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 violated the Open Records Act in denying Carole D. Christian's request for records that "will help provide an understanding of the new payment methodology" for Medicaid reimbursement for hospital emergency room services. For the reasons that follow, we affirm the Cabinet's denial of Ms. Christian's request on the basis of KRS 61.878(1)(i) and (j).
By letter dated August 26, 2002, Ms. Christian requested copies of:
1. Any reports, analyses, studies, memoranda or other documents analyzing possible savings to the Medicaid program as a result of the new methodology for reimbursement for hospital emergency room services.
2. Any studies, reports, analyses, memoranda or other documents by which the Department of Medicaid Services analyzed the costs to hospitals of providing emergency care, developed or reviewed by the Department prior to adoption of the new method of payment for emergency room visits.
3. Any materials showing how the payments [sic] rates for the various levels of services were calculated, for example, showing any analysis of average costs of providing the services incurred by hospitals to provide services associated with each code.
On September 6, 2002, Cabinet for Health Services Assistant General Counsel John H. Walker denied Ms. Christian's request. Relying on KRS 61.878(1)(i) and (j), he explained that "materials in those records pertaining to reimbursement for emergency room services constitute drafts or notes or preliminary memoranda or recommendations in which opinions are expressed or policies formulated. "
In response to supplemental correspondence in which Ms. Christian asserted that the Cabinet's reliance on the cited exemptions was misplaced, insofar as the exemptions "protect only preliminary thoughts, impressions used to determine Medicaid payment rates and expression of opinions[,] . . . not . . . factual data or analyses or mathematical calculations, " the Cabinet reexamined its position and provided Ms. Christian with "statistical materials which were subject to analysis during the process of developing the regulation" and other materials prepared by Myers and Stauffer and by Unisys Corporation relating to the reimbursement rate. With respect to the remaining records, Mr. Walker advised:
[I]t continues to be the position of the agency that the materials consisting of electronic mail, charts and memos pertaining to the concept of flat rate reimbursement for emergency services and the work of the agency staff in formulating the proposed regulation consist of preliminary recommendations and memoranda in which opinions are expressed and policies formulated. This material is specifically excluded from disclosure pursuant to KRS 61.878(1)(j).
Dissatisfied with the Cabinet's release of what she characterized as "marketing materials," Ms. Christian subsequently initiated this appeal arguing that she is not seeking "preliminary discussions on policy matters," but is instead "seek[ing] to learn the underlying factual basis for a new law," including the data and mathematical calculations used. Additionally, she noted, KRS 61.878(2) requires disclosure of statistical information notwithstanding the exemptions to public inspection codified at KRS 61.878(1)(a) through (l).
In correspondence directed to this office following commencement of Ms. Christian's appeal, Mr. Walker elaborated on the Cabinet's position. He explained:
The Medicaid program in Kentucky is one of the most complex and challenging programs to administer in all of state government. The work of the Department in preparing the regulation encompasses a broad range of activities by a number of people in the Medicaid program. The work done by those in Medicaid developing the regulation and the reimbursement structure involve communications among staff and internal analysis of issues and rates proposed. It is important to the administrative agency that its staff have the ability to communicate with one another on the issues confronting the program, and in the process of developing a regulation, should have the ability to express themselves and explore the analysis of issues within the framework of the development process and in an unfettered manner. These communications among staff, their analyses, expressions of opinion and recommendations to decision makers within the Cabinet structure must be kept confidential and under the protection of the exemptions to the general rule of open public records pursuant to KRS 61.878(1)(j) in that they constitute preliminary recommendations and preliminary memoranda in which opinions are expressed and policies formulated.
The law firm seeks to characterize its inquiry as one focused toward the "factual basis for a new law." In fact, the broad scope of the request shows an attempt to summon up any documents pertaining to months of work on a regulation containing a reimbursement methodology clearly based upon factors already known to the affected providers. Rather than a search for "statistical information," the request of the firm seeks to examine much more than statistics. Indeed, it appears that the law firm hopes to fish through pages and pages of preliminary analyses, opinions and recommendations on the formulation of public policy clearly protected from disclosure under the open records law . . . .
Having considered the arguments advanced by each of the parties to this appeal, we affirm the Cabinet's denial of Ms. Christian's request.
In discharging the statutory duties assigned to him by KRS 61.880(2), the Attorney General is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as by the Kentucky Supreme Court's holding in Board of Examiners of Psychologists above at 327 that the Open Records Act "exhibits a general bias favoring disclosure. " Nevertheless, we are fully cognizant of that fact that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;" and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated are recommended." KRS 61.878(1) [(i) - (j)]. From these exclusions we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality.
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577-578; see also,
Courier-Journal and Louisville Times Co. v. Jones, Ky. App., 895 S.W.2d 6, 8 (1995) (recognizing that "the concept of governmental confidentiality has not been totally diluted by the Open Records Act" ). Further, we recognize, as in Beckham, that "with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly," and not "to add or subtract from the legislative enactment or discover meaning not reasonably ascertainable from the language used." Beckham at 577, citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
Guided by these principles, as well as an evolving body of case law, the Attorney General has long recognized that public records that are preliminary in nature forfeit their exempt status only if they are adopted by the agency as part of its final action.
City of Louisville v. Courier-Journal and Louisville Time, Ky. App., 637 S.W.2d 2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983);
University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992); 00-ORD-139; compare 00-ORD-178. The latter open records decisions reflect the Attorney General's commitment to implement the intent of the General Assembly in carving out these exemptions. This office has frequently noted that KRS 61.878(1)(i) and (j) are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency. In sum:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2.
Numerous decisions of this office support the view that intra- or inter-office communications are exempt from public inspection where the communications are preliminary (not evidence of final agency action) and contain the opinions, formulations, or recommendations of their authors. For example, in 01-ORD-87 the Attorney General affirmed a plant board's denial of a request for, inter alia, financial projections relating to expansion of existing services, concluding that the report contained "broad opinion and conjecture based on an analysis of projected data, formulate[d] policy, and [made] recommendations relative to the expansion of services" and therefore "[fell] squarely within the parameters of KRS 61.878(1)(j). 01-ORD-87, p. 9. We relied, in part, on 00-ORD-139 in which we upheld a sanitation district's denial of a request for a report dealing with possible rate increases. Rejecting the requester's attempt to distinguish a "preliminary report containing a list of options," relative to the rate increase, from a preliminary memorandum in which opinions are expressed or policies formulated or recommended, we observed:
Webster's New World Dictionary defines the term "option" as "something that is or can be chosen; choice," [footnote omitted], and the term "recommendation" as "recommending or calling attention to, a person or thing as suited to some purpose." [Footnote omitted.] Both involve the presentation and assessment of alternatives and anticipate the adoption of one, and rejection of the remaining alternatives. To hold otherwise would be to elevate form over substance.
00-ORD-139, p. 10. In these cases, the disputed records were deemed to qualify for exclusion notwithstanding the fact that they consisted of numerical data and analyses of that data. Accord, 98-ORD-144 (affirming state cabinet's denial of request for records relating to agency's confirmation of the absence of asbestos in state office building); 01-ORD-222 (affirming city's denial of request for plans, maps, and other documentation relating to location of cell tower). Moreover, in each of these decisions, the agencies against which the open records appeals had been filed had not yet taken final action on the proposals before them, and we reminded the agency that the disputed records enjoyed the protections afforded by KRS 61.878(1)(i) and (j) "until such time as a final decision [was] made." When a final decision was made, we concluded, the records "[would] forfeit [their] preliminary characterization to the extent that [they were] adopted as part of that final action. " 01-ORD-87, p. 7.
Conversely, in 00-ORD-178 the Attorney General determined that the Department of Corrections improperly relied on KRS 61.878(1)(j) as the basis for denying an inmate request for an inmate's resident record card containing numerical calculations for early release based on good time credits earned. At page 3 of that decision, we opined:
Simply stated, these calculations no not involve subjective expression of opinion, but the immutable principles of mathematics. OAG 80-596, p. 3. No doubt, the decision to award the good time credits must be supported by favorable recommendations and opinions, but the calculations for the amount of a good time award are based on a precise mathematical formula that does not admit of subjective variation. Although the entry is "preliminary" because it reflects an occurrence, namely early release, that is conditioned upon completion of a prescribed program, it consists of neither recommendation, opinion, nor policy formulation. See 97-ORD-183 (holding that list of unclaimed property owners and the amount or value of the unclaimed property is not a subjective expression of opinion but an objective report of facts, and therefore does not qualify for exclusion under KRS 61.878(1)(j)).
We therefore held that the purpose underlying KRS 61.878(1)(j), namely to ensure "an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision, " was not served by nondisclosure of final and immutable numerical calculations.
It is the opinion of this office that the facts of the appeal before us are more closely analogous to the facts before us in 01-ORD-87 and 00-ORD-139, in which we affirmed agency denial notwithstanding the fact that the records in dispute consisted of projected financial data and non-final analyses of that data, than the facts before us in 00-ORD-178 and 97-ORD-183, in which we did not affirm agency denial because the records in dispute consisted of final and immutable numerical calculations and data. The records at issue in this appeal consist of "electronic mail, charts and memos pertaining to the concept of flat rate reimbursement for emergency services" and "involv[ing] communications among staff and internal analysis of issues and rates proposed." They are not statistical in nature and therefore nonexempt under KRS 61.878(2), as Ms. Christian argues, but are instead part and parcel of "the tools which a public employee or officer uses in hammering out official action within the function of his office," OAG 78-626, p. 2, in this case establishing a Medicaid payment rate "on bases that relate the amount of the payment to the cost of providing the services." KRS 205.560(2).
Ultimately, of course, the Cabinet determined "the percentage of services provided by each hospital for a category of care in an emergency room, " and released this data along with materials "illustrating how to calculate payments." This, then, was the basis upon which the final payment methodology was calculated, all other projected financial data, opinions related thereto, and analyses thereof having been rejected. Those preliminary emails, memoranda, charts and other documents that represent the rejected numerical calculations, financial projections, opinions, formulations, and recommendations did not forfeit their preliminary characterization and were properly withheld. It is with regard to these types of records that "the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality. " Beckham at 578.
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.
Carole D. ChristianWyatt, Tarrant & Combs, LLP500 West Jefferson Street, Ste. 2800Louisville, KY 40202-2898
Mike Robinson, CommissionerDepartment for Medicaid ServicesCabinet for Health Services275 East Main StreetFrankfort, KY 40621-0001
John H. WalkerAssistant General CounselCabinet for Health ServicesCommonwealth of KentuckyFrankfort, KY 40601-0001