Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Illya Adams-Jones ("Illya") appeals the Cabinet for Health and Family Services' denial of Jonnie Adams-Jones' ("Jonnie") April 29, 2015, request for "releasable information" relating to Jonnie and her mother, Jean Jones. The Cabinet's Office of Inspector General denied Jonnie's request in a timely written response. Citing KRS 61.878(1)(h), the Office of Inspector General ("OIG") 1 quoted the first sentence of the exception, advising her that "the records are not currently available" and that her "request for information is pending at this time." Jonnie's spouse, Cabinet employee Illya Adams-Jones, subsequently initiated this appeal.
In its supplemental response to Illya's appeal, the Cabinet explained that although the OIG had substantiated fraudulent Medicaid billing by Illya at the time of Jonnie's open records request, "the Cabinet's Office of Human Resource Management was completing its own administrative adjudication" at the request of Illya's employer within the Cabinet, the Department of Community Based Services. DCBS requested that the Office of Human Resource Management "consider disciplining [Illya] for her involvement in Medicaid Fraud." The Cabinet observed:
From May 5, 2015, through the date of this letter, the Office of Human Resource Management has been determining the appropriate level of discipline (if any) to impose on [Illya]. Therefore, disclosing the OIG's documentation would harm the Cabinet by revealing information to be used in an administrative adjudication by the Office of Human Resource Management. See KRS 61.878(1)(h).
Additionally, the Cabinet explained that on April 30, 2015, the Attorney General's Medicaid Fraud and Abuse Control Division accepted the OIG's Adams-Jones investigation for its own criminal investigation, and that the division "has determined that producing any records at this time could be detrimental to a prospective law enforcement action. "
On June 16, 2015, this office requested additional documentation from the Cabinet to substantiate its position, including copies of the disputed records, pursuant to KRS 61.880(2)(c). We noted that in
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Kentucky Supreme Court determined that KRS 61.878(1)(h):
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.
406 S.W.3d at 851. We afforded the Cabinet "the opportunity to substantiate the OIG's and/or the Attorney General's Medicaid Fraud Division's, denial of Ms. Adams-Jones' request by submission of additional information aimed at articulating a factual basis for the invocation of KRS 61.878(1)(h), based on the requested records' content, and a showing that release of the records poses a concrete risk of harm in the prospective action." We suggested that the Cabinet consult with the Medicaid Fraud Division "for purposes of demonstrating a concrete risk of harm in its criminal investigation." As noted, we also requested a copy of the disputed records for in camera inspection.
The Cabinet responded to our request by identifying, in summary form, the requested records, reasserting the propriety of the records' nondisclosure under KRS 61.878(1)(h), and invoking, for the first time, KRS 17.150(2). Citing City of Ft. Thomas, 406 S.W.3d at 850, the Cabinet attempted to demonstrate how the records withheld satisfied the three part test the court established in that case. With respect to each part of the test, quoted below in non-italics, the Cabinet argued, in italics:
(1) "that the records to be withheld were compiled for law enforcement purposes" - the OIG "investigated whether either Illya or Jonnie fraudulently billed Medicaid's CDO 2 program for services allegedly provided to CDO consumer Jean Jones";
(2) "that a law enforcement action is prospective" -- the Medicaid Fraud Division, " a law enforcement agency within the Office of the Attorney General, has confirmed that a law enforcement action is pending, as it is considering criminal prosecution against Illya and Jonnie" ; and
(3) "that premature release of the records would harm the agency in some articulable way" -- with respect to the Attorney General's law enforcement action, " the Attorney General plans to conduct additional witness interviews and needs to ensure that the witnesses do not know the entire nature of the Attorney General's investigation...allow[ing] investigators to ask unexpected questions and receive truthful, uncoached, and unbiased responses; with respect to pending administrative action against Illya by the Cabinet's Office of Human Resource Management, that office "was still pursuing its own investigation after having received [and reviewed] the OIG's report" at the time of Jonnie's request.
The Cabinet indicated that it has since "issued an 'Intent to Dismiss' letter to Illya but has not held a pre-termination hearing or taken final action regarding discipline." Further investigation, including document review and witness interviews, the Cabinet stated, "may occur." Because its administrative adjudication is ongoing, the Cabinet concluded, "disclosure of the disputed documents could negatively impact [the Office of Human Resource Management's] ability to obtain truthful and unbiased witness statements that are necessary to its determination of whether to pursue disciplinary action. "
On July 23, 2015, the Attorney General's Medicaid Fraud and Abuse Control Division "with[drew] the request for the exemption" cited by the Cabinet on its behalf, explaining that it had "completed the portion of the investigation that had the potential to be adversely impacted by the release of the records." We therefore focus on the propriety of the Cabinet's invocation of KRS 61.878(1)(h) 3 to support its denial of Jonnie's request for records relating to her mother and her. KRS 61.878(1)(h) requires the Cabinet to demonstrate that, "because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action . . .[,] something more than a hypothetical or speculative concern." 406 S.W.3d at 851. The Cabinet did not make an adequate showing of harm based on the responsive records' content.
As noted above, KRS 61.878(1)(h) authorizes law enforcement agencies or agencies involved in administrative adjudication to withhold records:
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 Cabinet observes that in
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d at 850, the Kentucky Supreme Court established a three part test for assessing the propriety of a public agency's invocation of KRS 61.878(1)(h):
To invoke the law enforcement [or administrative adjudication] under the statute's "prospective action" prong, . . . the agency must show (1) that the records withheld were compiled for law enforcement purposes; (2) that a law enforcement [or administrative adjudication] is prospective; and (3) that premature release of the records would harm the agency in some articulable way.
Here, as in City of Ft. Thomas , there is no dispute that records compiled by the Cabinet in its investigation of Jonnie Adams-Jones were compiled for law enforcement 4 and administrative adjudicatory purposes and that an administrative adjudication involving Cabinet employee, Illya, for her role in the matter investigated, is prospective. Unlike City of Ft. Thomas , the Cabinet did not "conflate the second and third elements and have us presume 'harm' from any disclosure" when an administrative adjudication is a possibility. 406 S.W.3d at 850. Given the opportunity to substantiate the denial of Jonnie's request, based on KRS 61.878(1)(h) and City of Ft. Thomas , 5 the Cabinet asserted that its Office of Human Resource Management is "still pursuing its own investigation after having received the OIG's report" and that further investigation "may occur." For this reason, the Cabinet maintained, "disclosure of the disputed documents could negatively impact [the Office of Human Resource Management's] ability to obtain truthful and unbiased witness statements that are necessary to its determination of whether to pursue disciplinary action. "
Because the Cabinet has issued an "Intent to Dismiss" letter to Illya, the determination whether to pursue disciplinary action has been made and the validity of the asserted basis for withholding the records is questionable. Assuming, for the sake of argument, that further investigation "may occur," and that the asserted basis for withholding records, namely, the "ability to obtain truthful and unbiased witness statements" satisfies the requirement of a "concrete risk," rather than "a hypothetical or speculative concern," recognized by the Court in City of Ft. Thomas, 406 S.W.3d at 851, we believe that the Cabinet failed to meet its statutory burden of proof 6 that it was justified in withholding all responsive records.
In City of Ft. Thomas, 406 S.W.3d at 851, the Supreme Court clarified its holding that the agency must establish that "because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action." The Court opined:
Our holding does not mean that the agency is obliged in all cases to justify non-disclosure on a line-by-line or document-by-document basis. At least with respect to voluminous ORA requests, . . . it is enough if the agency identifies the particular kinds of records it holds and explains how the release of each assertedly exempt category would harm the agency in a prospective enforcement action. Cf. Lesher, 945 N.Y.S.2d 214, 968 N.E.2d at 457 ("The agency must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure of these categories of documents. Put slightly differently, the agency must still fulfill its burden under Public Officers Law § 89(4)(b) to articulate a factual basis for the exemption. "). Our holding does mean, of course, that even if the agency adopts this generic approach it must itself identify and review its responsive records, release any that are not exempt, and assign the remainder to meaningful categories. A category is meaningful if it "allows the court to trace a rational link between the nature of the document and the alleged likely [harm to the agency]." Bevis v. Department of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986).
406 S.W.3d at 851; accord
Hopkinsville New Erra, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 88 (Ky. 2013) (citing KRS 61.878(4) 7 and approving a categorical redaction policy based on commonalities such as recurring classes of information implicating common protected interests and exemptions) .
Here, as in City of Ft. Thomas , "[i]t appears that the [Cabinet] has not yet made any attempt to identify non-exempt records in its files . . ., and it assuredly has not made any attempt to identify categories of records the particular nature of which renders them exempt. " 406 S.W.3d at 852. Because KRS 61.878(1)(h) "cannot be invoked without at least the minimum degree of factual justification," we find that the Cabinet erred when it applied a blanket exemption to all responsive records. Id . The Cabinet identified several categories of records contained in its "report and attachment includ[ing] (but not limited to) . . .: an investigative chronology; witness interview summaries, written statements, and recordings in referral documentation; Medicaid Consumer Directed Option documentation including timesheets, billing records, and contracts; surveillance documentation; and investigative conclusions," but treated all of them as if they represented a threat to the collection of truthful witness statements. Some of these records, such as timesheets, billing records, and contracts, were submitted to the Cabinet by Jonnie or entered into with the Cabinet by Jonnie. Since she is aware of their context, it's difficult to imagine a set of facts that would justify its argument that disclosure would impede administrative adjudication of the disciplinary action involving her spouse, Illya. Consistent with KRS 61.878(4) and City of Ft. Thomas v. Cincinnati Enquirer , we find that the Cabinet failed to meet its burden of proving "that the decision to withhold responsive records was justified under the Act." 406 S.W.3d at 848.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 194A.030 states that the Office of Inspector General conducts audits and investigations relating to fraud and abuse of "any program" by a client or vendor and "special investigations requested by the secretary, commissioners, or office heads of the Cabinet into matters related to the Cabinet or its programs." The OIG is also responsible for "notification and forwarding of any information relevant to possible criminal violations to the appropriate prosecuting authority."
2 Consumer Directed Option.
3 KRS 17.150(2) expressly applies to "intelligence and investigative reports maintained by criminal justice agencies." The only criminal justice agency the Cabinet identifies in its response to Illya's appeal is the Attorney General's Medicaid Fraud and Abuse Control Division. KRS 17.150(2) is, therefore, not considered in our analysis.
4 The Cabinet does not advance the argument that it is currently involved in a law enforcement action, the criminal matter having been referred to the Attorney General's Medicaid Fraud and Abuse Control Division for investigation and/or prosecution. That Division now asserts that the purpose for which "the exemption" was invoked by the Cabinet, on its behalf, no longer exists.
5 The Cabinet was afforded a third opportunity to substantiate its denial of Jonnie's request by this office under authority of KRS 61.880(2)(c).
6 KRS 61.880(2)(c) assigns the burden of proof to the public agency in an open records appeal submitted to the Office of the Attorney General. "The agency . . .bears the burden of proof, [citation omitted] and what it must prove is that the decision to withhold responsive records was justified under the Act." 406 S.W.3d at 848.
7 KRS 61.878(4) states: If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.