Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in these consolidated appeals, both of which attorney Elizabeth A. Johnson filed on behalf of her clients, Surgical Associates of Lexington, Inc. and Anita A. Gray, is whether the Cabinet for Health and Family Services, Department for Medicaid Services, violated the Kentucky Open Records Act, specifically KRS 61.872(5), in the disposition of her separate but very similar January 5, 2012, requests for multiple categories of records and information relating to Audit No. KY01103 and Audit No. EA0000024, respectively. Specifically, Ms. Johnson requested a copy of the "contract between the Commonwealth of Kentucky and Ingenix or its parent, Optuminisght, authorizing and governing the Audit" and "[a]ny documents identifying or discussing the date range audited[,]" "identifying or discussing a review process for the audit [,]" "identifying or discussing the 'Universe' of claims for purposes of the Audit, including, but not limited to the claim period[,]" or "identifying and/or discussing the measures of precision employed by Ingenix, National Auditing Service, or any other related subcontractors in its sampling and projections." Ms. Johnson also sought "[a]ny documents between Ingenix, . . . or any other related subcontractors under the Audit [,]" "[a]ny documents identifying the names and qualifications of any individuals involved in the Audit or review of the Audit and their respective roles in the Audit [,]" "[a]ll other Audit work papers, including, but not limited to all documents supporting the conclusions on Audit claim determinations[,]" and "[a]ny documents identifying or discussing the nature of and authority for the Audit including whether the Audit is a Surveillance and Utilization ("SURS") audit, Recovery Audit Program ("RAP") audit, or other Audit authority." In total she requested eleven similarly framed categories of records in the first instance, and sixteen in the latter, clarifying that each request included "all documents, emails, electronic files, notes, reports, interviews, photographs, other recordings and drafts relating in any way to the above-referenced items."
In timely but otherwise deficient and identical boilerplate responses, DMS acknowledged receipt of each request but advised, without elaboration, that "[t]he records you seek are in active use, storage, or are otherwise unavailable at this time." DMS further anticipated that "the response records that are not otherwise exempt from disclosure will be available for you on or before February 29, 2012[,]" but advised Ms. Johnson that it would "promptly notify" her if the records became available before then. In addition, the agency noted "[t]he law requires that we protect the privacy and confidentiality of other individuals who may be mentioned in our records. Personal information about others may be redacted from the documents you requested." 1
In her identical appeals, dated January 25, 2012, and February 1, 2012, respectively, Ms. Johnson argued that DMS "failed to cite any specific statutory or regulatory authority to deny or delay the right to inspect the public records" outlined in her written requests. Ms. Johnson acknowledged that a public agency is permitted to delay access "if the 'public record is in active use, in storage or not otherwise available' pursuant to KRS 61.872(5)." However, she correctly observed, the agency "cannot delay the inspection of those records more than three (3) days from receipt of the request to inspect such records unless the agency provides the requesting party with a 'detailed explanation of the cause' for the delay . KRS 61.872(5)." (Original emphasis.) In sum, DMS failed to comply with the Open Records Act in failing to provide a "detailed explanation for the delay in providing access to public records. Merely citing the limitation allowed for" by the Open Records Act, Ms. Johnson argued, "is not sufficient explanation to comply with the law." 2 The mandatory language of KRS 61.872(5) validates her position as do many decisions by this office applying same.
Upon receiving notification of each appeal from this office, Assistant Counsel Jon R. Klein responded on behalf of CHFS/DMS, by identical letters dated January 31, 2012, and February 8, 2012, elaborating upon the agency's position and noting that of the categories listed in each request, nine and eleven categories, respectively, "begin with the word 'Any' or 'All' to describe the documents or papers requested. Generally when such a broadly worded request is made, there is additional time needed to ensure that no records are overlooked." Mr. Klein also noted that DMS responded in a timely manner, noting that the records being sought were "in active use, storage, or are otherwise unavailable at this time," and specifying that February 29, 2012, was the date when the records would be available. In defending the agency's implicit reliance on KRS 61.872(5), Mr. Klein advised:
The Department apologizes for not explaining the additional time to Ms. Johnson's satisfaction. The Department could have let Ms. Johnson know that it is responding to more than twenty similarly voluminous requests regarding other Medicaid providers, several of which were submitted by Ms. Johnson or her firm.
Due to the large increase in the workload involved in responding to an influx of requests, the Cabinet is in the process of hiring additional, temporary staff to handle it. For example, one such request that was recently completed totaled approximately 75,000 pages.
In addition, much of the information requested by Ms. Johnson [is contained in] records of the Department's contractors/ subcontractors, and in many cases, it is taking six to eight weeks or more to obtain the requested documents for review and redaction by the Department so they may be disclosed in response to the request.
Thus, the Department's response that the documents were 'in active use, in storage, or are otherwise unavailable at this time' was substantively correct.' As soon as the documents are retrieved from the Cabinet's contractors/ subcontractors, and redacted of any personal information, they will be provided to Ms. Johnson.
Though not directly relevant in the KRS 61.872(5) analysis, Mr. Klein further observed that in both cases the records being sought "are pertinent to an administrative appeal involving Ms. Johnson's client," and the CHFS attorney "handling the appeal" has advised that he/she "will not oppose a reasonable continuance based on needing more time to review the documents provided by the Department." In failing to either comply with KRS 61.880(1), or expressly invoke KRS 61.872(5) and provide a detailed explanation of the cause for delay in producing any existing documents responsive to Ms. Johnson's request(s), as on past occasions, the CHFS committed a procedural violation of the Open Records Act. Governing precedents, including multiple decisions involving the CHFS, dictate our holding on the facts presented.
As a public agency, DMS is obligated to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the guidelines for responding to requests made thereunder. In relevant part, KRS 61.880(1) provides:
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.
In applying this provision, the Attorney General has consistently observed:
"The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1). Contrary to [the agency's] apparent belief, the Act contemplates records production on the third business day after receipt of the request, and not simply notification that the agency will comply. In support, we note that KRS 61.872(5), the only provision in the Act that authorizes postponement of access to public records beyond three business days, expressly states:
(Emphasis added.) Additionally, we note that in OAG 92-117 . . . this office made abundantly clear that the Act "normally requires the agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request." OAG 92-117, p. 3. Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request." OAG 82-300, p. 3; see also 93-ORD-134 and authorities cited therein. Pursuant to KRS 61.872(5), "any extension of the three day deadline for disclosure must be accompanied by a detailed explanation of the cause for delay, and a written commitment to release the records on the earliest date certain. " 01-ORD-38, p. 5 [Emphasis added.]
01-ORD-140, pp. 3-4.
More recently, this office reaffirmed that any extension of the statutory time frame of three business days "must have a statutorily recognized basis [records in active use, in storage or not otherwise available], must be accompanied by a detailed explanation of the cause for delay, and must be premised on a written commitment to release the records on the earliest date certain. " 08-ORD-021, p. 6 (original emphasis); see 06-ORD-126. Noticeably absent from both of the responses by DMS is any reference to KRS 61.872(5); likewise, its original response is devoid of any explanation of the cause for the delay in providing access. Although DMS did provide a specific date by which all nonexempt records will be produced, its original response lacked the specificity KRS 61.872(5) expressly requires. See 09-ORD-185 (In re: Melissa A. Wilson/Cabinet for Health and Family Services, Department for Medicaid Services)(finding that DMS violated the Open Records Act from a procedural standpoint, and KRS 61.872(5) specifically, in using the same boilerplate form in dispute and failing to provide the detailed explanation required). See also 10-ORD-199.
In prior decisions, the Attorney General has repeatedly admonished the CHFS that "its practice of issuing what appear to be boilerplate responses to records requests in order to secure additional time for final disposition of those requests beyond the statutorily imposed three working day deadline is contrary to both the spirit and the letter of the Open Records Act. " 07-ORD-123, p. 5 (original emphasis). See 07-ORD-030 (acknowledging that "volume of requests directed to CHFS and the nature of the records implicated, in conjunction with the staffing issues CHFS apparently faces, undoubtedly present CHFS with a unique dilemma," but observing in reference to "inherent deficiencies of the standard form letter utilized" by CHFS that the "practice currently employed by CHFS violates both KRS 61.880(1) and KRS 61.872(5)" and the Act "does not contain a provision extending the statutory deadline for CHFS or a waiver of the other procedural requirements"); 08-ORD-014 (noting that 07-ORD-030 "mirrors earlier decisions of this office dating back to at least 1995, all of which were postulated on the proposition that public agencies cannot adopt and implement policies 'which, by design, result in . . . delay[s] in the release of nonexempt public records'")(citation omitted). See also 95-ORD-115; 96-ORD-168; 05-ORD-134; 10-ORD-080.
On appeal, DMS provided a legitimate and detailed explanation for the delay in fully complying with Ms. Johnson's broadly framed requests, 3 which implicate thousands of potentially responsive documents, namely the necessity of acquiring a number of responsive documents from contractors and subcontractors, thereby fulfilling its duty under KRS 61.872(5), albeit belatedly. To avoid future violations of this nature, the agency should be guided in responding to requests by the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9. Given the broad scope of the requests and the number of potentially responsive documents, a reasonable delay was justified in each instance for the agency to ensure that all potentially responsive documents were identified and located, and to acquire, review, and redact statutorily protected information as needed; however, the fact remains that DMS initially failed to comply with KRS 61.872(5). Assuming that DMS provides the records on February 29, or promptly notifies her in writing if the records become available sooner, and provides her with copies of records upon receipt of payment as indicated, nothing more is required.
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 proceeding.
Distributed to:
Elizabeth A. JohnsonEarl GreshamJon R. Klein
Footnotes
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