NOT TO BE PUBLISHED
January 12, 1994
In Re: David H. Vance, Esq./Peggy Wallace, Commissioner, Department for Social Services
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by David H. Vance, Esq., from the denial by Peggy Wallace, MSSW, Commissioner of the Department for Social Services, of his client's requests for documents.
In a letter to the records custodian of the Department for Social Services, dated May 10, 1993, Mr. Vance, on behalf of his client, requested access to four categories of documents relating to three investigations.
Ms. Wallace, in a letter dated May 13, 1993, denied his requests and cited KRS 61.878(1)(g) in support of her decision. That provision in part exempts from public inspection the records of law enforcement agencies or agencies involved in an administrative adjudication which were compiled in the process of detecting and investigating statutory or regulatory violations.
Ms. Wallace's letter also contained the following paragraph:
The Attorney General's office has informed this department that they are conducting an investigation of the Vanceburg Health Care Center. That office has requested that we withhold the documents in question pending completion of the investigation.
Accordingly, your request is being denied pursuant to KRS 61.878(1)(g). (Also see OAG 90-67.)
In his letter of appeal to this office Mr. Vance states that it is difficult to understand how the Department for Social Services can deny a request for records involving an investigation by predicating the denial on a separate investigation by the Attorney General's Office. He maintains that the Department for Social Services cannot assert the Attorney General's request for denial as a basis for its own denial unless a joint investigation is involved.
It is the opinion of the Attorney General that Ms. Wallace acted in accordance with the provisions of the Open Records Act in denying Mr. Vance's request for access to documents. The portion of the statute relied upon by Ms. Wallace is KRS 61.878(1)(g) which provides as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.
* * *
(g) Records of law enforcement agencies or agencies involved in administrative adjudication 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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
The Medicaid Fraud and Abuse Control Division of the Attorney General's Office is directed to investigate instances where fraud is committed against the Medicaid Program which is implemented by the Cabinet for Human Resources. There is, therefore, a connection or association between the Medicaid Fraud and Abuse Control Division of the Attorney General's Office and the Department of Social Services of the Cabinet for Human Resources.
In OAG 83-39 and OAG 90-67, copies of which are enclosed, this office recognized that where there is concurrent jurisdiction between two agencies, and they both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in an investigation of a matter relative to those records. At page three of OAG 83-39 this office said in part:
The fact that state authorities have decided not to prosecute does not mean that their investigative records must now be made available for public inspection if the joint investigation is still open and there is the possibility of federal prosecution. Since the premature release of the state's investigative file at this time might interfere with the prosecution by the federal authorities we believe that the exceptions provided by KRS 61.878(1)(f) [now codified as KRS 61.878(1)(g)] applies and that you acted properly in denying inspection of the records.
The Department for Social Services was asked by the Medicaid Fraud and Abuse Control Division to withhold the release of documents pending the latter's completion of an investigation involving matters mentioned and discussed in those documents. While the investigation has since been completed, it was an active and ongoing investigation at the time Mr. Vance's requests for documents were made to the Department for Social Services. In our opinion, Ms. Wallace acted in conformity with the terms and provisions of the Open Records Act in denying the requests for access to the documents in question.
Mr. Vance may challenge 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 filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
David H. Vance, Esq.
113 West Main Street
P.O. Drawer 1036
Frankfort, Kentucky 40602
Peggy Wallace, MSSW
Department for Social Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621