid program for each fiscal year from 1998 through 2003. If possible, please break this down by county or region.
. The MA 264 report for each quarter for the years 1998 through 2002.
The Herald-Leader maintains that this request was faxed to the Cabinet on October 3, but was later advised that the faxed request was not received. On October 10 or 11, the request was faxed again.
On October 15, Assistant General Counsel John H. Walker responded to Ms. Dooley's request, advising her as follows:
The Cabinet is in the process of reviewing the request to determine what it may have which will fit your request. This process will take approximately five more business days, and at that time, the agency will be able to give you a more specific response to your various requests for data.
Having received no further communication, on November 1 Herald-Leader Editor Deedra Lawhead contacted the Cabinet to ascertain the status of Ms. Dooley's request. Cabinet spokesman Gil Lawson indicated that Cabinet attorneys had determined that "they would be able to say what records they would be able to make available" in "10 to 15 days."
Dissatisfied with this response, the Herald-Leader initiated this appeal on November 7, 2002, asserting that the Cabinet has failed to comply with the three day statutory deadline, or, alternatively, KRS 61.872(5). In support of its position, the Herald-Leader asserts that "[m]any, if not all, of the records being sought should be available and regularly in use even though the Cabinet insists more time is needed to determine if records are available."
In supplemental correspondence directed to this office, Mr. Walker elaborated on the Cabinet's position. By way of factual background, he explained:
The Cabinet for Health Services has received a series of telephone calls from reporters of the Lexington Herald-Leader requesting various reports and documents from the Department for Medicaid Services relating to operation and administration of its program, most recently a number of requests regarding its Kentucky Patient Access and Care (KenPAC) Program. In response to each telephonic request, Mr. Lawson has worked to focus the requester on what information may or may not be available in the format requested. This initial conversation often serves both parties well. It gives the Cabinet a sense of what the request entails, and allows the requester to focus on specific information, and in so doing, hopefully narrow the scope of the broader requests. A written request may follow.
With respect to the particular request that gave rise to the Herald-Leader appeal, Mr. Walker observed:
While seemingly narrow in scope - all requests appear to relate to Medicaid, KenPAC and Passport - the nature of the information sought from the Department is comprehensive and requires a review of data and reports to determine whether the information sought is in a format useful to the requester. The MS (not MA) 264 report referenced in request numbers one and six is a document filed each year with a supplement in the sixth month which would provide information on enrollment by age, county, region, and program. The Department is in the process of obtaining copies of the reports for the last four (4) fiscal years. Just the annual reports obtained thus far exceed 2,500 pages of material.
The second request is for a list of KenPAC providers by name, region, specialty, patient capacity, and record of claims paid for four (4) years. A review of KenPAC records does not disclose a document with this information on it. To fill the request would require a separate computer programmed print-out. This is an added expense to the Department both in staff time and expenditure of funds. An effort is being made to identify any reports which might have this information on it without the need for an additional report. Further, because the request asks for statistical information from as long ago as 1998, an added effort must be made to identify what can be obtained from reports, where reports for those years are located, and how best to retrieve the data. This takes time.
With respect to the third request, the Passport program is the Medicaid managed care program for recipients in a sixteen (16) county area surrounding Louisville and Jefferson County. The record system for Passport is separate from the Department for Medicaid Services. It is necessary to contact the Passport program in Louisville, ask for a list of providers by specialty in each county, determine whether the Passport program has a report of patient capacity and a record of claims paid over a period of four (4) years. Some records of activity in the region are available within Medicaid, but experience has proven to the Medicaid program that care must be taken in review of the statistics in any document which could prove useful to make certain the document does not include incomplete or misleading data. This process has begun, but it takes time. The names of providers and specialties may not be too difficult, but verifying the patient capacity and payment record over four (4) years is more time consuming.
With respect to the fourth request for information, rate or reimbursement schedules for Medicaid and KenPAC are identical, with the exception of a per patient per month payment of $ 3.00 to $ 4.00 for KenPAC providers to be used to cover the associated cost of patient care management. Because the requester seeks four (4) years of data, retrieving this information will take time. The Passport program has separate reimbursement rates negotiated with the providers enrolled with the program. Again, the Department for Medicaid Services is reviewing its records to see whether this information on Passport exists within its files, and the release of any information on Passport on rate schedules will have to be reviewed by Passport prior to release.
With respect to the fifth request for records, summaries or analysis of the length of time for the payment of clean claims for the past four (4) years, the Department for Medicaid Services can supply this information on the past year, but access to records showing past years' experience is in question, and obtaining this information from existing records will take time. Further, the information is not broken down by county or region.
Amplifying on the difficulties associated with responding to each of these requests, Mr. Walker concluded:
Because the request was often not specific as to a document, or what types of documents it wanted other than references to analyses and lists and summaries, the threshold question for the agency is what exists which fits the bill. Of those documents which exist, does the information contained therein fit the request, or is it incomplete, and if so, how is it incomplete? When the requester asks for specific information on clean claims and the range of reimbursement rates, where is that information located, and what time frame does it cover? Does the Department have such information available for years past? The administrative agency's response, rather than provide a specific time to pick up records, alerts them to the concern over the scope of the request and whether the agency has that which is sought. It is neither a denial, nor is it an attempt to evade responsibility for assembling information in response. Consistent with what the paper was advised over the telephone by Mr. Lawson more than once, the agency is actively looking to see what it has, in what format, containing what information, and whether that information is complete or potentially misleading due to outdated or incomplete statistics. This is a process of search, identification, and evaluation, not mere copying.
. . .
The most simple solution to the delays caused by the search for accurate information would be to initiate a computer run for information and produce a print-out of data which the reporters from the Herald-Leader could read. That is not a viable option to an agency facing a multi-hundred million dollar deficit. It would cost time for the staff of the agency and further expense to the agency in using its scarce resource of hours for computer work by the fiscal agent, Unisys Corporation. The Office of the Attorney General has long recognized that a public agency is not obligated to compile a list, create a record, or conduct research or to search its records for information to satisfy an open records request. See OAG 76-375; 90-101; 96-ORD-251; and 02-ORD-165. If the information exists within the currently available data, it will be assembled and made available to the newspaper for its research project. The agency will then explore with the newspaper how to resolve any gaps in data.
. . .
The Cabinet is attempting to obtain that information it can find for the purpose of supplying it to the Herald-Leader. That the process of locating and verifying information sought is taking longer than an editor may wish is a function of the scope of broad request rather than of an intent by the Cabinet not to respond.
It is the opinion of this office that the Cabinet's supplemental response to the Herald-Leader's request contains the "detailed explanation of the cause . . . for . . . delay" that was envisioned by the legislature in enacting KRS 61.872(5). Had the Cabinet provided the Herald-Leader with a similar explanation, along with the earliest date on which the records would be available for inspection, in response to the initial request, that response would have conformed, in all particulars, with the requirements of KRS 61.872(5) . Because the Cabinet has not yet identified a disclosure date that is reasonable in light of the scope of the Herald-Leader's request, we find that it is not yet in full compliance with the Open Records Act.
In a recent open records decision, the Attorney General observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). [T]he Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) Additionally, we note that in OAG 92-117 this office made abundantly clear that the Act "normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 84-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5.
01-ORD-140, pp. 3, 4.
The record on appeal in OAG 92-117, cited above, supported an agency delay of twenty-one days in honoring an open records request. The agency, Department for Social Services, demonstrated that it served one hundred and twenty-three local offices in one hundred and twenty counties across the state, each of which maintained its own records. Requests for records maintained in local offices were nevertheless processed by and through the Department for Social Services, which was obliged, upon receipt of a request, to locate the records in the appropriate county office, retrieve those records, and review them before releasing them for inspection. Given the broad scope of the request ("any and all records in the possession of the [then] Cabinet for Human Resources upon which [requester's client's] name appears or which may concern her"), the ongoing nature of the Department's investigation into the requester's client, and the need to obtain a copy of the records, and review them upon conclusion of the investigation but prior to making disclosure, this office concluded that "twenty-one days [did] not constitute an inordinate delay in the release of public records, " warning that "we [did] not mean to adopt a rule of general application vis-a-vis 'timely access.'" OAG 92-117, p. 5; see also 02-ORD-142; 02-ORD-158.
Conversely, the record on appeal in 01-ORD-140, cited above, did not support a delay of ten to thirteen days. The requester identified three specific documents which he wished to inspect, and the records custodian acknowledged that he knew "precisely where the documents were located." The records custodian did not maintain that the records contained a mixture of exempt and nonexempt information, necessitating review prior to disclosure for purposes of redaction. Thus, we concluded that the agency did not offer a satisfactory explanation for the ten to thirteen day delay, and that its disposition of the request was inconsistent with the principle that "the value of information is partly a function of time." Fiduccia at 1041; see also 93-ORD-134; 99-ORD-44; 00-ORD-117.
The facts of the appeal before us cannot be easily analogized to either of these decisions. This is because, as the Cabinet demonstrated in its supplemental response, there is "no compiled record corresponding to the request." OAG 89-115, p. 3. On this basis alone, the Cabinet could have, arguably at least, denied the Herald-Leader's request. See 02-ORD-213 (County Attorney properly refused to conduct research in order to locate records that contained procedures and criteria relating to practice before the courts in child support matters). In the cited opinion, the Attorney General recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAGs 79-547 and 83-333. There the requester sought the addresses of individuals whose names he had previously secured. We characterized this request as "a request for research to be performed, rather than for inspection of reasonably identified public records. " See also 95-ORD-27 and 96-ORD-53; compare 94-ORD-121 (university improperly equated an obligatory search with nonobligatory research when it refused to provide "'rules' promulgated by the Department for Libraries and Archives concerning the parameters within which the university . . . records management program must operate," and its retention and disposal schedule required these "rules" to be compiled and separately maintained in a designated area of the university). Rather than deny the request on this basis, the Cabinet agreed to conduct a search for records that might yield the information sought. As indicated, the Cabinet's supplemental response demonstrates that the information sought has not already been compiled in a record or group of records, and that locating, retrieving, and evaluating records which contain that information requires the expenditure of considerable staff time and effort.
We deal not with the record keeping system that the Herald-Leader believes should exist, but with the record keeping system that does exist. It remains for the Cabinet to provide a good faith estimate of how much time and effort are required by identifying the earliest date on which records containing the requested information will be available. As long as that date is reasonable in light of the broad scope of the Herald-Leader's request, and the records are produced on or before that date, 1 we believe that the Open Records Act requires the Cabinet to do no more.
Approximately one month elapsed between the date Ms. Dooley submitted her request and the date on which the Herald-Leader initiated this appeal. The Cabinet's November 13 response to the appeal suggests that efforts were still underway on that date to locate, retrieve, and evaluate records containing the information she requested. Neither the Cabinet nor the Herald-Leader has notified this office that responsive records have been produced. Clearly, the Cabinet is fast approaching the outermost limit of what is reasonable in light of the breadth of Ms. Dooley's request. We urge the Cabinet to bear in mind that "it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, and to focus its efforts on release of the records on the earliest date certain.
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.
Tom Eblen100 Midland AvenueLexington, KY 40508-1999
Zach RamseyCabinet for Health Services275 East Main StreetFrankfort, KY 40601-0001
John H. WalkerAssistant General CounselCabinet for Health Services275 East Main StreetFrankfort, KY 40601-0001
Gil LawsonOffice of CommunicationsCabinet for Health Services275 East Main StreetFrankfort, KY 40621-0001
Footnotes
Footnotes
1 In 01-ORD-38, this office stated that "KRS 61.872(5) envisions designation of the place, time, and earliest date certain, not a projected or speculative date, when the records will be available for inspection. " (Emphasis in original.)