Request By:
Melissa A. Wilson
Neville Wise
Jon R. Klein
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in the disposition of Melissa A. Wilson's request for specified information relating to the Department for Medicaid Services' Policy Statement regarding its decision to continue paying for routine neonatal circumcisions with Medicaid funds. In failing to either comply with KRS 61.880(1) or provide a detailed explanation of the cause for delay in producing any existing records containing such information per KRS 61.872(5), the CHFS committed a procedural violation of the Act; however, the CHFS is not required to create a record or compile a list in order to satisfy a request. Because the CHFS cannot produce nonexistent records for inspection or copying, nor must it "prove a negative" to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), this office finds no error in the agency's ultimate disposition of Ms. Wilson's request.
By letter dated July 21, 2009, Ms. Wilson requested the following information relating to the subject "Medicaid Department Policy Statement":
2. The names and titles of the additional 'leading experts in pertinent fields' with whom the Medical Director consulted in preparing this document, other than the persons referenced in request # 1, above;
3. The date(s) on which the referenced consultations by the Department's Medical Director with the persons described in #'s 1 and 2 took place; and
4. Please provide an opportunity for inspection and copying [of] any infectious disease medical references consulted in preparation of said Medicaid Department Policy Statement other than those references specifically identified in said Police Statement.
In a timely, but otherwise deficient response, Neville Wise, Director, DMS, Division of Administration and Financial Management, acknowledged receipt of Ms. Wilson's request but indicated that the records being sought were "in active use, storage, or are otherwise unavailable at this time." The DMS anticipated that responsive records that were "not otherwise exempt from disclosure" would be available for Ms. Wilson "on or before August 16, 2009," but indicated that it would "promptly notify" her if the records were available sooner. In closing, the DMS advised Ms. Wilson that "[t]he law requires that we protect the privacy and confidentiality of other individuals who may be mentioned in our records. Personal information about others may be redacted from the documents you requested." 1
By letter dated August 12, 2009, Mr. Wise advised Ms. Wilson that the information she requested was "now complete and available." 2 Attached to Mr. Wise's letter was a copy of typewritten response from J. Thomas Badgett, M.D., the author of the Statement, which he prepared "to document [his] personal re-evaluation of the optional Medicaid benefit providing for neonatal circumcision. " Dr. Badgett indicated that "[u]pon obtaining their permission," he would identify the "two pediatric experts in the respective fields of Pediatric Urology and Pediatric Infectious Diseases." According to Dr. Badgett, "[p]ediatric colleagues were engaged in informal discussion of the issues"; otherwise, no additional experts were consulted. " Dr. Badgett further advised that "[t]he dates on which these referenced conversations [sic] is known to me only in reference to the date of August 22, 2008, which is the date of the letter in question." He could "only state that the conversation (s) took place within days prior to that date." In response to Ms. Wilson's final request for an opportunity to inspect and copy "any infectious disease medical references consulted" in preparing the Statement, Dr. Badgett indicated that said references "are clearly identified in the letter" and explained that he does not own either of the texts identified; rather, he accessed the textbooks online "via the Kornhauser Medical Library at the School of Medicine, University of Louisville at http://louisville.edu.echo.louisville.edu/library/kornhauser/ ."
By letter dated September 29, 2009, Ms. Wilson initiated this appeal, reiterating her questions regarding the specific details of the Statement and challenging the failure of the DMS to provide any explanation for its assertion that any responsive records were in active use or cite any exception to the Open Records Act to justify its position. Ms. Wilson also noted that "[m]ore than thirty days have passed with no supplemental reply from the Custodian of Records." 3 In her view, this period "should have provided ample time to complete" a response to her written request.
Upon receiving notification of Ms. Wilson's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS, initially reiterating that any "discussions that occurred regarding the Policy Statement in question were informal. At least some were telephonic. Additionally, the medical director does not remember the exact dates of the conversations, and no documents other than the Policy Statement were created regarding the conversations. " As Mr. Klein further explained:
The Cabinet has already disclosed all of the documents in its possession that are responsive to this request. There were no documents created that list the "full names of the individuals identified as 'chiefs of Pediatric Urology and Pediatric Infectious Diseases at the University of Louisville School of Medicine'" referenced in the Policy Statement. Likewise, there were no documents created regarding the additional "'leading experts in pertinent fields'" with whom the Medical Director consulted in preparing this document, other than the persons referenced in request # 1. The [M]edical [D]irector had informal conversations with persons who do not wish to be identified. Finally, since all responsive documents in the Cabinet's possession have been disclosed there is no need for an opportunity for inspection and copying [of] any infectious disease medical references.
. . .
The bottom line here is that the [M]edical [D]irector created a Policy Statement regarding his 'personal re-evaluation of the optional Medicaid benefit providing for neonatal circumcision. ' The only document created in that process was the final Policy Statement. The persons with whom the [M]edical [D]irector discussed his views do not wish to be named, and the Cabinet is not required to compile information or create a document in order to satisfy a request under the Open Records Act. 08-ORD-047, fn 9. All documents in the Cabinet's possession that are responsive to Ms. Wilson's request have already been produced, and there no other records which may reasonably yield the remaining information being sought. 4
Because the CHFS is not statutorily required to create a record or compile a list in order to satisfy a request nor can the agency produce nonexistent records for inspection or copying, this office has no basis upon which to find a substantive violation of the Act; however, the CHFS committed a procedural violation of the Act in failing to either comply with KRS 61.880(1) by affirmatively indicating that no such records exist or cite KRS 61.872(5) and provide a detailed explanation of the cause for delay in producing any existing records.
As a public agency, the Cabinet must adhere to both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines which a public agency must comply with in responding to requests made under the Act. In relevant part, KRS 61.880(1) provides that each public agency must determine within three business days of receiving a written request whether it will comply and "shall notify in writing the person making the request, within the three (3) day period, of its decision." A 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 ." (Emphasis added).
In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). As the Attorney General, has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. The only exception to the requirements of KRS 61.880(1) is found at KRS 61.872(5), pursuant to which:
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.
(Emphasis added.) 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 61.8782(5). Failure to comply with these provisions constitutes a violation of the Open Records Act.
99-ORD-13, p. 5, 6.
Noticeably absent from the initial response by the DMS is any reference to KRS 61.872(5); also lacking is the required explanation of the cause for delay. On appeal, the CHFS does not address either deficiency. In sum, the initial response issued on behalf of the DMS lacked the specificity envisioned by KRS 61.880(1) and failed to comply with KRS 61.872(5). A public agency's "inability to produce records due to their nonexistence is tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9. In other words, if "a record of which inspection is sought does not exist, the agency should specifically so indicate." OAG 90-26, p. 4. See 09-ORD-145, pp. 4-8. It remains unclear how nonexistent records were "in active use, in storage or not otherwise available" or even which of these criteria was the basis for invoking KRS 61.872(5). See 09-ORD-007 (extension of the three day deadline by the CHFS may have been warranted in this instance but disposition of the request "'fell far short of the procedural mark'")(citation omitted). To this extent, the CHFS violated the Act from a procedural standpoint. 5 However, the CHFS is not statutorily required to create a record or compile a list in order to satisfy Ms. Wilson's request and, to its credit, did so anyway.
Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. On this basis, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375. In addressing this issue, the Attorney General has consistently recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. See also OAG 90-19; OAG 89-81. Of particular relevance here, this office "has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. 02-ORD-165, p. 4. See, e.g., OAG 76-375; OAG 90-101. At page 2 of 93-ORD-50, the Attorney General observed confirmed that "the Kentucky Open Records Act was not intended to provide a requester with particular 'information,' or to require public agencies to compile information, to conform to the parameters of a given request." See 02-ORD-165.
Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." 02-ORD-165. p. 5, OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. In other words, the CHFS is not statutorily required to honor a request which is properly characterized as a request for information such as Ms. Wilson's request for specified names, titles, and certain dates. However, the analysis does not end there.
"While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). In keeping with this position, the Attorney General has noted that when a requester is unable to identify the records sought for inspection with adequate specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. In this case, the CHFS has confirmed that all potentially responsive records have been provided.
As the Attorney General has consistently recognized, a public agency cannot afford a requester access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. To clarify, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act by affirmatively indicating that no such records exist as the CHFS ultimately asserted here. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98. Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
Although the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, pertaining to management of public records, 6 the Act only regulates access to records that are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Our decisions in open records disputes are therefore generally limited to two questions: Whether the public agency prepared, owned, used, possessed, or retained the requested record, and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that are already in existence, and that are in the possession or control of the public agency to which the request is directed. See 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University). When, as in this case, a public agency denies that any responsive documents exist within its custody or control beyond those already provided, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. This office is "not empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1.
In responding to Ms. Wilson's appeal, the CHFS affirmatively indicated that no additional responsive documents and explained why. The CHFS now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Wilson's claim that additional records exist. Addressing this dilemma, in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." 7 In a series of decisions issued since Bowling , this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive records in the absence of a prima facie showing that documents being sought did, in fact, exist in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 07-ORD-190; 08-ORD-189. Because the instant appeal presents no reason to depart from this approach, the same result follows here. 8
In our view, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In the absence of the requisite prima facie showing, the agency's response must be affirmed in accordance with Bowling and prior decisions of this office. To hold otherwise would result in the CHFS "essentially hav[ing] to prove a negative" to refute a claim that additional records exist. 07-ORD-190, p. 7. As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3. 9
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 By failing to cite the applicable statutory exception(s), and/or confirm or deny the existence of responsive records, the CHFS violated KRS 61.880(1). In construing this provision, the Kentucky Court of Appeals observed that "[t]he language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.
2 To its credit, the CHFS replied sooner than anticipated and produced some information at no charge; however, the agency was unable to provide all of the information requested and the response was therefore not "complete."
3 Although Ms. Wilson indicated that she mailed a "follow up letter" on August 19, 2009, asking for a "supplemental response," no such letter is attached to her appeal; however, the CHFS violated the Act from a procedural standpoint regardless of whether it received the letter and our inability to review it consequently does not alter the relevant analysis.
4 Arguing in the alternative, Mr. Klein asserted that even if documents had been created as a result of the "informal conversations" that occurred, those records would have been preliminary within the meaning of KRS 61.878(1)(i) and/or (j); however, Mr. Klein reiterated that "no such notes were created" nor were "such recommendations and memoranda generated" and the CHFS "cannot produce that which it does not possess." Because the CHFS did not generate any such records, the Attorney General does not reach the question of whether same could have properly been withheld on the basis of KRS 61.878(1)(i) and/or (j).
5 In prior decisions, and most recently in April of this year (09-ORD-059), the Attorney General has repeatedly admonished the CHFS that "its practice of issuing what appear to be boilerplate responses to records requests in order to secure additional time for final disposition of those requests beyond the statutorily imposed three working day deadline is contrary to both the spirit and the letter of the Open Records Act. " 07-ORD-123, p. 5 (original emphasis). See 07-ORD-030 (acknowledging that "volume of requests directed to CHFS and the nature of the records implicated, in conjunction with the staffing issues CHFS apparently faces, undoubtedly present CHFS with a unique dilemma," but observing in reference to "inherent deficiencies of the standard form letter utilized" by CHFS that the "practice currently employed by CHFS violates both KRS 61.880(1) and KRS 61.872(5)"); 08-ORD-014 (noting that 07-ORD-030 "mirrors earlier decisions of this office dating back to at least 1995"); see also, 05-ORD-134; 96-ORD-168; 95-ORD-115. As in 07-ORD-123, at "the risk of redundancy," this office reiterates that "[w]hile the Attorney General cannot compel the [CHFS] to implement a new policy, or otherwise impose penalties for violations of KRS 61.870 to 61.884, the courts are empowered to do so, and, in the face of a pattern of noncompliance, may well elect to do so." Id., p. 5.
6 See KRS 61.8715.
7 Black's Law Dictionary , 1071 (5th ed. 1979), defines prima facie as "a fact presumed to be true unless disproved by some evidence to the contrary."
8 Ms. Wilson's belief or assumption, however reasonable, does not constitute such a showing.
9 In other words, to the extent Ms. Wilson questions the volume, content or value of the records produced, such an issue is not justiciable in this forum; rather, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are not generally capable of resolution under the Act." 04-ORD-216, p. 3; 04-ORD-032.