NOT TO BE PUBLISHED
June 14, 1993
IN RE: Joanne B. Erde/Cabinet for Human Resources Department
for Medicaid Services
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Cabinet for Human Resources Department for Medicaid Services in responding to Ms. Joanne B. Erde's April 26, 1993, request to inspect certain documents in the Department's custody. Those records are identified as:
1. All "assurances" made since the start of the Medicaid Program in the State of Kentucky by the Human Resources Cabinet ("Cabinet") to the Secretary of the Department of Health and Human Services ("HRS") pursuant to 42 U.S.C.A. 1396a(a)(13)(A) that the Cabinet's Medicaid rates are reasonable and adequate to cover the costs incurred by economically and efficiently operated facilities that provide care in compliance with state and federal standards.
2. The annual "findings" made by the Cabinet as support for the "assurances" made to the Secretary of the Department of Health and Human Services ("HRS") pursuant to 42 U.S.C.A. 1396a(a)(13)(A) that the Cabinet's Medicaid rates are reasonable and adequate to cover the costs incurred by economically and efficiently operated
facilities that provide care in compliance with state and federal standards.
3. Any and all other documents that relate to, support or further clarify the above requested findings and assurances.
4. All documents related to the Cabinet's determination of what are the costs of an efficiently and economically operated hospital.
5. A listing of all hospitals within and without the State of Kentucky that provide inpatient Medicaid services to Kentucky residents and the number of Medicaid inpatient days of care each hospital provided in each of the last three years.
6. The PC-based programs used to calculate the Medicaid rate for all rate semesters beginning on or after January 1, 1992.
7. All documents evidencing the nexus between the method of calculating the amount paid to out-of-state hospitals and the costs of operating an efficient and economical hospital.
8. All documents evidencing the nexus between the amount that will be paid under the rate freeze beginning April 1, 1993 and the costs of operating an efficient and economical hospital.
On behalf of the Department for Medicaid Services, Mr. Timothy A. Sturgill, Assistant Counsel, denied Ms. Erde's request in a letter dated April 29, 1993. Relying on KRS 61.872(6), he advised her that the Department "estimates that it would require in excess of one hundred staff hours to compile the information . . . requested." It was his position that compliance with the request would place an unreasonable burden on the Department.
In her letter of appeal to this Office, Ms. Erde argues that Mr. Sturgill has not complied with the requirements of KRS 61.872(6) insofar as he failed to sustain the Department's refusal by clear and convincing evidence. In her view, "[a] bald statement that the request would take 100 hours
without any further support or explanation as to why, cannot satisfy this requirement." Ms. Erde finds it "inconceivable" that compliance with her request would require one hundred staff hours since all "assurances" and "findings" that are compiled by a state and submitted to the federal government must be retained under federal law, and should be filed in such a way as to permit immediate access. This, she argues, would dispose of items 1, 2, 3, 4 and 7 of her request.
Ms. Erde is equally dubious about Mr. Sturgill's assertion that the Department cannot immediately access a computer listing of all out-of-state hospitals that provide services to Kentucky Medicaid recipients. Further, Ms. Erde argues, "duplicating [the] PC based programs cannot possible [sic] take more than a few hours work." She 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 sustained its burden of proving, by clear and convincing evidence, that compliance with Ms. Erde's request would place an unreasonable burden on the Department. For the reasons set forth below, we conclude that the Department failed to sustain its burden of proof when it denied Ms. Erde's request for "assurances" and "findings," but that because Ms. Erde did not comply with KRS 61.970(1) in requesting access to its computer database, the Department is not required to afford her access to information contained in the database at this time.
KRS 61.872(6) provides:
If [an application for inspection] places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records." KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this
condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection . . . .
Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.
Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58 we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). The agency explained that the requested documents might be located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
Mr. Sturgill does not describe with any degree of specificity the volume of records implicated by Ms. Erde's request, the difficulty in accessing the records, or the
problems associated with redacting any exempt materials from those records. His denial consists of little more than an invocation of the statute, and a vague reference to the number of staff hours which might be required to comply with the request. We therefore conclude that the Department failed to sustain its burden of proving, by clear and convincing evidence, that the application places an unreasonable burden on it.
Turning to the issue of Mr. Sturgill's denial of Ms. Erde's request for records stored on a database, and governed by the Public Access to Governmental Databases Act, KRS 61.960, et seq., we find that the Department is not presently in violation of the Open Records Act for its refusal to release those records. In 93-ORD-14, a copy of which is attached, we held that as a precondition to the release of records stored on a database, a requester must state the purpose for which it will be used. It is instructive to quote at length:
Although the statute does not, by its express terms, require a requester to disclose his purpose if it is a noncommercial one, we believe that such a requirement is implicit. It cannot be assumed that the omission of a statement of purpose necessarily imports a noncommercial purpose. As this Office has previously recognized, in determining the propriety of release of a database, the stated purpose is directly relevant. OAG 90-101; OAG 91-4; OAG 91-116. While an agency must release public records stored on a database, subject to the exceptions codified at KRS 61.878(1)(a) - (k), if requested for a noncommercial purpose, it may, in its discretion, withhold the same records if requested for a commercial purpose. In addition, a requester's purpose has a direct bearing on the fee that can be imposed for copies of the database. KRS 61.970(2); KRS 61.975(3). In the absence of a stated purpose, it is impossible for the custodian, this Office, and the courts to determine the appropriate response to a request. Unlike the Open Records Act, in which the requesting party's purpose is irrelevant, the Public Access to Governmental Databases Act makes the purpose for which the data is
to be used a critical factor in determining permissible access to the records.
While we do not believe that a requester, whose purpose in seeking access to a governmental database is noncommercial, is required to submit a certified statement of purpose, pursuant to KRS 61.970(1), he must, in our view, provide a general statement of the intended use of the database. For example, he might state, "This data will be used in conducting statistical analysis for information purposes." We do not view this as a particular hardship to the requester, and it is necessary to the agency's determination whether to honor the request, as well as this Office's determination in the event of an appeal.
93-ORD-14, at p. 2.
Ms. Erde may wish to resubmit her request for records stored on database to the Department for Medicaid Services. We urge her to review the Public Access to Governmental Databases Act, a copy of which is attached, to insure that her request conforms to the law.
The Department for Medicaid Services is directed to release the records identified in items 1, 2, 3, 4, 7, and 8 of Ms. Erde's April 23, 1993, request. It may continue to withhold records stored on its database until such time as Ms. Erde complies with KRS 61.970(1).
Ms. Erde and the Department for Medicaid Services may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Tim Sturgill
Cabinet for Human Resources
Frankfort, KY 40621-0001
Hon. Joanne Erde
Steel, Hector & Davis
400 Southeast Financial Center
Miami, FL 33131-2398