Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Aubrey Williams appeals the Cabinet for Health and Family Services - Office of Inspector General's handling of his April 24, 2014 request to inspect and copy "[t]he incident report made by Fresenius Medical Care South Central Louisville as a result of the adverse incident that occurred at its facility involving [his client] on January 25, 2014" and records generated by the Office of Inspector General relating to the incident. KRS 61.880(1) requires a public agency that receives an open records request to determine within three business days whether it will comply with the request and to notify the person making the request, within the three day period, of its decision. The Office of Inspector General violated KRS 61.880(1) by issuing a series of conflicting and misleading responses to Mr. Williams's request over a period of time extending from April 29, 2014 to August 1, 2014.
The sequence of events leading up to this appeal is as follows:
. April 24 Mr. Williams submits a request referencing the Open Records Act to Public Records Custodian Cathy Day.
. April 24 Ms. Day responds in writing advising Mr. Williams that "[a] thorough review of our survey database revealed no records pertaining to your request."
. May 5 Ms. Day notifies Mr. Williams that his "request for information pertaining to Fresenius Medical Care South Central Louisville is ready," directing him to send her an $ 11.50 check for "the CD fee of $ 10.00 and postage of $ 1.50."
. May 9 Ms. Day notifies Mr. Williams that his "file is not ready," explaining that she "pulled the wrong Fresenius file." 1 Sending him a "refund form to fill out," she states that the incident involving Mr. Williams's client is "still under investigation" and that she "cannot release anything on this complaint as of today."
. May 22 Ms. Day again acknowledges Mr. Williams's open records request, stating that she will "explain the process for such requests" and indicating that because the requested records "are in active use," the OIG "anticipates the records will be available to you on or before June 16, 2014." She advises him that he "will be notified by mail of the fee to process your request."
. June 10: Division of Health Care Regional Program Manager Millie K. Zumstein contacts Mr. Williams by letter "to summarize the findings and action taken by the agency" in response to his "concerns regarding the care provided by Fresenius Medical Care South Central Louisville [which] was completed on May 12, 2014."
. July 14: Mr. Williams appeals the OIG's handling of his April 24 open records request and notification of his appeal is mailed to the OIG and CHFS's Office of Legal Services.
On August 1, 2014 the Office of Legal Services responded to Mr. Williams's open records appeal, providing this office with a copy of a July 24, 2014 letter to Mr. Williams in which Public Records Custodian Gail Huber acknowledged receipt of notification of his appeal as well as the "mistake made when your request was processed the first time." Ms. Huber advised:
. that Mr. Williams seeks records relating to an identified individual that can only be disclosed "upon order of a court of competent jurisdiction" because the records include medical information;
. that if Mr. Williams wishes to obtain "general information concerning the facility," he should "tailor [his] request in a manner that avoids identification of a specific patient or patients of the health care facility" since the OIG "can only fill requests that specify the documents need[ed], facility name, facility address, and a date range";
. that if he does not "legally represent the complainant/patient, " he "cannot specify the name in his request" but may "specify the date range";
. that if he is the patient's executor, he must provide a copy of "the Executor of Estate's court order";
. that if he represented the complainant/patient, he must provide a HIPAA release form signed by the complainant/patient; and
. that KRS 61.878(1)(k), incorporating 45 C.F.R. Part 2 into the Open Records Act, permits only the release of "certain documentation" and that "all other documentation must be obtained from the Centers for Medicare by way of a Freedom of Information Act request."
The Office of Legal Services amplified on Ms. Huber's letter in its August 1 supplemental response, indicating that it had not yet received the requested order appointing the personal representative of the estate or the authorization executed by the personal representative permitting Mr. Williams to receive the records he requested on April 24. Citing past decisions of this office that may or may not apply to Mr. Williams's request, counsel concluded:
Even if the proper authorization is provided, however, OIG cannot disclose all of the records requested by Mr. Williams. Mr. Williams has already been provided the Form CMS-Services (CMS) Statement of Deficiencies. Because Fresenius Medical Care is a Medicare certified facility, OIG complaint inspections are conducted as joint state/federal surveys. As such, they are governed by 45 CFR § 2.3. When OIG receives Open Records requests for such records, it is required by federal law to send the records to CMS's Atlanta Regional Office, where the request is processed as a Freedom of Information Act (FOIA) request.
The lengthy review of the facts, set forth above, is warranted under the present circumstances. Nearly five months have elapsed since Mr. Williams submitted "a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure, " 2 and the status of that request remains in limbo.
KRS 61.880(1) states:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Eighteen years ago the Kentucky Court of Appeals recognized:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. Therefore, we cannot agree with [the public agency] that a limited and perfunctory response to [an open records] request even remotely complied with the requirements of the Act - much less that it amounted to substantial compliance.
Edmondson v. Alig. 926 S.W.2d 856, 858 (Ky. App. 1996). Just over a year ago the Supreme Court again addressed KRS 61.880(1) recognizing that "[o]pen records disputes are notorious . . . for posing unique challenges to our usual adversarial method of dispute resolution" and that public agencies must be held to their burden of proof.
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). Only the Cabinet knows what is in its records and it has, to date, utterly failed to meet its burden of proving that its actions were justified under the Act.
Mr. Williams was initially advised that the records identified in his request did not exist. He was subsequently advised that records had been located and would be mailed to him upon receipt of copying and postage fees. He was thereafter notified that his request was denied because the incident was still under investigation; 3 that, because of the OIG's "process," the records would not be available until June 16; and, most recently, that he has already received the only document the OIG may legally disclose to him. 4 In the same letter, the OIG advised that it treats requests such as his as Freedom of Information Act requests and "is required by federal law to send the records to CMS's Atlanta Regional Office, where the request is processed as a Freedom of Information Act request." 5 These conflicting and misleading responses violated KRS 61.880(1). Almost five months after he submitted his open records request, the OIG has not notified Mr. Williams whether, or how, it intends to comply with his request. It is unclear whether he will obtain additional responsive records if he provides documentation verifying his legal representation of the individual identified in his request, whether the OIG has forwarded his request and responsive records to CMS to be processed under the Freedom of Information Act, or whether he must submit a Freedom of Information Act for the records to CMS. He is only marginally closer to the final decision he should have received from the OIG in April 2014.
On the facts before us, a division of the Cabinet for Health and Family Services describes a "process" for open records requests that deviates from the strict legal requirements found at KRS 61.880(1). See 14-ORD-196; 09-ORD-007. It alternatively commits to disclosure of the records, postpones access to the records, and denies access to the records. If it has not already done so, the OIG is obligated to retrieve and review all responsive records, release any that are not exempt," and identify the statutory exception authorizing nondisclosure of the remainder. Continued equivocation is not an option.
Either party may appeal this decision 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 Ms. Day pulled the file for Fresenius South Louisville and not Fresenius South Central Louisville as requested.
2 Providence Journal Co. v. FBI, 460 F. Supp. 778, 792 (D.R.I.) reversed on other grounds on appeal, 605 F.2d 1010 (1st Cir. 1979) cited in Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) .
3 The OIG's response did not cite the statutory exception to public inspection upon which it relied or explain how the incident report and related records qualified for exclusion.
4 It is unclear from counsel's response whether the already disclosed CMS Statement of Deficiencies, is, in fact, the only record the OIG is authorized to disclose, and, if so, why this is the case.
5 It is unclear from counsel's response whether OIG forwarded Mr. Williams's request, and the records responsive to that request, to CMS's Atlanta Regional Office.