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 Cabinet for Health and Family Services violated the Kentucky Open Records act in its disposition of the request of attorney Tad Thomas for copies of various records from the Office of Inspector General ("OIG"). We conclude that the Cabinet's disposition of the request was in accordance with the Act.
On April 10, 2014, Mr. Thomas made two separate requests using the OIG Division of Healthcare's Open Records Request form. The requests covered statements of deficiencies/plan of correction, Type A or B citations, license, QI/QM reports, home office cost allocation reports, ownership disclosures, Casper reports, MDS detail reports, Schedule NF-1 to NF-8, and daily census/ resident activity reports from January 2009 forward.
In the fields labeled "Facility Name" and "Address," Mr. Thomas did not give the name and address of a facility. Instead, in the two requests, he filled in respectively "All Kentucky Facilities Owned by Kindred Healthcare" and "All Kentucky Facilities Owned by Genesis Healthcare. "
On April 11, 2014, according to a note written on the request form, a representative of the Cabinet telephoned Mr. Thomas' office "and asked him to re-submit Requests w/specific names of facilities & their addresses. Also explained we don't have the "OTHER" info that he is requesting, " i.e ., QI/QM reports, home office allocation reports, ownership disclosures, Casper reports, MDS detail reports, Schedule NF-1 to NF-8, and daily census/ resident activity reports. Since the record reflects that no written response was sent to Mr. Thomas within three business days, we find that the Cabinet committed a procedural violation of KRS 61.880(1), which requires a written disposition within that time period.
Mr. Thomas did not resubmit his requests as the Cabinet had asked, but sent a follow-up letter on May 5 asking why he had received no written response. On May 7, 2014, Cathy S. Day in the OIG repeated the request that Mr. Thomas resubmit his requests "with specific names of facilities/addresses." Ms. Day also stated that under federal regulations the OIG could "only release the SOD/POC, Type A citations, applications, licenses, and final letters."
Mr. Thomas appealed to the Attorney General on June 4, 2014, arguing that he has no way of knowing which facilities were owned by Kindred or Genesis, but that information should appear in the OIG's records. He contends that "[t]he Cabinet is required to conduct a search of its documents to locate those showing which homes are owned by which companies and producing the requested documents from each."
Mr. Thomas also argues that one of the record types he requested under the category of "Other," namely "organizational structure," should not be considered privileged under federal law because he had received that information from the OIG on facilities in the past. As evidence, he provides license application forms for a number of facilities showing the owner of each facility. The Cabinet responds that "ownership disclosures may be part of the application process, and applications are available if requested," but it is still necessary for the requester to identify the facility in question, as Mr. Thomas had done in those prior requests.
Thus, the Cabinet consistently maintains that it cannot access OIG records where the facility has not been identified in the request. The central issue on appeal, therefore, is whether the Cabinet is required to take extraordinary measures in response to an open records request to identify which facilities are owned by a certain entity.
Cabinet for Health and Family Services Assistant Counsel Timothy J. Salansky responded to this appeal on June 11, 2014. Mr. Salansky reaffirms that the OIG "cannot search for any of the records that Mr. Thomas requested without knowing the name and/or address of the specific facility." He further explained as follows:
OIG researches Open Records requests for its records by using Aspen Central Office, a database developed and maintained by the Centers for Medicare and Medicaid Services (CMS). The Aspen search criteria do not include the owner of the facility. ?
?
? In order to find out whether any healthcare facilities are "owned" by Kindred Healthcare or Genesis Healthcare, OIG would be required to access the records of every licensed or certified healthcare facility in Kentucky . ? OIG has no capability to search for facilities by owner.
(Emphasis added.) Mr. Salansky indicated that, in responding to this appeal, he had searched the Secretary of State's website and found no assumed names for Kindred Healthcare or Genesis Healthcare. He pointed out that the Secretary of State's records are just as accessible to Mr. Thomas as they are to the Cabinet.
In a supplemental letter dated June 12, 2014, Mr. Salansky added that he had personally "conducted a Google search of the names Kindred Healthcare and Genesis Healthcare, " and gave names and locations for six Kindred Healthcare facilities and nineteen Genesis Healthcare facilities in Kentucky that he found listed on the websites of the respective companies. He stated: "Again, this information is equally available to Mr. Thomas. If he submits Open Records Requests for these specific facilities, OIG will search for and release responsive, non-privileged records." 1 There is no indication in the record that any further communications have occurred or are expected to occur between the parties to attempt a resolution of this appeal.
With respect to the categories of records not within the OIG's possession, we find no violation of the law. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. We find no basis for doubting the agency's representations, and the record reflects that the Cabinet appropriately directed Mr. Thomas to CMS, which may possess the requested records.
As for the records possessed by the OIG, a public agency is required to provide copies of public records to a person located in another county "after he precisely describes the public records which are readily available within the public agency. " KRS 61.872(3)(b). A request which would require the OIG to review the records of every licensed or certified healthcare facility in Kentucky, merely to determine a threshold question of ownership, does not precisely describe responsive records readily available within the public agency. Cf . 06-ORD-004 (request requiring agency "to review every record ? during a specified timeframe" did not give precise description). We so determine because the record indicates that the OIG cannot perform a search of records by owner of the facility. This is a limitation imposed by the federal CMS database.
"[A] public agency is not obligated to compile a list ? to satisfy an Open Records request" or "to conduct research or compile information to conform to a given request." 08-ORD-114 (citing 07-ORD-42; OAG 89-45); see also 10-ORD-207. While Mr. Salansky's Google search demonstrates that information about the ownership of healthcare facilities may be freely available with some simple research, it is not incumbent upon the agency to perform that research for the requester; nor, indeed, could a public agency guarantee the accuracy of information found outside its own records. We therefore find that the Cabinet did not violate the Open Records Act by requiring Mr. Thomas to identify the specific healthcare facilities whose records he was requesting.
In conclusion, we find no substantive violation of the Open Records Act. The Cabinet committed a procedural violation by failing to make a timely written disposition of the 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 proceedings.
Footnotes
Footnotes
1 Mr. Salansky also stated by way of correction that "OIG does, in fact, have access to QM reports and Casper reports on specific facilities. The reports are maintained by CMS." Mr. Thomas does not appear to be challenging the privileged nature of these reports under federal law.