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, Office of Inspector General, violated the Open Records Act in partially denying Patsy R. Decker's August 6, 2008, request for "a copy of the investigation report resulting from complaint KY 00011312 [filed by Ms. Decker's client, Linda Crowe and] . . . handled by Virginia Estes . . . [into the] McCreary Health and Rehabilitation Center in Pine Knot, Kentucky." For the reasons that follow, we find that the OIG's original response to Ms. Decker's request constituted both a procedural and substantive violation of the Open Records Act, but that these violations were subsequently ameliorated and a proper basis for partially denying access to the requested report was ultimately articulated.
On August 13, the OIG notified Ms. Decker that the records identified in her request had been compiled and would be mailed to her upon receipt of a check in the amount of "$ .52 ($ .10 for copies and $ .42 for postage)." The OIG explained that "upon receipt of payment, the information will be reviewed to comply with the confidentiality requirements of KRS 61.870, et. seq. . . . ." On August 19, the OIG mailed Ms. Decker the "information . . . requested pertaining to McCreary Health and Rehabilitation Center," but indicated that "confidential information had been redacted in compliance with KRS 61.878(1)(a) . . . ." 1 Having learned that the document released to her did not represent Ms. Estes' complete investigation, Ms. Decker contacted the OIG by telephone and was advised that "as of about two months ago" 2 she could no longer obtain copies of investigative reports in nursing home discharge investigations, "but that she could seek copies of the actual ACTS Complaint Investigation reports/narratives . . . by filing a Freedom of Information Act request with the Centers for Medicaid and Medicare Services." 3
In supplemental correspondence directed to this office following commencement of Ms. Decker's appeal, the OIG explained, for the first time, that it:
performs certification tasks at health care facilities as the "State Agency" under contract with CMS and in accordance with the Social Security Act. The requested investigation was conducted pursuant to that contract and to ascertain compliance with various federal laws and regulations. The documents generated as a result of the investigation were then inputted into the Automated Complaint Tracking System (hereinafter "ACTS") of records. 4
The OIG invoked KRS 61.878(1)(k) and various provisions of federal law including 45 C.F.R. Part 2 which has "been amended to control when state agencies that perform survey, certification, or enforcement activities for the Department may provide documents in proceedings where the United States is not a party." It was the OIG's position that it "lacks authority to release any federal or joint federal/ state records as such records are under the control of the Department of Health and Human Services, and federal law and privileges affect their release."
On December 16, 2008, the OIG submitted additional documentation supporting its position. In a letter directed to the OIG, Melinda V. McKinnon, Assistant Regional Counsel for the Department for Health and Human Services, referenced 45 C.F.R. Part 2, 73 FR 53148, and 45 C.F.R. § 2.2(3), which "control when state agency employees may provide information about federal survey, certification, or enforcement activities in proceedings where the United States is not a party" and concluded that requests for records "should be forwarded to the Centers for Medicare and Medicaid Services, Regional Office for disposition pursuant to the rules governing public disclosure established in 45 C.F.R. 5 [inasmuch as t]he Cabinet does not have authority to release federal records, or joint federal/ state records other than through the FOIA process." Although Ms. McKinnon's letter did not directly relate to the records at issue in this appeal, it did relate to a similar matter involving another of Ms. Decker's clients.
These statutory references and accompanying explanations should have appeared in the OIG's original response. Although the language of the cited regulations supports its partial denial of Ms. Decker's request, we find that the OIG violated KRS 61.880(1) in failing to include the requisite citation to the statutory exception authorizing the partial nondisclosure and explanation of the exception's application to the records withheld.
KRS 61.878(1)(k) requires public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " See, e.g., 01-ORD-25 (affirming nondisclosure of information protected by the Driver's Privacy Protection Act, 18 U.S.C. § 2721-25); 07-ORD-037 (affirming nondisclosure of record protected by Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g). Ms. McKinnon cites 73 FR 53148, 53149-50 for the proposition that 45 C.F.R. Part 2 "appl[ies] to requests for testimony or documents from an employee of a contractor, subcontractor, or state agency only to the extent the information was acquired in the course of performing survey, certification, or enforcement functions under Title XVIII of the Social Security Act or Section 353 of the Public Health Service Act and regardless of whether documents are also relevant to the state's activities." Ms. McKinnon notes that these regulations were amended in late 2008. This, presumably, accounts for the OIG's recent change in policy.
The OIG did not provide this office with pertinent portions of its contract with the Centers for Medicaid and Medicare Services. 5 Nevertheless, we trust that a contractual relationship exists, and that the OIG is accordingly bound by the "Policy on presentation of testimony and production of documents" found at 45 C.F.R. § 2.3. That regulation provides:
No employee or former employee of the DHHS may provide testimony or produce documents in any proceedings to which this part applies concerning information acquired in the course of performing official duties or because of the person's official relationship with the Department unless authorized by the Agency head pursuant to this part based on a determination by the Agency head, after consultation with the Office of the General Counsel, that compliance with the request would promote the objectives of the Department.
Although it was dilatory in failing to invoke the applicable federal regulations, and state exemption incorporating those regulations into the Open Records Act, the OIG properly relied on 45 C.F.R. § 2.3 in partially denying Ms. Decker's request for the investigative report generated under its contract with the Centers for Medicare and Medicaid Services into the complaint of improper discharge leveled against McCreary Health and Rehabilitation Center. In the interest of minimizing the number of appeals from legally defensible denials of records requests, we urge the OIG to invoke all applicable exemptions to public inspection in its original response to an open records request.
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.
Patsy R. DeckerAnne E. Burnham
Footnotes
Footnotes
1 Ms. Decker provided this office with the one page document released to her. There are no visible redactions on the document.
2 July 2008.
3 Ms. Decker provided this office with a copy of the September 30 Freedom of Information request for the investigative reports which she submitted to the Center for Medicare Services in Atlanta, Georgia. She did not indicate whether her request had been honored by the federal agency.
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4 ACTS is described in the Federal Register, Volume 71, Number 99, published on May 23, 2006, as:
[A] Windows-based program designed to track and process complaints and incidents reported against health care facilities regulated by CMS and the state agencies. . . . ACTS maintains Federal complaint information, as well as state licensure complaint information. . . . Under Section 1864(a) of the Social Security Act, the Secretary uses the help of State health agencies, or other appropriate agencies, when determining whether health care entities meet Federal Medicare standards.
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5 45 C.F.R. Subtitle A § 5b.12 states that such contracts "must contain a provision requiring the contractor to comply with the Act and this part."
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