Request By:
Paul F. Fauri
General Counsel
Department for Human Resources
Commonwealth of Kentucky
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General as to whether or not the Department for Human Resources may honor the request for information regarding payment to specific identifiable providers of health care through the Kentucky Medical Assistance Program. You state the following:
"The Department for Human Resources administers, through its Kentucky Medical Assistance program, the provisions of Title XIX of the Social Security Act (Medicaid). The Department pays directly to providers reimbursement for services to Medicaid eligible individuals. Frequently persons other than the provider or the patient request information relating to payments made by the Department to specific providers pursuant to the Kentucky Open Records Law, KRS 61.870 et seq.
A recent federal decision held that the United States Department of Health and Human Services (formerly HEW) could not publish a list of Medicare providers because of the provisions of the Privacy Act, 5 USC 552a. Florida Medical Association, Inc. v. Department for Health Education and Welfare, (USDC MD Fla.), 479 F.Supp. 1291 (1979). Additionally, a provision similar to 5 USC 552(b)(6) is found in Kentucky statutes, protecting against disclosure of information that constitutes an unwarranted invasion of privacy. KRS 61.878(1)(a)."
We have read the case you cite and other cases cited therein. It is our opinion that the Florida Medical Association case has no bearing on the question you present because Kentucky does not have a privacy act. The exception provided by KRS 61.878(1)(a) pertaining to personal privacy is discretionary and not mandatory. It is pointed out in the Florida case that under the Freedom of Information Act, 5 USC Sec. 552(a)(2),
"The disclosure provision of the FOIA are mandatory; but the exemptions of mandatory disclosure, in themselves, are discretionary. In short, the FOIA exemptions do not forbid the disclosure of information, and therefore do not authorize an inverse-FOIA action for injunctive relief." (Citations Omitted) 479 F.Supp. 1301.
The Kentucky Open Records Law is the same as FOIA in this respect -- the provisions requiring the disclosure are mandatory and the exceptions are discretionary. OAG 79-275. The Florida case was decided entirely on the strength of the Federal Privacy Act of 1974 and that Act has no force as to state records, only the records of federal agencies. Kentucky has no privacy act or statute similar to 5 USC 552a.
It is, therefore, our opinion that the Department for Human Resources may honor requests for information regarding payment to specific identifiable providers of health care through the Kentucky Medical Assistance Program.
Having answered the question you presented, the next question which naturally arises is whether the records of the Department showing payment to specific identifiable providers of health care come under the mandatory inspection requirements of the Kentucky Open Records Law, KRS 61.870 to 61.884. It is our opinion that they do.
KRS 61.878(1)(a) exempts from mandatory public inspection:
"Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
This exception calls for a weighing of the public interest in disclosure of the records against the individual right of personal privacy. We recognize that a physician's or a hospital's income for services rendered to patients is a private matter. We also recognize that the expenditure of public funds by an agency of the government is a matter of interest to the public.
We note that the statute uses the term "personal privacy" and that the same term is used in the Freedom of Information Act. The Federal District Judge in Florida considered that even when a physician was acting as an entrepreneur the payments he received for Medicaid treatment were a matter of personal privacy. We think he was wrong, but it doesn't matter whether he was or not because Kentucky has no privacy act and, furthermore, an opinion of a federal district court has no precedential force in Kentucky. Bell v. Commonwealth, Ky. App. 566 S.W.2d 785 (1978). The United States Supreme Court has recognized that under the Constitution there exists a right of personal privacy "or a guarantee of certain areas or zones of privacy." Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147 (1973) (dealing with abortion); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510 (1965) (dealing with contraception).
In Wine Hobbies USA, Inc. v. Internal Revenue Service, 502 F.2d 133 (3rd Cir. 1974), the court indicated that "personal privacy" had to do with a man's personal life such as his marital status, home residence, family matters and the question of whether he had a federal permit to make wine in his home. The court denied Wine Hobbies' request that it be given a list of all persons who had such a federal permit. We do not believe that receiving payments from the government for services requested under the Medicaid Program is of the same type of personal matter.
It is therefore our opinion that records showing payments made to specific identifiable providers of health care through the Kentucky Medical Assistance Program should be treated in the same manner as records pertaining to state contracts, that is, they must be made available for public inspection upon request.