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 Cabinet for Health and Family Services - Department of Medicaid Services violated the Open Records Act in denying Paul F. Fauri's November 4, 2008, request for:
All correspondence, including but not limited to, emails, letters, memorandum, and the like in the records of the Department of Medicaid Services, or the Office of the Inspector General, Division of Audits and Detection, relating to the audited cost reports for Mountain Comprehensive Health Corporation for the FY ending 3/13/1998, 3/31/1999, and 3/31/2000. 1
For the reasons that follow, we find that the Cabinet's response was procedurally and substantively deficient.
In his letter of appeal, Mr. Fauri explained that despite his repeated inquiries, the Cabinet did not respond to his request until November 24, 2008. On that date, Neville Wise, Director of the Division of Administration & Financial Management, denied Mr. Fauri's request as unreasonably burdensome. Mr. Wise cited 99-ORD-14 and 00-ORD-79, as well as earlier decisions of this office, characterizing Mr. Fauri's letter as "a broad discovery request" and indicating that "the Department for Medicaid Services and the Office of Inspector General would be required to review the files, personal and non-personal, of current and former employees dating back the last ten years for the records . . . ." Mr. Fauri questioned the Cabinet's position, noting the procedural irregularities and asserting that his request "relates to specific audits of a specific provider over a specific amount of time . . .[, and] would not require the Cabinet to examine every record . . . ."
In supplemental correspondence directed to this office following commencement of Mr. Fauri's appeal, the Cabinet advanced two new arguments in support of its position. With reference to its invocation of KRS 61.872(6), the Cabinet asserted that, Mr. Fauri's belief notwithstanding, "the records could/would, in some cases, span an almost eleven year period in history." It was the Cabinet's position that because "Mr. Fauri has asked for all documents, electronic and otherwise, maintained by two different agencies within the Cabinet that contain the name of or reference a particular facility," his request "places an unreasonable burden in producing public records. "
Alternatively, the Cabinet argued that the requested records enjoy protection under KRS 61.878(1)(h) because the Office of Inspector General is "auditing/investigating the records referenced by Mr. Fauri." The Cabinet observed:
The Attorney General has held that this exception protects those records that are "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process." The [requested records] squarely fit into this exemption as the OIG has an ongoing investigation for which records were created and compiled by staff of both DMS and OIG, who is under a Memorandum of Agreement to perform such audits/ investigations on DMS' behalf.
The Cabinet maintained that "[r]elease of any records compiled during this investigation would harm the Cabinet by releasing information to be used in a prospective action and/or by identifying informants not otherwise known."
Finally, the Cabinet argued that records compiled in the course of the investigation by the OIG, consisting of emails, letters, and memoranda, "are preliminary memoranda in which opinions of said witnesses and Cabinet employees are expressed" and are not subject to inspection "[u]nless and until the Cabinet takes final agency action upon said records." In support, the Cabinet relied on KRS 61.878(1)(j) and Attorney General's opinions from 1984 to 1986. We find none of these arguments persuasive.
Procedurally, the Cabinet's response was deficient insofar as it was not generated until November 24, 2008. This unexplained delay of some twenty days violated KRS 61.880(1), requiring written notification of the agency's decision relative to the request within three business days of receipt. The Cabinet acknowledges this violation, and we will not belabor the point.
Substantively, we find insufficient evidence in the record on appeal to support a claim of unreasonable burden under KRS 61.872(6). That statute 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.
On appeal, Mr. Fauri refuted the Cabinet's argument that his request implicated ten years of records in personal and nonpersonal folders of current and former employees, noting that the records identified in his request related "to specific audits of a specific provider over a specific amount of time," and that he was "not provided the opportunity to inspect records as is an option under KRS 61.872(3)." Further, Mr. Fauri observed:
The agency maintains that the request was for records that, "contain the name of or reference a particular facility." This is not the case. The request asks for documents, "relating to the audited cost reports for Mountain Comprehensive Health Corporation" for three specific fiscal years. Nothing in the request demands that the Department search or produce each and every document containing the name of or reference the provider [.]
Given the limited scope of his request, and in light of the Kentucky Supreme Court's recent opinion in Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), holding that "there is no statutory particularization requirement in KRS 61.872(2) ," 2 id. at 664, and that "the obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear evidence of an unreasonable burden, " id. at 665, we agree with Mr. Fauri.
In a recent open records decision, this office observed:
Department of Corrections v. Chestnut, above, forever changed the landscape of open records analysis as it relates to KRS 61.872(2) and KRS 61.872(6). Before Chestnut, this office had recognized an agency's general right [footnote omitted] to deny a request that was not couched in reasonably particular terms. After Chestnut, the Court put this office, and all public agencies governed by the Act, on notice that no such requirement can be read into law. In Chestnut, the requester sought access to a "copy of [his] inmate file excluding any documents that would be considered confidential [sic]." The Court determined that Chestnut's request satisfied the standard found at KRS 61.872(2), concluding that the request "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Id. In so holding, the Court noted that he was required to do nothing more than describe the record sought, and "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . he had never seen." Id. The Court expressly declared that:
Chestnut at 661.
The Court went on to reject the Department of Corrections' argument that satisfaction of the inmate's request would impose an unreasonable burden on the agency within the meaning of KRS 61.872(6). [Footnote omitted.] The Court began by observing that "a public agency refusing to comply with an open records request on this unreasonable burden basis faces a high proof threshold since the agency must show the existence of the unreasonable burden 'by clear and convincing evidence.'" Noting that the affidavits submitted by DOC were "not particularly convincing because they [were] vague on the subject of how much time it takes to comply . . .," the Court nevertheless stated that it was "satisfied that the task of determining what materials are properly subject to an . . . open records request is tedious and time-consuming work," but that it was not persuaded that the request "automatically constitute[d] an unreasonable burden. " Id. at 664. Continuing, the Court determined that the "winnowing process required of the DOC," to separate excepted materials and make nonexcepted materials available did not "rise to the level of an unreasonable burden under KRS 61.872(6)," inasmuch as this is an existing statutory obligation under KRS 61.878(4). 3 Id. at 665.
Additionally, the Court declared that "[a] record's length, standing alone, is an insufficient reason to exempt it from open records disclosure, " and therefore does not provide a basis for refusing "to comply with an otherwise valid open records request." Id. at 666. Nor, the Court concluded, did the agency's "method of organizing its files . . . ." Id. In sum, the Court held that an agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id. citing KRS 61.8715 (stating that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes").
08-ORD-231, pp. 2-4; accord 09-ORD-002.
Here, as in Chestnut, Mr. Fauri's request satisfied the standard found at KRS 61.872(2) insofar as it "was adequate for a reasonable person to ascertain [its] nature and scope." While the standard for onsite inspection is less rigorous than the standard for inspection by receipt of copies through the mail, the former requiring only a description and the latter requiring a precise description, 4 Mr. Fauri did not have the option of initially requesting access by means of onsite inspection, 5 nor was he ever afforded an opportunity to do so. Moreover, the Cabinet has, by its own admission, compiled records responsive to Mr. Fauri's request in the course of its investigation of Mountain Comprehensive Health Corporation. It therefore cannot persuasively argue that his description was inadequate under the Chestnut standard.
Nor can the Cabinet persuasively argue that Mr. Fauri's request is unreasonably burdensome. Direct support for this proposition is found in the fact that, as noted above, records responsive to his request have already been compiled in the course of its investigation of Mountain Comprehensive. Not only did the Cabinet read Mr. Fauri's request more broadly than he intended it to be read, asserting that it implicated eleven years of documentation in personal and nonpersonal files of past and present employees of the OIG and Medicaid Services, to substantiate its invocation of KRS 61.872(6), but it offered no evidence, clear and convincing or otherwise, to support its claim. We therefore find that the Cabinet violated the Open Records Act in denying Mr. Fauri's November 4 request on the basis of KRS 61.872(6) as construed in Department of Corrections v. Chestnut, above.
We find equally unpersuasive the Cabinet's argument that KRS 61.878(1)(h) shields the requested 1998, 1999, and 2000 audited cost reports, and records relating thereto, from inspection. That exception authorizes 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[.]
In 01-ORD-67, this office rejected the Cabinet for Health and Family Services' reliance on KRS 61.878(1)(h) to support its denial of a request for records of Medicaid payments for work performed by Dr. Steve Henry that were under examination by a federal grand jury, focusing on its failure to establish "that the disputed documents were compiled in the process of detecting or investigating statutory or regulatory violations." 01-ORD-67, p. 7. "Instead," the Attorney General observed, "the record discloses that the documents were generated in the normal course of business, and therefore independently of any investigative process," id., much like the radio transmissions at issue in OAG 89-11 from which the Cabinet quotes in the instant appeal. In OAG 89-11, this office construed "records compiled in the process of detecting or investigating statutory or regulatory violations" to mean "those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process" and not records "which were 'segregated' in connection with an investigation" but "not made uniquely in a specific detection and investigation process." OAG 89-11, p. 3. Although they have been "segregated in connection with an investigation," the records to which Mr. Fauri requests access were generated in the ordinary course of business. Contrary to the position taken by the Cabinet, they were not made uniquely in a specific detection and investigation process.
"Even if there is reasonable disagreement as to whether the [disputed records were] compiled in the process of detecting and investigating statutory violations," here, as in OAG 89-11, "there must still be a showing that the agency would be harmed by 'premature release . . . .'" Id. The Cabinet does little more than recite the language of KRS 61.878(1)(h) in describing the harm that might occur if inspection is allowed, suggesting no correlation between the investigation that is currently underway and records generated in the ordinary course of business in 1998, 1999, and 2000. "Only a bare claim is made in such regard," id., and the Cabinet's KRS 61.878(1)(h) argument fails.
So too, the Cabinet's KRS 61.878(1)(i) and (j) arguments fail. Those exceptions authorize nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 02-ORD-097, this office analyzed the application of KRS 61.878(1)(i) and (j) to draft audits and final audits, concluding that only the former qualified for protection from public inspection. A copy of 02-ORD-097 is attached hereto and incorporated by reference. At page 8 of that decision, we observed:
The audit report is not a draft that is subject to revision or change within the meaning of KRS 61.878(1)(i), but is instead a final document to which the public must be afforded access
. . .
We apply the same reasoning to "all agreed-upon actions" and correspondence relating thereto. Such correspondence is not in the nature of predecisional expression of opinion or formulation of policy that qualifies for exclusion under KRS 61.878(1)(j) . . . . No "chilling effect" will be cast upon the [agency's] ability to freely and frankly exchange ideas and opinions by disclosure of these records.
Id. This is particularly true in light of the fact that some eight to ten years have elapsed since these audits became final. It is to these audits, and not investigative records generated in the eight to ten years since, that Mr. Fauri seeks access. For this reason, we find the Cabinet's third argument legally untenable.
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 Mr. Fauri submitted his request on the preprinted request form developed by the Finance and Administration Cabinet, indicating that he wished to "request copies of the . . . documents." The form does not afford the requester the option of submitting a request to inspect.
2 KRS 61.872(2) provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
3 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.
4 See KRS 61.872(3)(a) and (b), respectively, and Chestnut at p. 661.
5 See note 1, above, relative to the absence of an inspection option on the preprinted form developed by the Finance and Administration Cabinet.