Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Ms. Jacqueline C. Kingsolver to the Department for Medicaid Services on November 15, 1993. On behalf of an undisclosed client, Ms. Kingsolver requested access to prescription claim information maintained by the Department on computer database. Specifically, she requested:
1. Claim transaction detail data for the period from January 1991 through December 1991 for each prescription claim paid including:
a. drug code used to claim submittal;
b. quantity prescribed;
c. date dispensed;
d. dispensing physician's state provider ID number;
e. amount paid;
f. dispensing pharmacy's state provider ID number;
g. pharmacy prescription number (if reported on claim).
2. Provider data, including:
a. physician and pharmacy state provider ID numbers;
b. name and address (including city and zip code) of each physician and pharmacy provider;
c. physician specialty.
Ms. Kingsolver provided the Department with a statement of purpose, as required by KRS 61.970(1), certifying that the database would be used:
To accumulate for analysis and possible publication data for a drug utilization study on the Medicaid programs of all fifty states for the purpose of identifying trends in the usage of prescription drugs by physician specialty and therapeutic category;
To provide such data and analysis based thereon in the form of reports to pharmaceutical companies to assist in their verification of the accuracy of rebate payments paid by such companies to Medicaid programs and in subsequent resolution of disputes between companies and Medicaid programs regarding rebate payments.
In her request, Ms. Kingsolver acknowledged "that, as presently defined, [her] purpose for obtaining this information is a commercial one," but urged the Department to afford her access to the database to assist her client in its drug utilization study project, and, in turn, to assist the Department in "expeditiously resolv[ing] rebate appeals with pharmaceutical companies."
On November 18, 1993, Mr. Harold R. Blom, Commissioner of the Department for Medicaid Services, denied Ms. Kingsolver's request. Relying on KRS 61.970(4) and OAG 92-99, he maintained that because the information stored on the database would be used, by Ms. Kingsolver's own admission, for a commercial purpose the Department could properly deny her request.
In her letter of appeal to this Office, Ms. Kingsolver objects to Commissioner Blom's reliance on KRS 61.970(4), noting that the Commissioner "failed to explain his [sic] applicability of the commercial purpose exception . . . to [her] request." Moreover, she asserts, his denial is "inconsistent with the intent and purpose of the Kentucky Open Records Act, as recited in the Act's preamble. . . . (KRS 61.882(4)." 1 Ms. Kingsolver urges this Office to issue a decision consistent with these views.
The question presented in this open records appeal is whether the Department for Medicaid Services properly relied on KRS 61.970(1) in denying Ms. Kingsolver's request for access to prescription claim information stored on its computer database. For the reasons set forth below, and based on the reasoning announced in OAG 92-99 and 93-ORD-62, we conclude that the Department properly denied Ms. Kingsolver's request.
As Commissioner Blom correctly notes, in OAG 92-99 this Office held, in interpreting the Public Access to Governmental Databases Act, that an agency must release records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) through (k) if requested for a noncommercial purpose, but that it may, in its discretion, withhold the same records if requested for a commercial purpose. See, e.g., OAG 91-4; OAG 91-116; and OAG 92-99. There we noted that a "commercial purpose" is defined as:
The direct or indirect use of all or any part of a database, for sale, resale, solicitation, rent, or lease.
OAG 92-99, p. 3.
Ms. Kingsolver concedes in her November 15, 1993, request to the Department for Medicaid Services that her purpose in seeking access to the Department's database is, at least in part, a commercial one. In 93-ORD-62, this Office held that a public agency may properly deny a request for a copy of all or any part of a database when the requester certifies a dual purpose, one of which is commercial. Accordingly, Ms. Kingsolver's assertion that the Department may ultimately benefit from her client's intended use of the database has no bearing on the resolution of this issue. It is within the Department's discretion, under current law, to deny her request.
This Office's holding in 93-ORD-118 does not alter our conclusion. The holding in that decision, which has been broadly interpreted, is in fact narrow in its scope. 93-ORD-118 turned on a unique set of facts, to wit: Requester originally sought access to records containing information relating to state employee salaries, etc., in no particular format; requester was advised by agency that information was available in "computerized run" and that she should resubmit her request for records in this format to agency's managing attorney; requester does so; requester's amended request is denied on grounds that the requested records are not available in "readable form," and agency is not required to create a record to satisfy her request. Our holding in that decision was premised on the notion that a requester who seeks access to records in no particular format, but which happen to be stored on an existing database, should not be denied access to those records, if his or her purpose is a noncommercial one, simply because the database contains both exempt and nonexempt information and the agency may have to redact the exempt information. Otherwise, "records which are electronically stored, and which contain both exempt and nonexempt information, [would be] forever exempt from public inspection." 93-ORD-118, p. 5.
Ms. Kingsolver requested records in a computerized format, agreeing to pay a reasonable fee for the creation of a non-standardized, unique, custom-made record, or for copies on the flat file electronic American Standard Code for Information Interchange (ASCII). Her purpose in seeking access to the database was, in part if not wholly, commercial. This appeal is clearly distinguishable from the facts before us in 93-ORD-118. That decision is not dispositive. The Department for Medicaid Services properly denied Ms. Kingsolver's request.
Ms. Kingsolver may challenge this decision by initiating action in the appropriate circuit court. 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.
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