Opinion
Opinion By: Jack Conway, Attorney General; Laura S. Crittenden, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Finance and Administration Cabinet ("Cabinet" or "FAC") violated the Kentucky Open Records Act ("the Act") in partially denying Janet Craig's December 5, 2013 request for six categories of public records covering state fiscal years 2009 and 2010. Specifically, the question is whether the Cabinet violated the Act by denying items 2, 4, and 5 of Ms. Craig's request. These three items seek the following records:
2. . . . all documents related to any communication from or to Finance, the Governor's Office, the Cabinet for Health and Family Services ("CHFS"), the Department for Medicaid Services ("DMS"), the Office of the State Budget Director, Legislative Research Commission ["LRC"] Budget Office, and/or the Committee on Appropriations and Revenue concerning the State/Executive Branch Budget Bill for Medicaid benefits and Medicaid administration, including any supporting exhibits.
4. . . . all documents related to any communication between Finance and any party, including but not limited to the Governor's Office, CHFS, DMS, the Office of the State Budget Director, [LRC] Budget Office, and/or the Committee on Appropriations and Revenue, concerning any budget surplus or deficit for the Medicaid program.
5. . . . all documents related to any communications from or to Finance, CHFS, DMS, the Office of the State Budget Director, [LRC] Budget Office, and/or the Committee on Appropriations and Revenue concerning the total amount of all expenditures for costs associated with the Medicaid program, including but not limited to payments by the Commonwealth to providers (including supplemental payments) and managed care organizations.
In a December 17, 2013 letter to Ms. Craig, the Cabinet advised that records responsive to her request were "in active use, storage or not otherwise available." The Cabinet further advised that "FAC staff will retrieve said records, review them and redact or withhold any documents that are exempt pursuant to KRS 61.878." Citing KRS 61.872(5), the Cabinet noted that since Ms. Craig's request was "extremely broad," gathering relevant records, reviewing them, and finally responding to the request would take longer than is typical. 1
The Cabinet then sent a supplemental response indicating that it anticipated substantively responding to Ms. Craig's request on or before January 28, 2014. The Cabinet explained that in submitting this estimated time, it "took into consideration the broad nature of parts of her request" and the "possible time needed to review records to determine if any exceptions should be asserted." See KRS 61.872(5). The agency also noted "that it might be necessary to consult the subject matter expertise of CHFS in locating records responsive to the request." 2
Ms. Craig initiated the instant appeal on January 7, 2014. The next day, the Cabinet submitted its final response to Ms. Craig. In its final response, the Cabinet provided records responsive to items 1, 3, and 6 of Ms. Craig's request. As noted previously, however, the Cabinet denied items 2, 4, and 5 of the request. In support of the partial denial, the Cabinet cited KRS 61.872(6), stating that because the requests in items 2, 4, and 5 were so broad and expansive, producing responsive records would place an unreasonable burden on the relevant agencies.
As a preliminary matter, we hold that the Finance and Administration Cabinet failed to comply with the Open Records Act in its initial and supplemental responses to Ms. Craig. Although the Cabinet provided the date when it expected responsive records to be available, the Cabinet failed to sufficiently explain the cause for the delay in production. See KRS 61.872(5). Merely quoting the language of KRS 61.872(5), generally indicating that staff will review the records and redact or withhold any documents that are exempt from disclosure under the Act, and advising that the substantive response will be delayed due to the breadth of the request does not constitute a "detailed explanation" of the cause for delay under existing statutory and legal authority. See KRS 61.872(5); 08-ORD-013; 11-ORD-135. However, because the Cabinet ultimately did produce records responsive to items 1, 3, and 6 of Ms. Craig's request, and because we hold that the Cabinet did not violate the Act by denying items 2, 4, and 5, this initial error was harmless.
Under KRS 61.880(1), "[a]n agency response denying, in whole or 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." Here, the FAC cited the exception contained in KRS 61.872(6) in support of its decision to deny items 2, 4, and 5 of Ms. Craig's open records request. The cited exception provides that an official custodian may refuse to permit inspection of public records or to mail copies of same to an applicant where producing the records places an "unreasonable burden" on the custodian or the involved public agency. KRS 61.872(6). A refusal to produce records premised on this provision of the Open Records Act must be "sustained by clear and convincing evidence. " 3 Id.
On appeal, the Cabinet reiterates the position, originally asserted in its January 8, 2014 final response to Ms. Craig, that producing the three categories of records at issue imposes an "unreasonable burden" on the Cabinet and other responding agencies due to the "scope and overbreadth" of the requests. The Cabinet emphasizes that all three items seek all documents related to any communication to or from a number of state agencies. The Cabinet further emphasizes that the request necessarily includes communication-related documents to or from any agents, representatives, and employees of the Cabinet, the Governor's Office, DMS, and CHFS. According to the Cabinet, the number of employees in these agencies, "in addition to individuals who have acted in either an agent or representative capacity, renders it impossible to respond without subjecting the agency to unreasonable burdens."
The Cabinet also explains that items 2, 4, and 5 "encompass[] several agencies totaling approximately 10,000 employees as of February of 2014." Additionally, the referenced topics "are not of a type regularly and routinely known to be allocated to specific individuals known to the [Cabinet], which would allow the Cabinet to simply request those individuals provide the cited records for release." The Cabinet observes that each item concerns the Medicaid program, which is primarily administered by CHFS, but "[n]o search terms, specific limiting dates, or specific employee names were submitted by [Ms. Craig] to help facilitate a reasonable search using search term software for any of the three agencies." According to the Cabinet, "[e]ach of these agencies has limited staff to dedicate to conduct such a massive search." The Cabinet represents that performing a manual search "on the number of employees at issue, even excluding any non-state-employed agents or representatives not included in the totals above, would constitute an unreasonable burden on state resources."
We find that the Cabinet has met its burden of proving the applicability of the KRS 61.872(6) exception by clear and convincing evidence. 4 Ms. Craig's arguments to the contrary are unavailing. Again, items 2, 4, and 5 of Ms. Craig's open records request seek, for fiscal years 2009 and 2010, all documents related to any communication from or to seven state agencies, offices, and committees concerning the State/Executive Branch Budget Bill for Medicaid benefits and Medicaid administration; all documents related to any communication between the Cabinet and any party concerning any budget surplus or deficit for the Medicaid program; and all documents related to any communications from or to six state agencies, offices, and committees concerning the total amount of all expenditures for costs associated with the Medicaid program. Based on the representations of the Cabinet regarding the number of agencies and employees that could have documents responsive to Ms. Craig's request, and further based on the Cabinet's representations regarding the limited resources available to search for responsive documents, we determine that items 2, 4, and 5 place an "unreasonable burden" on the Cabinet and other agencies, offices, and committees identified in the request. As noted by the Cabinet, Ms. Craig did not propose specific search terms or employee names that would narrow the scope of the search and resultant production.
In reaching this decision, we are cognizant of the fact that Kentucky Medicaid is one of the largest line items of the Kentucky budget. In Fiscal Year 2014, the General Assembly appropriated approximately $ 1.510 billion dollars to Kentucky Medicaid. Additionally, the Kentucky Medicaid budget consists of two appropriation units, Administration and Benefits. In turn, two major programs operate within each of those units--the Kentucky Medical Assistance Program and the Kentucky Children's Health Insurance Program. On top of the state appropriation, there is an additional federal appropriation of approximately $ 5.225 billion dollars. This amount, combined with several other smaller revenue sources, helps establish Kentucky Medicaid at a funding level of approximately $ 7.203 billion for Fiscal Year 2014. Simply put, Kentucky Medicaid is a very large and complex state program with administration and oversight provided by a multitude of agencies. Only some of these agencies are named in Ms. Craig's initial request, though, by requesting all communications from and to the named agencies, Ms. Craig's request is broad enough to include communications involving all of these agencies.
We note that the Cabinet advises that neither its original response nor its appeal response should be "construed to indicate an unwillingness to work with [Ms. Craig] and respond to a revised request for records." Indeed, the Cabinet states that it remains "willing to provide records in response to a future request for more specifically identified communications." In their current form, however, items 2, 4, and 5 of Ms. Craig's request for records clearly impose an unreasonable burden on the responding agencies. The Cabinet thus did not violate the Open Records Act by partially denying the request under the authority of KRS 61.872(6).
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:
Janet CraigCary B. BishopGeri E. Grigsby
Footnotes
Footnotes
1 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
2 Ms. Craig sent identical or nearly identical requests to the Cabinet, CHFS, and the Governor's Office, each of which separately requested additional time in which to respond; the Cabinet issued the final substantive response on behalf of all three agencies.
3 Further, and more generally, on appeal the burden of proof rests with the agency. KRS 61.880(2)(c).
4 In light of the additional information provided by the Finance and Administration Cabinet on appeal, we do not reach the issue of whether the January 8, 2014 final response letter alone met this burden.