Request By:
Margot van Eck
Box C
961 Holly Springs Rd.
Lexington, KY 40504Zach Ramsey
Director
Division of Program Integrity
Cabinet for Health Services
Department for Medicaid Services
275 E. Main Street
Frankfort, KY 40621-0001John H. Walker
Assistant General Counsel
Cabinet for Health Services
275 E. Main Street, 5W-B
Frankfort, KY 40621-0001
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-Department for Medicaid Services violated the Open Records Act in the disposition of Margot van Eck's August 2002 request for records reflecting Medicaid expenditures for the most recent fiscal year. For the reasons that follow, we find that Department did not fully discharge its duties under KRS 61.872(5) in responding to Ms. van Eck's request. Further, we find that although the Department was not obliged to compile information to conform to the parameters of Ms. van Eck's request, the Department was obliged to honor her alternative request for a copy of its entire database after those fields of information for which statutory protection exists were properly masked. 1
By letter dated August 2, 2002, Ms. van Eck requested Medicaid expenditures for 44 current procedural terminology (CPT) code procedures and the name and business address of all physicians and health care providers to whom any funds were paid under the 44 CPT codes, including the total amount paid to each physician or other health care provider, for the most recent fiscal year. In the alternative, Ms. van Eck requested the Department's entire database, including amounts paid every provider for every treatment code but excluding information specific to any individual receiving Medicaid benefits.
In a response dated September 3, 2002, 2 Zach Ramsey, Director of the Department's Division of Program Integrity, notified Ms. van Eck that her request was "under staff legal review to ascertain if the requested documents (in total or by individual item) are legally permissible for release pursuant to the Kentucky Open Records Act . . . ." Mr. Ramsey advised Ms. van Eck that a determination would be made within the next 7 to 10 working days and that she would receive written notice of the Department's decision within that time frame.
On October 7, 2002, Mr. Ramsey again contacted Ms. van Eck by letter to apologize for the delay in responding. He explained:
This delay resulted from a heavy volume of Open Records activity within our Department during recent weeks. The specific time frame in question, "seven (7) to ten (10) working days (from date of this letter)" was a good faith estimation on our part, although it admittedly was not stated to you as an estimation. While the stated deadline (for responding to you) was obviously missed, on our part, this particular time frame is not statutorily mandated under the provisions of the Kentucky Open Records Act. The Department for Medicaid Services did provide you with a response letter, acknowledging receipt of your Open Records Request and informing you of our procedures for handling same, which met the three (3) day requirement as mandated in KRS 61.872(5).
Continuing, Mr. Ramsey denied her request in its entirety "due to the fact that the above requested information does not pre-exist in our files as a standing independent and public record. " He reasoned:
It is not the intent of the Kentucky Open Records Act, KRS 61.87061.884, to compile, produce, conduct research projects, invent, etc. new information, even if the new information is developable from an existing data base or other source(s) of information. To do so places agency staff under undue burdens while attempting to perform their prescribed job duties vis-a-vis the performance of non-mandated (by statute) functions. Rather, the Open Records Act's purpose is to make available (to the public) pre-existing public records that do not meet statutory criteria that legally exempts said records from release, e.g., the existence of proprietary information, personal confidential data, issues involving on-going investigations, etc. The Office of the Attorney General has opined that "[t]he public is entitled to inspect public documents and to obtain information contained therein, but the fundamental purpose of the Open Records Act is to permit access to non-exempt records, and not to require the compilation of information." 99-ORD-121. "The Kentucky Open Records Act was not intended to provide a requestor with particular 'information', or to require public agencies to compile information to conform to the parameter of a given request. 93-ORD-50. The Attorney General "has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request". See OAG 76-375; 96-ORD-251. Your request requires "compilation" of information. The Department is unaware of any particular public record document that contains the information you request.
In response to Ms. van Eck's alternative request for the entire database reflecting every physician or health care provider receiving Medicaid funds in the most recent fiscal year, including the total amount paid to each provider under every treatment code, Mr. Ramsey advised:
[T]he Department cannot respond without clarification and reasonable particularity and otherwise denies your request in accordance with previous decisions rendered by the Office of the Attorney General. See, for example, 92-ORD-1261, 96-ORD-101, 99-ORD-14, and 00-ORD-79. Your request does not specify exactly which healthcare providers for which you are seeking records. You may resubmit your request with more specificity and clarification regarding the particular providers you are seeking, 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.
Shortly thereafter, Ms. van Eck initiated this appeal asserting that the Department failed to provide clear and convincing evidence that honoring her request, in the format requested, would impose an unreasonable burden on the agency, or, alternatively, to offer any justification for denying her access to its entire existing database after redactions were made to protect individual Medicaid beneficiaries' privacy rights.
In supplemental correspondence directed to this office following commencement of Ms. van Eck's appeal, John H. Walker, Assistant General Counsel for the Cabinet for Health Services, elaborated on the Department's position:
Upon receipt of Ms. Van Eck's request, the Medicaid program determined that a report or compilation of the type requested by Ms. van Eck containing CPT codes and expenditures by physician, does not already exist. The Kentucky Open Records Law does not require the compilation or development of reports or documents in response to requests. See 02-ORD-196. 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. While seemingly small in scale, the request of Ms. Van Eck would place a tremendous burden upon the Department and its staff by requiring them to search its records to ascertain what information was available for those codes, and then to assemble a report on amounts paid to every physician (with that physician's business address) and other health care providers. There are thousands of Medicaid providers in the Commonwealth, and the records of payments to each one would have to be searched. In addition to the staff of the Department's effort to identify payments made and providers paid, the Department's fiscal intermediary, Unisys Corporation, would be required to expend a great deal of time for which the Department pays through its contract, to isolate the supporting data in a readable format capable of use. This is no small or inexpensive task. In the alternative, Ms. Van Eck requests a report on amounts paid every provider for every treatment code used by the Department.
The response of the Department in denying the request of Ms. Van Eck explained to her the scope of work to be done, and the tremendous burden upon agency staff in assembling the information. See correspondence to van Eck, October 7, 2002, page 3. While Ms. Van Eck's response is to characterize the reasons for denial as reliance upon "dicta" within the opinions of the Attorney General, and to suggest the administrative agency is acting not in good faith. The opinions of the Attorney General in the area of open records constitute the law on access to records. The Department does not argue that information on payments is not a public record, but the Department does point out that obligations upon public agencies to create a record or a report where one does not already exist has its limits.
Mr. Walker characterized Ms. van Eck's alternative request that the Department provide her with " all information on payments to all Medicaid providers in the state," as a blanket request that the Department properly denied on the basis of KRS 61.872(6) and "rulings of the Office of the Attorney General." (Emphasis in original.) He urged her to "re-format or narrow the scope of her request and resubmit it" emphasizing that the Department "has not closed the door to her requests, but instead, has suggested alternatives to her initial request."
While we commend the Department for its ongoing efforts to accommodate Ms. van Eck, and we agree that it has no obligation to tailor the format of its existing database to meet her request, we find that the record on appeal does not support its position that it discharged its duties under KRS 61.872(5) or that it demonstrated, by clear and convincing evidence, that disclosure of its existing database, with appropriate redactions to protect identifying information relating to individual Medicaid recipients, would constitute an unreasonable burden within the meaning of KRS 61.872(6).
KRS 61.880 establishes the legal obligations of a public agency upon receipt of an open records request. Subsection (1) of that provision requires a public agency to respond to the requesting party in writing, and within three business days of his request, by releasing the records identified in the request, or citing a statutory basis for denying access and explaining its application to the record withheld. These requirements, the Attorney General has often noted, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. Discharge of these duties is required by law, and is as much a legal obligation of a public agency as the provision of services to the public. 00-ORD-117, p. 3.
The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5). That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing this provision, the Attorney General has observed:
Unless the requested record is "in active use, in storage or not otherwise available," the agency has only three business days to reach a determination on disclosure of public records and to notify the requester of its final decision. If a period of time greater than three business days is required, the agency must give "a detailed explanation of the cause . . . for further delay" and state "the place, time, and earliest date on which the public record will be available for inspection." KRS 61.872(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
In the appeal before us, the Department promptly notified Ms. van Eck in writing that the requested records were under review and that she could expect a final decision within seven to ten working days. This response was deficient insofar as it failed to provide Ms. van Eck with "a detailed explanation of the cause for further delay . . . ." KRS 61.872(5). Over a month later, the Department notified her that her request was denied, and explained that the delay was occasioned by the "heavy volume of Open Records activity within [the] Department during recent weeks." It is the opinion of this office that the explanation for delay that was belatedly offered did not justify the delay and that the Department failed to discharge its duties under KRS 61.880(1) and KRS 61.872(5).
Turning to the substantive issue in this appeal, we find that the Department properly declined to honor Ms. van Eck's request to compile information in a format in which it does not currently exist or to direct the creation of a program to extract that information from its existing database. KRS 61.874(3) speaks directly to this issue, providing in relevant part:
If a public agency is asked to produce a record in a non-standardized format, 3 or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.
(Emphasis added.) In 01-ORD-158, the Attorney General examined this provision, opining:
Although they are not required to do so, public agencies may agree to extract electronically stored information to conform to the parameters of an open records request and in so doing, incur "actual costs" in addition to media and mechanical processing costs. At the state agency level, this would include programming and central processing unit (CPU) charges imposed on the agency by the Governor's Office of Technology to extract the information. Such charges would constitute an actual cost to the agency that could properly be passed along to the requester.
01-ORD-158, p. 4. This position mirrors the holdings in a series of decisions dating from 1995 recognizing that it is within the discretion of a public agency to tailor the format of records to conform to the parameters of a specific request, and to recoup both staff costs and actual costs in the event that it exercises its discretion affirmatively. 95-ORD-82, 96-ORD-133; 98-ORD-151; 99-ORD-68; 02-ORD-148. Because the language of KRS 61.874(3) is precatory in nature, the Department properly exercised its discretion in refusing to reformat its database to conform to the parameters of Ms. van Eck's request.
Our analysis does not end here. Acknowledging that the Department might not be obligated to extract the particular information she sought from its database, Ms. van Eck requested, in the alternative, a copy of the Department's entire database of healthcare providers receiving Medicaid funds for the most recent fiscal year with the exception of information specific to individuals receiving Medicaid benefits. In 02-ORD-89, this office reaffirmed the position that, by virtue of KRS 61.874(3), an agency cannot be required to reformat its database to satisfy a request for information in a specially tailored format. However, at note five of that decision we recognized that "[t]he agency's alternative . . . would be to release the entire database in the format in which it is regularly maintained." 02-ORD-89, p. 12, note 5. Similarly, in 96-ORD-251 we affirmed a public agency's disposition of an open records request, observing:
Although the [agency] may , in its discretion, "tailor the format to meet the request of an individual or a group," it is not obligated to do so. KRS 61.874(3). It satisfies its obligation under the Open Records Act by affording [the requester] access to its existing database.
96-ORD-251, p. 2 (emphasis in original); see also 96-ORD-75 (county occupational tax administrator properly refused to specially tailor format of his records to satisfy requester's specific needs, but agreed to release nonexempt records in format in which they were regularly maintained); 96-ORD-133 (Kentucky State Police could not produce records of citations issued in three counties for offenses under certain statutes because it did not maintain records by county or type of offense, but properly agreed to release all records in their existing format) . While the Department's database may contain more information than Ms. van Eck seeks, or less information than she seeks, it clearly contains information that is responsive to her request and, under the cited line of authorities, the Department is obligated to afford her access to it after redacting individual Medicaid recipient information and other information made confidential by federal enactment. 42 CFR 431.300 et seq . and KRS 61.878(1)(k).
Redaction of the latter information from an existing database is not equivalent to nonobligatory creation of a new record. KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
In 95-ORD-82, the Attorney General analyzed this provision in the context of a request for access to the Louisville Division of Police's arrest database. There we observed:
That database apparently contains both adult and juvenile arrest records. Had Mr. Harris requested the same records in a hard copy format, and those records existed in that format, the Division of Police would be obligated, pursuant to KRS 61.878(4), to separate the juvenile arrest records from the adult arrest records, and would not be entitled to charge him for staff time expended in doing so. [Footnote omitted.] It is the opinion of this office that the type of storage system in which an agency has chosen to maintain its records does not diminish its duties under the Open Records Act. Accordingly, we believe that the Division of Police must discharge its duty under KRS 61.878(4), and must bear the costs attendant to his duty.
We do not concur with the Division of Police in its view that the mere deletion of exempt information from an existing database results in the creation of an entirely new record. Requiring an agency to generate a previously nonexistent record upon request is not, in our view, equivalent to requiring it to redact exempt information from an existing record.
95-ORD-82, p. 3. A copy of 95-ORD-82 is attached hereto and incorporated by reference. See also 98-ORD-33 (Treasurer could not deny access to unclaimed property database on the grounds that exempt and nonexempt information were commingled in the database, and redaction of the exempt information was tantamount to creation of a new record), 02-ORD-148 (Kentucky Fair and Exposition Center required to produce database containing 2002 pay rates for employees, after appropriate redactions were made to protect employee's privacy rights under KRS 61.878(1)(a)). This line of authorities supports Ms. van Eck's right of access to the Department's redacted database and the Department's duty to absorb the costs associated with redaction.
Although the Department, through Mr. Walker, documented the difficulties associated with reformatting the data stored in its database to conform to Ms. van Eck's request, and, as noted, properly declined her original request per KRS 61.874(3), the Department has offered no evidence, clear and convincing or otherwise, that disclosure of a redacted copy of its existing database would impose an unreasonable burden within the contemplation of KRS 61.872(6). This is not to say that such a case could not be made, but the case was not made here. 4 The Department does not indicate that there are problems in redacting fields of information that are unique to its database or in otherwise generating a readable copy of that database. This being the case, we believe that the Department is bound by the line of authority cited above requiring disclosure of a redacted copy of its existing database and that its refusal to do so constituted a violation of the Open Records 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 proceeding.
Footnotes
Footnotes
1 One issue in Ms. van Eck's appeal was subsequently resolved by disclosure of the record in dispute. In addition to the still-disputed records identified above, Ms. van Eck requested the most recent annual fraud and abuse report required by KRS 205.8483. Although the Department initially denied this portion of her request, asserting that it is not the official custodian of the report, the Department obtained a copy from the Office of Inspector General and forwarded it to Ms. van Eck along with a copy of its supplemental response. Shortly thereafter, Ms. van Eck withdrew this portion of her appeal.
2 The Department received Ms. van Eck's August 26 request on August 29.
3 Standard format is defined at KRS 61.874(2)(b) as:
The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
4 On this issue, the Ohio Electronics Records Committee has observed:
In today's technological environment, information is routinely maintained and stored in electronic databases. Ohio's Public Records Act, located in Section 149 of the Ohio Revised Code, requires that public entities make records [footnote omitted] contained within electronic databases available to the public upon request.
Generally, requestors have specific needs and require only the generated output of databases to obtain the records or information being sought. These outputs are routinely filtered or sorted through report queries or standard reporting processes to present information in a meaningful manner to the user.
The Public Records Act does not require an agency to create new records by searching and retrieving information from pre-existing records or databases. However, if there is an existing query, filter, or sort then the record already exists for the purposes of the Public Records Act.
Because of this, a great challenge exists when public records requests are for an entire database or portions of a database. A database can consist of many interdependent components. Such components can include, but are not limited to, the following: software, hardware, program logic, data tables, security tables, access controls, data and table links, mathematical and other logical computations, etc. In some cases, records are stored in multiple databases and on multiple operating platforms, which further complicates the issue. In essence, raw data or records are not always useful without the proper components of the database being linked together or made available.
The challenge is to provide records as legally required by taking reasonable measures to extract the records requested without compromising system security or providing proprietary information which may be in violation of licensing agreements.
Ohio Electronic Records Committee: Databases as Public Records Guidelines . In the appeal before us, no effort was made to describe whatever challenges may exist relative to disclosure of the Department's database.