Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Attorney General, Office of Medicaid Fraud and Abuse Control ("OMF") properly relied on KRS 61.878(1)(l) and KRS 205.8465(4) in denying attorney Coy Travis' August 28, 2013, request for records connected with OMF investigations and enforcement actions. For the reasons that follow, we find that the response did not meet the requirements of the Open Records Act.
Mr. Travis, on behalf of his client Anthem Blue Cross and Blue Shield, made his August 28 request for copies of the following:
Any and all documents relating to any and all audits, investigations, site/ office visits, grievances, complaints, hearings, proceedings, or other inquiries or official agency actions filed against [a group of named physicians and medical centers] at any point after January 1, 2003. Said request includes, but is not limited to, copies of the following:
(Emphasis omitted.)
On September 4, 2013, Assistant Attorney General Michelle Rudovich replied as follows:
The records that you have requested are exempt from disclosure pursuant to KRS 205.8465(4) which states that "any information or report concerning an alleged offender shall be considered confidential in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884." KRS 61.878(1)(l) provides that public records are exempted from production if [ sic ] the "disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
Mr. Travis initiated an appeal to the Attorney General on September 6, 2013.
Ms. Rudovich responded in writing on September 16, 2013, urging that KRS 205.8465(4) be construed as other confidentiality statutes have been construed, and further arguing:
[I]f the General Assembly intended for any exemption under the Open Records Law to not apply to any information or report concerning an alleged offender under KRS 205.8465(4), it would have made the confidentiality of any such information or report subject to the Open Records Law. Instead, the provision makes any such information or report confidential in accordance with KRS 61.870 to 61.884, with no exceptions.
(Emphasis in original.)
We observe at the outset that the statutory provision in question is ambiguously drafted. For the sake of context, KRS 205.8465(4) in its entirety reads as follows:
No employee of the state Medicaid Fraud Control Unit, the Office of the Attorney General, the Office of the Inspector General, or the Cabinet for Health and Family Services shall notify the alleged offender of the identity of the person who in good faith makes a report required or permitted by KRS 205.8451 to 205.8483 nor shall the employee notify the alleged offender that a report has been made alleging a violation of KRS 205.8451 to 205.8483 until such time as civil or criminal proceedings have been initiated or a formal investigation has been initiated. Any information or report concerning an alleged offender shall be considered confidential in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884.
(Emphasis added.)
The ambiguity arises from the phrase "in accordance with. " Since no provision of the Open Records Act itself specifically makes Medicaid Fraud Control Unit ["MFCU"] records confidential, there is no specific provision of the Act with which this statement of confidentiality accords . Rather, the confidentiality asserted is contrary to the Open Records Act, except insofar as particular records may be exempt under KRS 61.878. Thus, KRS 205.8465(4)'s reference to the Act as a whole tends to obscure more than clarify the statute.
Had the legislature stated that the information was "confidential subject to the Kentucky Open Records Law, " it would be clear that the Open Records provisions took precedence over KRS 205.8465(4) and the agency must assert an exception other than KRS 61.878(1)(l). Conversely, if the statute read "confidential notwithstanding the Kentucky Open Records Law, " then the confidentiality statute would clearly supersede the Open Records provisions. As written, however, the meaning of the provision is ambiguous, apart from the fact that some sort of confidentiality is contemplated.
OMF argues that "in accordance with the Kentucky Open Records Law" is essentially a cross-reference to KRS 61.878(1)(l), which exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Under this view, KRS 205.8465(4) would be, through that language, identifying itself as a confidentiality statute to bring MFCU records within the ambit of the exemption in KRS 61.878(1)(l).
Mr. Travis, meanwhile, maintains that KRS 205.8465(4) "does not provide any blanket confidentiality, but rather relies upon the provisions [of] the Open Records Law" to the extent that any exemptions may apply. He suggests the most likely applicable provision is KRS 61.878(1)(h), which excludes:
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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, 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[.]
Thus, in Mr. Travis' view, KRS 205.8465(4) does not make any records confidential, but merely refers to the fact that exceptions to the Open Records Act shall apply where they apply. Under this analysis, OMF's citation of KRS 61.878(1)(l) is "not sufficient grounds for denying the Request," but is merely a circular argument, because KRS 205.8465(4) is not a true confidentiality statute.
We are aware of no other statute relating to records which uses the formulation "confidential in accordance with the Kentucky Open Records Law. " Two other Kentucky statutes, however, employ the phrase "confidential in accordance with."
KRS 311.550(21) defines "letter of agreement" as a document that "is confidential in accordance with KRS 311.619," this latter statute containing the comprehensive confidentiality provisions for the Impaired Physicians Program. Similarly, KRS 222.271(1) provides that treatment records for chemical dependency programs "shall be confidential in accordance with administrative regulations promulgated by the [C]abinet [for Health and Family Services]"; the Cabinet's regulations 1 in turn provide for the confidential treatment of the records. In each of these cases, the statute or regulation referred to provides for the confidentiality of the records. A comparison to these statutes would suggest that we look to the Open Records Act for the terms under which MFCU records should be considered as confidential.
Furthermore, "[a] cardinal rule of statutory construction is that every statutory provision is presumed to have meaning and courts must avoid an interpretation that would render a provision superfluous. "
U.S. v. Christman, 712 F.Supp.2d 651, 656-57 (E.D. Ky. 2010). "No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded to every part of the Act."
George v. Scent, 346 S.W.2d 784, 789 (Ky. 1961). OMF's construction of KRS 205.8465(4) would arguably make the phrase "in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884," meaningless because the sentence would simply mean that "[a]ny information or report concerning an alleged offender shall be considered confidential. "
We are guided by the admonition in KRS 61.871 that exceptions to the Open Records Act are to be "strictly construed." If there is reasonable doubt as to whether a statute makes records confidential, then a strict construction of the exception in KRS 61.878(1)(l) leads us to conclude that it does not. Therefore, we find that KRS 205.8465(4) does not impose a blanket confidentiality on all MFCU information and reports on alleged offenders.
Our understanding of the last sentence of KRS 205.8465(4) may be expressed as: " The confidentiality of any information or report concerning an alleged offender shall be determined in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884." Alternatively, to use a closer approximation of the statutory language, "Any information or report concerning an alleged offender shall be considered confidential if it is so in accordance with the Kentucky Open Records Law, KRS 61.870 to 61.884 ."
This reading gives meaning and effect to the entire provision and is consistent with the citation to the Open Records Act as a whole rather than to any particular provision. While our interpretation arguably makes the subsection's last sentence entirely superfluous, we believe the sentence serves the purpose of distinguishing MFCU's information and records as a whole from the specific items of information--the identity of an informant and the existence of a report--identified in KRS 205.8465(4) as the subject of limited confidentiality obligations.
Accordingly, we conclude that OMF improperly relied on KRS 205.8465 and KRS 61.878(1)(l) as a complete bar to Mr. Travis' inspection of MFCU records. To the extent that other exceptions under KRS 61.878 may apply to certain records, inspection may be denied with an explanation of the applicability of the exception. Otherwise, the records should be disclosed. We agree with Mr. Travis' assertion that the "law enforcement" exception under KRS 61.878(1)(h) is one of the exceptions that may apply to MFCU records.
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 proceedings.
Distributed to:
Coy Travis, Esq.Michelle Rudovich, Esq.Robyn Bender, Esq.
Footnotes
Footnotes
1 Viz. 902 KAR 20:160, Section 3(4)(c)(6).