Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in the disposition of Ellen A. Yonts' September 20, 2012, request, directed to the Department for Medicaid Services, for "e-mails, letters, memorandums, records, notes, documentation of meetings, correspondence, etc. related to any investigation or review your department conducted in 2010, 2011 and 2012" on Dr. David W. Suetholz, and specifically those related to any conducted by (then) Director Angie Lawrence. (Original emphasis.) Upon receipt of the October 2, 2012, response from the CHFS Office of Inspector General, advising that "[c]onfidential information may have been redacted to be in compliance with KRS 61.878(1)(a)," Ms. Yonts made two separate but nearly identical requests by letters dated October 9, 2012, directed to the OIG Division of Audits and Investigations and the Drug Enforcement and Professional Practices Branch, respectively. Ms. Yonts asked specifically for all such records pertaining to any review or investigation of Dr. Suetholz conducted by Manager Kevin Payne or Pharmacist Consultant Paula York in the former instance, and Mr. Payne, Ms. York, or (then) Director Lawrence, in the latter. By letter dated October 17, 2012, the OIG advised Ms. Yonts that it was enclosing "all the information we have on this case in its entirety" at no charge to her, again quoting the language of KRS 61.878(1)(a). 1
By letter dated October 22, 2012, Ms. Yonts initiated this appeal, emphasizing that she "know[s] other information exists relating to the investigation of Dr. Suetholz," and specifically relating to former Director Lawrence's review of his prescribing practices that would be dated on or about April 2011. Ms. Yonts also questioned why none of the responses by CHFS mentioned the cost associated with having the Commonwealth Office of Technology review e-mails given that she requested e-mails relating to Dr. Suetholz. Noting that she was provided with two letters "as well as an agreed order of indefinite restriction," Ms. Yonts found it "unfathomable" that said investigation of at least one and a half years only generated two letters and an agreed order. Ms. Yonts enclosed a copy of a May 24, 2011, letter from Kentucky Board of Medical Licensure Assistant Executive Director Michael S. Rodman that was unsigned, as well as a letter dated April 26, 2011, that was not provided as part of the agency's response, again disputing the assertion that she had received everything.
Because CHFS ultimately confirmed that all existing responsive records have been provided in responding to Ms. Yonts' appeal, following a reasonable search, and provided a plausible explanation for the nonexistence of additional records in writing, the Attorney General finds no error in the agency's final disposition of her written request(s) in the absence of any irrefutable proof that additional records were created or exist. A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that additional records exist. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); see also 07-ORD-188; 12-ORD-087; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence" ); 12-ORD-195. 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, nor is this office "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. Moreover, when some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4.
Upon receiving notification of Ms. Yonts' appeal from this office, Timothy J. Salansky, Assistant Counsel, responded on behalf of CHFS, initially advising that the OIG, which conducts investigations for the agency, produced two letters in response to Ms. Yonts' first request. Mr. Salansky described the records produced as follows:
The first is a letter dated May 24, 2011, from [Mr.] Rodman, Assistant Medical Director of the [KBML], to Kevin Payne, Manager of OIG's Drug Enforcement & Professional Practices Branch, requesting that OIG assist KBML with its current investigation of Dr. Suetholz by reviewing a KASPER (Kentucky All Schedule Prescription Electronic Reporting) search on Dr. Suetholz from January 1, 2010 to present. The second is a letter dated August 25, 2011, from [Ms.] York, OIG's Pharmacist Consultant, to Mr. Rodman addressing concerns that she raised from her review of the KASPER records on Dr. Suetholz. The names of Dr. Suetholz's patients whose records Ms. York recommended KBML review were redacted in compliance with HIPAA and KRS 61.878(1)(a). In response to the second request, OIG produced, in addition to the above-mentioned letters, a copy of the KBML Agreed Order of Indefinite Restriction dated June 5, 2012.
Having conferred with DMS' Division of Program Integrity, as well as the OIG, Mr. Salansky further explained that in April 2011 the Division conducted a "routine review of Dr. Suetholz for a Provider Enrollment license update." During this review, Mr. Salansky continued, "several data bases were checked, [KBML] orders were reviewed, and KASPER was reviewed." Ms. Lawrence, then Director of DMS' Division of Program Integrity, wrote a letter to Mr. Rodman on April 26, 2011, advising KBML that the KASPER review had revealed "possible over prescribing as well as inappropriate prescribing practices." The April 2011 letter was attached to Ms. Yonts' appeal, Mr. Salansky noted, and was apparently obtained from KBML. 2
In response to Ms. Yonts' claim that additional records exist, Mr. Salansky explained that he asked the Division of Program Integrity to conduct another search, focusing specifically on records, e-mails, correspondence, etc. relating to the April 2011 Provider Enrollment review of Dr. Suetholz. The only document located, he advised, "is an internal tracking sheet" and is being withheld "pursuant to KRS 61.878(1)(j)." Mr. Salansky advised that Angela L. Conway of the Division of Program Integrity completed the sheet. On the sheet Ms. Conway "opined that the review of KASPER revealed possible prescribing issues which she recommended be referred to KBML." Attached to the tracking sheet, Mr. Salansky observed, "are Secretary of State business records (available online) and documents from the KBML, including a copy of Dr. Suetholz's 2011 registration card issued by KBML and copies of KBML records of disciplinary proceedings relating to Dr. Suetholz from 2002 through 2005." CHFS did not produce these records "as they can be obtained from KBML." 3
In addressing Ms. Yonts' question as to why there was no mention of the cost associated with having COT conduct a search of e-mails, Mr. Salansky explained that CHFS has, in the past, contracted to have COT conduct "state government wide" e-mail searches; however, CHFS is capable of searching e-mails of its own personnel without the assistance of COT. Mr. Salansky explained that Ms. Lawrence retired from her position as Director of the Division of Program Integrity effective July 31, 2011, and her account was not preserved. A search of the e-mail accounts of CHFS employees who would have been involved in any review or investigation of Dr. Suetholz located one responsive e-mail thread, a copy of which Mr. Salansky attached to his October 31, 2012, response. Accordingly, Mr. Salansky was convinced that DMS had produced all existing responsive documents. He noted that KBML, rather than CHFS, investigated the practices of Dr. Suetholz. DMS conducted a "routine records review" and has not taken any adverse action against Dr. Suetholz.
Ms. Yonts later acknowledged that KBML conducted an investigation of Dr. Suetholz, which resulted from the "'routine" review performed for a Provider Enrollment license update. She reiterated that CHFS did not explain "what specifically prompted the investigation or review of Dr. Suetholz" and maintained that "some sort of document initiating the review" must exist. Mr. Salansky then acknowledged that he neglected to include with his initial response a copy of a January 6, 2011, letter to Dr. Suetholz from KBML. He advised that said letter was received by the Provider Enrollment Branch of the DMS' Division of Program Integrity. Jennifer Moore, Provider Enrollment Branch Manager reviewed the letter and "would have routinely consulted the KBML website to see if there had been any previous action taken by [KBML] against Dr. Suetholz." Because a review confirmed that previous action had been taken, Ms. Moore forwarded the letter to Ms. Conway and requested that she look into the matter, as the January 6 letter confirms. This letter was the only "initiating document," according to Mr. Salansky, a copy of which he provided. He reiterated that CHFS did not locate any other e-mails pertaining to Dr. Suetholz nor has any correspondence between Ms. Conway and Ms. Lawrence been found.
As the Attorney General has consistently recognized, a public agency cannot produce nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6; 06-ORD-040. Rather, the right of inspection 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 in affirmatively indicating that no such records exist, following a reasonable search, as CHFS has maintained here. This office has expressly so held on many occasions. 04-ORD-205, p. 4; 99-ORD-98; 11-ORD-081. 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, 4 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 (s), and, if so, whether the record is open to public inspection. Simply put, Kentucky's Open Records Act applies to records that currently exist and that are in the possession or control of the public agency to which the request is directed; however, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records at a minimum. See 00-ORD-120; 04-ORD-075. When, as in this case, a public agency denies that additional records exist, and the record on appeal supports rather than refutes that contention, further inquiry is not warranted absent objective proof to the contrary. 05-ORD-065, pp. 8-9. Under the circumstances 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.
CHFS now finds itself in the position of having to "prove a negative" in order to conclusively refute Ms. Yonts' claim that additional responsive records exist. Bowling, above, at 341. The Kentucky Supreme Court has recognized that "allowing public agencies to avoid judicial review by denying a record's existence . . . remove[s] accountability from the open records process," but further acknowledged that public agencies may be unreasonably burdened with "the unfettered possibility of fishing expeditions for hoped-for but nonexistent records . . . " if required to "prove a negative" in order to refute a claim that certain records exist, "presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id. at 341. Addressing this dilemma, in Bowling the Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim], he or she must make a prima facie showing that such records do exist." Id. 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 records being sought existed in the possession of the agency. See, e.g., 06-ORD-042; 07-ORD-188; 08-ORD-189; 12-ORD-012.
However, this office recently noted that "a record's existence can be presumed" at the administrative level "where statutory authority for its existence has been cited or can be located." Ms. Yonts has not cited any objective proof or persuasive authority in support of her position. To ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling at 341, this office further held that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited or independently located here. Because Ms. Yonts has "produced no affirmative evidence, beyond mere assertions, that the agency possesses such records as [she has] requested, we do not have a sufficient basis on which to dispute the agency's representation that no [additional] records exist." 09-ORD-214, pp. 3-4; see 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist). Compare 11-ORD-074. In the absence of the requisite prima facie showing, or any evidence to suggest that additional records were created or maintained in this case, the agency's ultimate disposition of Ms. Yonts' request(s) is affirmed with a single exception. See 12-ORD-183.
The only existing responsive record to which CHFS denied access it described as an "internal tracking sheet. " Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked Mr. Salansky to provide us with a copy of the record for in camera review in order to determine whether KRS 61.878(1)(j) was properly invoked. Although this office is precluded from disclosing the contents of the sheet, a review thereof revealed that sections for "Special Notes from the Reviewer to the QA Reviewer," the "QA Review," and the "AR Review" were actually blank. Only the section entitled "Additional Sanction Review" contains any information beyond the name of the "Provider," Dr. Suetholz, and his "Provider#/SSN.FEIN/NPI."
In withholding the sheet in dispute, CHFS relied exclusively upon KRS 61.878(1)(j), pursuant to which "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" may be withheld from disclosure. "Despite its manifest intention to enact a disclosure statute," the Kentucky Supreme Court has observed, "the General Assembly determined that certain public records should be excluded from disclosure. Among such records are [those identified at KRS 61.878(1)(i) and (j)]." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994); see Courier-Journal and Louisville Times Co. v. Jones, 895 S.W.2d 6-8 (Ky. App. 1995). Both the courts and this office have applied the language of these statutory exceptions in various contexts. See City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982); Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) ("investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 07-ORD-156.
Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See 05-ORD-221 (copy enclosed); see also OAGs 83-405, 89-69. This office has long recognized that KRS 61.878(1)(j) in particular was "intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency." 00-ORD-139, p. 6 (citations omitted). However, if the record in dispute cannot be properly characterized as a preliminary "recommendation" or "memorand[um]" containing opinions/policies in cases involving application of KRS 61.878(1)(j), as in this case, "disclosure [of the record(s) in dispute] is not contingent upon the occurrence of final agency action." 99-ORD-220, p. 7; 06-ORD-135. Rather, the question of whether the agency has taken any final action "becomes irrelevant. . . . Simply stated, we do not reach the second part of the KRS 61.878(1)(i)[or (j)] analysis, requiring final action of a public agency, if the first part of the analysis, requiring that the disputed record consist of [a recommendation/ memorandum] is not met." Id.; 04-ORD-125. Even assuming arguendo that CHFS did not waive its argument relative to KRS 61.878(1)(j) by disclosing Ms. Conway's opinion/recommendation, the remainder of this particular tracking sheet does not qualify for protection.
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.
Distributed to:
Ellen A. YontsGail HuberTimothy J. Salansky
Footnotes
Footnotes