Opinion
Opinion By: Andy BeshearAttorney General;James M. HerrickAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services ("Cabinet") violated the Open Records Act in denying law firm Stites & Harbison PLLC's December 3, 2018, request for records pertaining to "Quality Care for Kids, LLC, Michelle Stivers and/or A. J. Stivers" from 2010 forward. 1 For the reasons stated below, we find that the Cabinet has not established a proper basis for its denial.
The law firm's request, submitted by Peggy Tipton, asked for all relevant records maintained by the Cabinet, "including but not limited to the Department of Medicaid Services, Office of Inspector General, Division of Audits and Investigations," and in particular those "concerning any investigation or review" by the Cabinet, "its agents or contractors," as well as any records "received or issued by the Cabinet . . . concerning any investigation or review . . . conducted in connection with the Medicaid Integrity Program." On December 7, 2018, the Cabinet responded that the Office of Inspector General ("OIG") "has searched its records database for releasable documents and has discovered that the case is still under investigation. Pursuant to KRS 61.878(1)(h) records are exempt from dissemination under the open records act when an active investigation is ongoing and premature release would harm, 'prospective law enforcement action or administrative adjudication. '" On January 8, 2019, attorney Robert C. Moore initiated this appeal on behalf of the law firm.
The Cabinet's response to the appeal, dated January 18, 2019, reasserted the argument under KRS 61.878(1)(h) and additionally invoked KRS 61.878(1)(l), which exempts from public disclosure "[p]ublic records of information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." As a basis for this latter argument, the Cabinet cited both KRS 205.8465(4) and KRS 17.150(2).
Adequacy of search
As a preliminary matter, we note that the Cabinet did not indicate in its response to Ms. Tipton that any part of the Cabinet other than OIG had conducted a search for responsive records. This was an inadequate search in view of the scope of her request, which extended to all records maintained by the Cabinet relating to QCK or the associated individuals Michelle Stivers and A. J. Stivers. Since QCK was a Medicaid recipient, it is presumed that the Department for Medicaid Services ("DMS") would have been in possession of some responsive records maintained in the ordinary course of its activities.
A public agency, in responding to an open records request, is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96 (quoting Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978)). Accordingly, the agency "must ensure that its initial search . . . satisfies [this] standard for an adequate search and that it can reasonably be expected to capture all responsive records." 16-ORD-110 (emphasis in original). Since the search for records was evidently confined to OIG, thus failing to encompass any records kept by DMS in the ordinary course of business, we find that the Cabinet's search was inadequate and did not comply with the Open Records Act.
Application of KRS 205.8465(4)
On appeal, the Cabinet represents that OIG has completed its investigation of a "credible allegation" of fraud on the part of QCK and has referred the matter to the Attorney General's Office of Medicaid Fraud and Abuse ("OMF") for further investigation. KRS 205.8465(4) provides, with regard to allegations of fraud submitted to the Medicaid Fraud Control Unit ("MFCU"), "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." Therefore, the Cabinet argues that no records relating to the allegation may be disclosed. We rejected this argument in 13-ORD-195 (copy attached), holding that "KRS 205.8465(4) does not impose a blanket confidentiality on all MFCU information and reports on alleged offenders," but merely provides that the confidentiality of any such information and reports is to be determined in accordance with the Open Records Act. We adopt the reasoning in 13-ORD-195 as the basis of our decision that KRS 205.8465(4) does not render the disputed records confidential.
Application of KRS 17.150(2)
KRS 17.150(2), incorporated into the Open Records Act by KRS 61.878(1)(l), provides, in pertinent part:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
. . ..
(d) information contained in the records to be used in a prospective law enforcement action.
KRS 17.150(3) further provides that "[w]hen a demand for the inspection of the records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity."
Asserting that OMF "has incorporated the records [from OIG] into its case file, the Cabinet argues that "the records remain confidential, because they are intelligence and investigative reports maintained by a criminal justice agency, namely [OMF]." 2 By way of meeting its burden of justification under KRS 17.150(3), the Cabinet argues that OMF "plans to conduct additional witness interviews, and needs to ensure that the witnesses do not know the entire nature of the investigation," thus "allow[ing] the investigators to ask unexpected questions and receive truthful, unbiased responses."
We have previously held that "prejudice to potential witnesses" was a sufficient showing of justification under KRS 17.150(3) for withholding intelligence and investigative reports regarding a prospective law enforcement action pursuant to KRS 17.150(2)(d). Since the Cabinet's argument is based on a type of prejudice to potential witnesses, we find this an adequate justification for refusing access to "intelligence and investigative reports" relating to the pending investigation by OMF.
The question remains, however, what records constitute "intelligence and investigative reports" under KRS 17.150(2). While not precisely delimiting the meaning of that term, we have held in the past that its definition is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246 (emphasis added). Likewise, the definition includes audio and video interviews of criminal suspects, as well as photographs made as part of a criminal investigation. 04-ORD-234; 09-ORD-030.
By contrast, we have held that 911 recordings, even when maintained by a criminal justice agency, "cannot properly be characterized as intelligence or investigative reports" because they are "maintained collaterally to, and not as an integral part of, the investigative process." 06-ORD-230. Likewise, police incident reports or initial offense reports are generally not exempt as investigative documents under either KRS 17.150(2) or KRS 61.878(1)(h). 09-ORD-205. Similarly, we have found KRS 17.150(2) "facially inapplicable" to such materials as "grant applications, federal program applications and purchase receipts, training manuals and written policies" generated in the ordinary course of business, as they are not the product of an investigative process. 17-ORD-179.
Accordingly, with regard to any DMS records maintained in the ordinary course of that department's activities, and not generated in the course of OIG's investigation, KRS 17.150(2) would not apply. 3 As to OIG's records generated in the course of its investigation and consisting of information to be used in OMF's prospective law enforcement action, the Cabinet properly invoked KRS 17.150(2).
Application of KRS 61.878(1)(h)
Turning to the Cabinet's original justification for nondisclosure of records, KRS 61.878(1)(h), that provision permits nondisclosure of:
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. . . . 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.
To rely upon this exception, a public agency must establish three things: (1) that the records in question are "records of law enforcement agencies or agencies involved in administrative adjudication" ; (2) that the records "were compiled in the process of detecting and investigating statutory or regulatory violations"; and (3) that disclosure "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. " 17-ORD-224.
As to the first prong of the test, we have held that a public agency, in appropriate cases, may invoke KRS 61.878(1)(h) on behalf of an outside law enforcement agency with jurisdiction over the matter, with which the custodial agency is cooperating. See, e.g. , 14-ORD-223; 09-ORD-143. Under the circumstances, therefore, the Cabinet may invoke the exception on behalf of the current investigating agency, OMF.
In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Supreme Court of Kentucky addressed KRS 61.878(1)(h) in detail with respect to the threshold for a showing of harm. The Court held that when an investigative record pertains to a prospective law enforcement action:
the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.
Id. at 851. Noting that the public agency bears the burden of establishing the applicability of an exception to the requirement of disclosure, the Court stated:
[T]he court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing . . . to justify the exemption. The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it.
Id. at 852. Thus, a concrete, non-speculative risk of harm must be attributed to the release of the particular records at issue.
"It is the agency's initial burden under City of Ft. Thomas , at a minimum, to 'identif[y] the particular kinds of records it holds and [explain] how the release of each assertedly exempt category would harm the agency in a prospective enforcement action. '" 18-ORD-177 (quoting City of Ft. Thomas, 406 S.W.3d at 851). In this case, the Cabinet fails to meet that initial burden. Nevertheless, with regard to those records generated by OIG's investigation, which has been referred on to OMF, the Cabinet has already justified its denial under KRS 17.150(2). Thus, in applying KRS 61.878(1)(h), we need only consider the remaining records; namely, the non-investigative records of DMS.
To be exempt under KRS 61.878(1)(h), records must be "compiled in the process of detecting and investigating statutory or regulatory violations." Records in that category are "those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigative process." 09-ORD-012 (quoting OAG 89-11). This does not include records "which were 'segregated' in connection with an investigation [but were] not made uniquely in a specific detection and investigation process." Id. ; see also 05-ORD-078. Thus, we found in 01-ORD-67 that records of Medicaid payments made to Dr. Steve Henry, which were under examination by a federal grand jury, were not protected by KRS 61.878(1)(h) because "the documents were generated in the normal course of business, and therefore independently of any investigative process." Similarly, in this appeal, routinely generated Medicaid records possessed by DMS would not qualify for the exemption under KRS 61.878(1)(h). Therefore, we find no exemption applicable to those records.
Conclusion
While KRS 205.8465(4) does not impose a confidential status on records relating to Medicaid fraud allegations, the Cabinet for Health and Family Services has established that the records generated by the OIG investigation, currently being pursued by OMF, may be withheld pursuant to KRS 17.150(2), as incorporated into the Open Records Act by KRS 61.878(1)(l). The Cabinet failed to conduct an adequate search for records responsive to the request, inasmuch as routinely maintained records of the Department for Medicaid Services were omitted. As to these routine DMS records, the Cabinet has failed to establish an exemption under either KRS 17.150(2) or KRS 61.878(1)(h). Therefore, we find the Cabinet in partial violation of the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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