Request By:
John Wilson
Mike A. Wright
Jean Ann Myatt
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General's Medicaid Fraud and Abuse Control Division violated the Open Records Act in the disposition of John Wilson's November 14, 2007, request for a copy of "all investigations and communications between [the OAG] and the Bluegrass/Oakwood communities located at 2441 South Highway 27, in Somerset, Kentucky . . . includ[ing] all investigations, communications, reports of abuse, neglect, Medicaid fraud, patient abuse, and any other reports concerning Bluegrass/Oakwood or any of their employees or contracts . . . for the time period of November 1, 2005, to the present." For the reasons that follow, we find that the Division's disposition of Mr. Wilson's request was both procedurally and substantively deficient.
By letter dated November 14, 2007, the Medicaid Fraud and Abuse Control Division notified Mr. Wilson that responsive records had been located, but that "[s]ome of the records . . . must be retrieved from archives." 1 The Division further notified Mr. Wilson that he could "expect to have the documents available by November 23, 2007" and that the Division would "contact [him] with further information regarding satisfaction of [his] request." Having received no further information from the Division, Mr. Wilson initiated this appeal on December 18, 2007.
Shortly after it was notified of Mr. Wilson's open records appeal, 2 the Division issued a final response to his request. It was the Division's position that Mr. Wilson's request "was never denied, and thus, an appeal is inappropriate." Elaborating on this position, the Division explained to Mr. Wilson:
Our original letter to you on November 14, 2007, indicated that we were sending for materials stored off site and anticipated having all that material in office and "available by November 23, 2007". We said in that letter that after November 23, 2007, we would "contact you with further information regarding satisfaction of your request". Unfortunately, the records from off site storage were not obtained until December 5, 2007. We did not however, contact you at that time as contemplated by our letter of November 14, 2007.
Apologizing for this omission, the Division then advised Mr. Wilson that a review of the records had been completed and that his request was "granted in part and denied in part."
The Division catalogued seven cases and three tracking numbers, asserting that the latter "are exempt from disclosure under KRS 61.878(1)(h) in that the investigations are open." With reference to the seven presumably closed cases, 3 the Division offered scant information. In general, the Division agreed to release the redacted "investigative summary closing reports," CHFS Type A Citations, and a redacted complaint closing form, but refused to release the remaining records located in the case files. Those records, and the statutory bases for withholding them, were identified as follows:
. Investigative opening report[s]. KRS 61.878(1)(i) and (j); OAG 91-185
. Interview summaries. KRS 61.878(1)(i) and (j); OAG 92-103
. Medical records of victims. KRS 61.878(1)(a)
. DCBS Reports. KRS 61.878(1)(l); KRS 209.140
. Medical and social records of victim. KRS 61.878(1)(a)
. DCBS Confidential Report of Suspected Abuse/Neglect. KRS 61.878(1)(l); KRS 209.140[.]
In closing, the Division requested that Mr. Wilson "remit . . . a check in the amount of $ 4.40 (22 pages x $ 0.20 per page)" to defray copying costs.
We find the Division's response deficient for a number of reasons. The Division failed to adhere to KRS 61.872(5) in postponing Mr. Wilson's access to nonexempt responsive records and violated KRS 61.874(3) in attempting to impose unreasonable fees for copies of those records. Moreover, the Division failed to discharge its duty under KRS 61.880(1) in partially denying Mr. Wilson's request by omitting an explanation, brief or otherwise, of how the exceptions relied upon apply to the records, or portions thereof, withheld. In the interest of promoting consistency and strict compliance with the letter of the Open Records Law, we urge the Division to insure that the final response to an open records request is "issued by the official custodian or under [her] authority." 4
Before proceeding to the ultimate issue on appeal, we briefly address the apparent conflict that our review of the Division's actions presents. KRS 61.880(2) assigns to the Attorney General the role of dispute mediator in an open records appeal. In construing this provision, this office has observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
If this matter is appealed to the appropriate circuit court - which could have been done without requesting the opinion - that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
OAG 92-10, p. 5, citing OAG 91-35, p. 3; see also OAG 78-639. Because there is no provision for independent review under circumstances such as those presented here, this office must proceed with a review of the appeal "without favoritism or bias." Id . We have done so on numerous occasions in which our impartiality was called into question, including those occasions on which we were asked to conduct a KRS 61.880(2) or KRS 61.846(2) review of disputes involving this office and in which we found violations of the Open Records and Open Meetings Acts. See, e.g., 97-ORD-117 (Office of the Attorney General improperly relied on KRS 61.878(1)(a) in denying request for records relating to investigation); 99-ORD-121 (Office of the Attorney General violated KRS 61.880(1) in its denial of request for records of its Consumer Protection Division); 01-OMD-154 (Kentucky Child Support Guidelines Commission, which Attorney General was contractually obligated to legally advise, violated Open Meetings Act in failing to comply with requirements for special meetings); accord, 99-ORD-36; 05-ORD-075 (Attorney General adjudicates disputes involving Department of Public Advocacy). Here, as in past appeals, we assure the parties that "[w]e strive to maintain absolute [independence and] impartiality in discharging [the statutory] duty" with which we are charged by KRS 61.880(2) . 97-ORD-117, p. 1.
KRS 61.872(5)
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 Division notified Mr. Wilson that because some of the requested records had to be retrieved from archives, he could "expect to have the documents available by November 23, 2007." This response was deficient in that it contained only a minimal explanation of the cause for delay. Moreover, 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." 01-ORD-38, p. 7 (emphasis in original). The response was also deficient in failing to state the place, time, and earliest date certain on which the records would be available. Id.; see also, 98-ORD-3 (Kentucky State University's failure to provide specific date on which records would be available, and a detailed explanation of the cause for delay constituted a violation of KRS 61.872(5)). Because some of the records identified in Mr. Wilson's request were archived, we believe that an extension of the standard three day deadline for agency response and release of the records might have been legitimately anticipated. Nevertheless, we have confirmed through the Department for Libraries and Archives that the Division's request did not reach the Records Center until December 5 , and that the records were located, retrieved, and forwarded to the Division on the same day. 5 Given these facts, we cannot approve the Division's one month plus delay in providing Mr. Wilson with the records. Any extension of the three day deadline for disclosure must have a statutorily recognized basis, must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain. Absent an unforeseen emergency, that commitment must not yield to the press of other business.
KRS 61.874(3)
We further find that the Division violated KRS 61.874(3) insofar as it attempted to impose a twenty cents per page copying charge on Mr. Wilson. That statute provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.
In Friend v. Rees , 696 S., W.2d 325 (Ky. App. 1985), the Court of Appeals held that ten cents a copy was a reasonable fee for reproducing standard hard copy records. The Attorney General has adopted this position of the court in a long line of decisions. See, e.g., OAGs 88-74, 89-9, 91-98, 91-210, 92-79, 92-ORD-1491, 93-ORD-44, 94-ORD-43, 95-ORD-82, 96-ORD-3, 98-ORD-88, 01-ORD-50; 01-ORD-114.
The Finance and Administration Cabinet, pursuant to KRS 61.876(3), has promulgated an administrative regulation, 200 KAR 1:020, which establishes the general rules to be followed by all state administrative agencies in affording public access to their public records. 200 KAR 1:020, Section 3 (1), in relevant part, provides:
Copies of any written material shall be furnished, on request, to any person requesting them, on payment of fee of ten (10) cents a page for each record copies ; copies of photographs, maps and other nonwritten material, and records stored in computer files or libraries, shall be furnished to any person requesting them on payment of a fee equal to the actual cost to the agency of producing the copies. 6
(Emphasis added.)
Thus, the courts, the legislature, and this office have refused to countenance copying fees in excess of ten cents per page unless the agency substantiated actual costs greater than this amount, based exclusively on the cost of the medium and mechanical processing, or the agency was relying on a specific statutory enactment authorizing a higher copying charge. See, e.g., 00-ORD-110 (county clerk's KRS 64.012 fee schedule is a specific statute which overrides the residual reasonable fee provision of the Open Records Act where applicable). This view is premised on the notion that "in approving a ten cents per page copying charge the courts and this office have struck a reasonable balance between the agency's right to recover its actual costs, excluding staff costs, and the public's right of access to copies of records at a nonprohibitive charge." 01-ORD-136, p. 6. Accordingly, we find that the twenty cent per page copying charge which the Medicaid Fraud and Abuse Control Division attempted to impose on Mr. Wilson constituted a violation of KRS 61.874(3). The Division must recalculate its copying charge to conform to the requirements found in that provision as well as 200 KAR 1:020 Section 3, and the Attorney General's Regulations Governing Inspection of Public Records posted in each of his offices.
KRS 61.880(1)
Finally, and perhaps most importantly, we find that the Division did not discharge its duty under KRS 61.880(1) 7 by explaining how the exceptions upon which it relied in partially denying Mr. Wilson's request applied to the records withheld. As noted above, KRS 61.880(1) requires public agencies to respond to open records requests in writing and within three business days. KRS 61.880(1) also requires public agencies electing to withhold all or any portion of a public record to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing this provision, the Kentucky Court of appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). "A limited and perfunctory response," the court noted "[does not] even remotely compl[y] with the requirements of the Act - much less . . . amount[] to substantial compliance." Id. Although the Division included a statement of the exceptions arguably authorizing nondisclosure, it did not provide a brief explanation of how the exceptions apply to the records withheld, much less "particular and detailed information in response to [the] request." In the absence of such an explanation of how the cited exceptions apply to the records withheld, and given the fact that KRS 61.880(2)(c) assigns the burden of proof in an open records dispute to the agency resisting disclosure, we cannot generally affirm the Division's partial denial of Mr. Wilson's request.
In partially denying Mr. Wilson's request, the Division invoked KRS 61.878(1)(a), (h), (i), (j), and (l). 8 The latter exception incorporates KRS 209.140 into the Open Records Act. KRS 209.140 provides as follows:
All information obtained by the department staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
(1) Persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless order by the court;
(2) Persons within the department or cabinet with a legitimate interest or responsibility related to the case;
(3) Other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
(4) Cases where a court orders release of such information; and
(5) The alleged abused or neglected or exploited person.
Although the Division offers no proof that it was operating as the "delegated representative" of the Department for Community Based Services of the Cabinet for Health and Family Services, 9 we are reluctant to "compound[] [its] mistake" by determining that its reliance on the provision was misplaced, and, as a corollary thereof, requiring the disclosure of "materials intended to be protected from public scrutiny." Edmondson at 859. This question is remanded to the Division with instruction that it establish its status as the "delegated representative" of the Department for Community Based Services and therefore authorized to withhold information obtained as a result of an investigation made pursuant to Chapter 209.
We are equally reluctant to determine that medical and social records of victims, as well as photographs of victims, cannot be withheld notwithstanding "the undeniable deficiencies in [the Division's] response." Id . The Division cites KRS 61.878(1)(a), but offers no explanation as to how the exception applies to the records withheld. Nevertheless, the weight of existing legal authority, 10 coupled with a growing body of statutory enactments aimed at protecting health care information, 11 imports a judicial and legislative commitment to insuring the confidentiality of personal information contained in a patient or client file from which we are not prepared to depart. Accordingly, we remand this question to the Division with instructions that it satisfy its burden of proof by describing, in general terms, the nature of the records withheld and why the privacy interests implicated by disclosure of these records is superior to the public's interest in monitoring the Division's investigation through the records.
As for the Division's reliance on KRS 61.878(1)(h), (i), and (j), we find insufficient proof in the record on appeal to support its position that premature disclosure of the records withheld would harm the Division's investigation, or, alternatively, that those records enjoy protection under either of the preliminary documents exceptions. 12 The Division asserts that those records identified by tracking number are exempt per KRS 612.878(1)(h) because they are "open." The Division does not elaborate. In construing 61.878(1)(h), 13 the Attorney General has repeatedly held:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
While we may assume, for the sake of argument, that the Division qualifies as a law enforcement agency, or an agency involved in administrative adjudication, in this matter, and that the records withheld were compiled in the process of detecting and investigating statutory or regulatory violations, we cannot infer harm from premature disclosure where no harm has been expressly articulated. This office has refused to approve public agencies' invocation of KRS 61.878(1)(h) in those instances where "there [was] no description of the harm that [would] occur if inspection were allowed." 98-ORD-31, p. 7; accord 08-ORD-013; compare 06-ORD-081 (affirming Consumer Protection Division's denial of request for investigative records because those records "contain[] information regarding potential witnesses or other sources of evidence); see also 97-ORD-52; 00-ORD-81; and 06-ORD-164. Because the Division is statutorily assigned the burden of proving harm through premature disclosure of the disputed records, and none is shown, we find that the Division failed to meet its burden of proof in partially denying Mr. Wilson's request on this basis.
So, too, we find that the Division's invocation of KRS 61.878(1)(i) and (j) without supporting explanation was improper. Those exceptions authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In 97-ORD-183, this office parsed the language of KRS 61.878(1)(i) and (j), examining their underlying rationale and affirming the longstanding principle that, if adopted as the basis of final agency action, they forfeited their protected status.
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 63 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992);
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). A copy of 97-ORD-183 is attached hereto and incorporated by reference.
The Division relied on KRS 61.878(1)(i) and (j) in denying that portion of Mr. Wilson's request relating to "investigative opening reports" and "interview summaries." Without some explanation as to what the documents contain, and the role they played in the final disposition of these closed investigations, we cannot affirm the Division's denial. In view of the court's holding that "whatever final actions are taken necessarily stem from [the complaint or other initiating document]," and that such complaints or initiating documents "must be deemed incorporated as part of those final determinations," City of Louisville at 659, as well as its holding that "if . . . [the agency] adopts its notes or recommendations as part of [its] final action, clearly the preliminary characterization is lost to that extent," Id ., we find that the Division failed to adduce sufficient proof to warrant us in determining that the "investigative opening reports" and "interview summaries" enjoy continuing protection under KRS 61.878(1)(i) and (j).
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 Records Series 03293 of the Retention Schedule for the Office of the Attorney General indicates that Medicaid Fraud investigative/ litigation files should be transferred to the State Records Center two years after case closure and remain at the Records Center for eight years. A copy of the schedule is attached hereto.
2 The Division received the standard "Notification to Agency of Receipt of Open Records Appeal" provided for by 40 KAR 1:030 Section 2.
3 The Division advised Mr. Wilson that one of these cases, 05-6845, "was actually opened outside the time frame identified in [his] open records request" but "was not closed until after the November 1, 2007 [sic], date [he] referenced." The Division asked that Mr. Wilson indicate whether he wished to obtain the nonexempt portion of that closed case file and five VHS tapes of the Pulaski Circuit Court trial of the case, "subject to redaction to protect private information," contained in the file.
4 The official custodian of records for the Office of the Attorney General is Jean Ann Myatt. Her name is not affixed to the final agency response nor does it appear that the response was issued "under [her] authority."
5 See attached Records Request, PRD 160, dated "12/5/07," from the Medicaid Fraud Division to the State Records Center, and retrieved by "Dec. 05 2007."
6 We note that KRS 61.876(1) requires each public agency to adopt rules and regulations that conform to the Open Records Act, including "the fees, to the extent authorized by KRS 61.874 or other statute, charged for copies," and to display those rules and regulations in a prominent location accessible to the public. The Office of the Attorney General has implemented this requirement and posted the requisite rules and regulations, reflecting reproduction fees of ten cents per page, in each of its offices.
7 KRS 61.880(1) thus provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(Emphasis added.)
8 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
9 Compare 98-ORD-68, enclosed, (Lexington-Fayette Urban County Government provides sufficient factual information to establish that it was the Department's delegated representative and that it was engaged in jointly investigating allegations of abuse and neglect within the scope of KRS 620.050).
10 See, e.g., Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, Co. 826 S.W.2d 327 (Ky. 1992) and 04-ORD-079.
11 See, e.g., the Health Insurance Portability and Accountability Act, 45 CFR 164.512(e).
12 We acknowledge that the Division cited two prior open records decisions issued by this office in support of its position. Our review of those decisions does not substantiate the Division's reliance upon them.
13 KRS 61.878(1)(h) permits 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[.] . . . 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.