July 31, 1996

In re: Patty Walton/Cabinet for Health Services, Department for Medicaid Services

Open Records Decision

This matter comes to the Attorney General on appeal from the Cabinet for Health Services (formerly Cabinet for Human Resources), Department for Medicaid Services's response to Patty Walton's June 13, 1996, request for copies of various records relating to Medicaid, and a plan to amend Medicaid services in the state. In that response, dated June 20, 1996, Lawrence W. Wetherby III, Office of the Commissioner, advised Ms. Walton:

If you wish to receive this information, please return a completed copy of the attached certified statement. The information described above will be available within 10 days. Upon receipt of our certified statement, you will be notified of the exact cost for the requested information.

Noting that the Open Records Act prescribes a three day agency response time for release of nonexempt public records, Ms. Walton challenges this policy.

In a follow-up letter to this office, Mr. Wetherby elaborated on the Department for Medicaid Services's open records policy. He explained that the Department requires all applicants to submit a certified statement of intended use, indicating whether the applicant's purpose is a commercial or a noncommercial one. After this determination is made, the Department calculates the cost to reproduce the requested records, and notifies the applicant by telephone, or by mail, what the copying costs will be. Upon payment, the records are mailed to the applicant. Mr. Wetherby stated that the Department recently adopted this policy “due to our inability to collect the charges for materials sent to fulfill prior Open Records Requests.” He further stated that Ms. Walton's completed certified statement was returned to the Department on June 27, and an invoice for copying costs sent to her on July 1. As of July 10, 1996, the day Mr. Wetherby drafted this response, Ms. Walton had not paid for the records, nor had the records been sent to her.

The question presented in this open records appeal is whether the Department for Medicaid Services's policy subverts the intent of the Open Records Act short of denial of inspection. Based on the United States District Court's recent opinion in Stephen Amelkin, D.C. v. Commissioner, Department of State Police, Civil Action No. 3:94 CV-360-A (W.D.Ky. June 4, 1996), appeal docketed, No. 96-5942 (6th Cir. July 2, 1996), we find that the Department improperly relied on the 1994 amendments to the Open Records Act in adopting a policy which distinguishes between commercial and noncommercial use of public records, and remand this matter to the Department for a response to Ms. Walton's request which is consistent with the District Court's opinion in Amelkin. We also find that any open records policy which impedes access to nonexempt public records by more than three working days violates provisions of the Act.

In Amelkin, the federal district court for the Western District of Kentucky analyzed the constitutionality of Senate Bill 351, which amended KRS 189.635 to prohibit disclosure of accident reports filed with the Department of State Police except under narrowly defined circumstances, and to certain identified individuals, specifically, insurers and media representatives. The bill was apparently aimed at discouraging direct solicitation of business for pecuniary gain, and had an immediate impact on attorneys and chiropractors who filed suit challenging the amendment. The court concluded that the statute, as amended, is unconstitutional, and, in its judgment, permanently enjoined defendants, including this office, from enforcing “the 1994 amendments to KRS 189.635 and KRS 61.874, et seq., and . . . KRS 438.065.”

To the extent that the Department for Medicaid Services's records policy incorporates the 1994 amendments to the Open Records Act, it is constitutionally infirm. In light of the court's opinion in Amelkin, we believe that the Department cannot require applicants to submit a certified statement of commercial or noncommercial use. KRS 61.874(4)(b). Nor can they assess higher copying charges for records requested for commercial use. KRS 61.874(4)(c) 1. and 2. This appeal is remanded to the Department for a response consistent with the holding in Amelkin.

With respect to the issue of timely access to nonexempt public records, we find that the Department's policy violates provisions of KRS 61.870 to 61.884 by improperly extending the statutory deadline for agency response. As this office has so often noted, 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-125, p. 5. KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records, respond in writing to the requesting party within three working days, and indicate whether the request will be granted.

Nothing in the statute permits an agency to postpone or delay this statutory deadline while it awaits receipt of a certified statement of commercial or noncommercial use. The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not otherwise available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.

In 93-ORD-134, this office addressed the issue of “timely access,” observing:

“Timely access” to public records has been defined as “any time less than three days from agency receipt of the request.” OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 “in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request.” See also, OAG 91-200; OAG 92-35.

. . .

The Open Records Act does not prescribe a reasonable time within which access must be afforded to public records. As we have noted, KRS 61.872(5) normally requires an agency to notify the requester and designate an inspection date not to exceed three days from agency receipt of the request. OAG 84-300. However, when a request is made for voluminous records for a period of several years, such time limitations are virtually impossible to meet.

. . .

We believe that a determination of what is a “reasonable time” for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.

93-ORD-134, p. 11, 12. Consistent with the principles articulated above, public agencies may not adopt records policies which, by design, result in an at least ten day delay in the release of nonexempt public records. Unless KRS 61.872(4) or (5) are properly invoked, public agencies must comply with the procedural requirements of the Open Records Act by responding to written requests, and affording access to nonexempt records, within three working days.

We urge the Cabinet for Health Services, Department for Medicaid Services, to revise its open records policy to insure that future responses are issued, and nonexempt records released, within three working days of receipt of records requests. With respect to the Department's reliance on the 1994 amendments to the Open Records Act, we remand this appeal to the Department with directions that it issue a response to Ms. Walton's request, which is consistent with the district court's holding in Amelkin, within three working days.

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.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Lawrence W. Wetherby III

Office of the Commissioner

Cabinet for Health Services

275 East Main Street

Frankfort KY 40601

Patty Walton

583 Tatumsville Highway

Benton KY 42025