Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Humana Insurance Company ("Humana") violated the Kentucky Open Records Act in failing to issue a written response upon receipt of Deborah Pearce's February 14, 2014, written request, directed to Specialist Jacob Zinser, "Humana Grievance and Appeals," for "all documentation pertaining to your denial, and approval of power wheelchair seat elevation system for fiscal year 2013[,]" specifically, "the number of requests that were accepted, the number of requests that were rejected and any rational[e] used to make that determination." Ms. Pearce also requested "any documents, records and other information about the claim, including guideline[s], criteria, or clinical rationale you relied on to make a determination." Having received no response of any kind, Rodney Pearce initiated this appeal on behalf of his wife, advising that "Humana Grievance and Appeals presented itself as an agent for the State of Kentucky" and "[w]e are currently within their grievance process concerning a much needed attachment for my wife's wheelchair. "
This office issued a Notification to Agency of Receipt of Open Records Appeal to Mr. Zinser on March 25, 2014, advising that any response must be received no later than March 31, 2014, but received no response from Mr. Zinser/Humana as of that date. However, this office independently confirmed that Humana derives public funds only "in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process," which are not included "in the determination of whether a body is a public agency" under KRS 61.870(1)(h), the only subsection of KRS 61.870(1) which is potentially applicable. By letter dated April 15, 2014, Critical Inquiry Analyst Kayla Hrastinski responded on behalf of Humana. Ms. Hrastinski advised that "pursuant to KRS 61.870(1)(h) Humana does not believe it is a public agency subject to Kentucky's Open Records Act. " According to Ms. Hrastinski, Ms. Pearce "is covered by the Kentucky Employees Health Plan (KEHP) through her employment with the Commonwealth of Kentucky. . . . KEHP is a self-funded non-ERISA account sponsored by the Commonwealth. Humana is only the Plan Manager." Accordingly, Humana advised that the Kentucky Personnel Cabinet is the appropriate public agency to receive any request made under the Open Records Act pertaining to KEHP. 1 This office agrees. Based upon the following, the Attorney General finds that Humana is not a "public agency" for purposes of the Open Records Act; nor, consequently, is Humana required to comply with provisions of the Act.
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person." As defined in KRS 61.870(2), "public record" means:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
Resolution of this appeal turns on whether Humana is a public agency within the meaning of KRS 61.870(1). As amended in the 2012 legislative session, KRS 61.870(1) defines "public agency" as follows:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
Humana is a for-profit corporation headquartered in Louisville, Kentucky, with all of the conventional indicia thereof, which render the definitions of public agency codified at KRS 61.870(1) facially inapplicable with the possible exception of subsection (1)(h). As recently amended, however, KRS 61.870(1)(h) excludes any funds derived from a contract for goods or services "obtained through a public competitive procurement process" from being considered in determining whether a "body" satisfies the 25% threshold. A representative of the Kentucky Personnel Cabinet provided this office with a copy of Humana's "Master Agreement," i.e., contract with the Commonwealth of Kentucky, pursuant to which Humana is responsible "for performing Medical Benefit Administrator services [defined in the Request for Proposal] for the Commonwealth of Kentucky Public Employee Health Insurance program [PEHIP]," and confirmed that said contract was, in fact, obtained through a public competitive procurement process. In addition, KRS 18A.2254 expressly requires procurement of a third-party administrator to administer a self-insured plan offered to the PEHIP, commonly known as KEHP, in accordance with KRS Chapter 45A, the Kentucky Model Procurement Code. Further support for this conclusion is found at http://opendoor.ky.gov/search/Pages/contractsearch.aspx, on which Humana Health Insurance is listed as the Vendor and the Authorization for the contract is listed as "Competitive Negotiation -- Services." In light of the foregoing, this office concludes that Humana is not a "public agency" within the meaning of KRS 61.870(1) and therefore is not required to comply with provisions of the Open Records Act. See 12-ORD-222. Consequently, Humana did not violate the Act in failing to issue a timely written response upon receipt of Ms. Pearce's request as otherwise required under KRS 61.880(1) . None of the underlying issues regarding the denial by Humana of Ms. Pearce's request for a power wheelchair seat elevation system are justiciable in this forum.
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:
Rodney PearceJacob Zinser
Footnotes
Footnotes
1 Notwithstanding this fact, Humana provided Ms. Pearce "with the documents, records, and other information related to her claim" by letter dated March 28, 2014, subsequent to Mr. Pearce's March 19, 2014, appeal.