NOT TO BE PUBLISHED 

94-ORD-151

December 15, 1994

In Re: Charles C. Simms, III, Esq./Cabinet for Human Resources

OPEN RECORDS DECISION

This matter comes to the Attorney General as an appeal by Charles C. Simms, III, Esq., from the denial by the Cabinet for Human Resources of requests for documents by Mr. Simms' associate, William D. Kirkland, Esq.

In a letter to the Cabinet for Human Resources, Department for Medicaid Services, dated September 2, 1994, Mr. Kirkland made the following request:

John H. Walker, Esq., Assistant Counsel, Cabinet for Human Resources, replied to Mr. Kirkland in a letter dated September 9, 1994, and advised him in part as follows:

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accordance with KRS 61.878(1)(h) in that premature release of this data would compromise that investigation. You may wish to request access to this report through direct communication with the Medicaid Fraud Control and Abuse Unit of the Office of the Attorney General.

In his letter of appeal to this office Mr. Simms stated that KRS 61.878(1)(h) does not apply as the document in question is not a preliminary draft, note, or correspondence. He further said that if the Cabinet for Human Resources meant to cite KRS 61.878(1)(g), that exception to public inspection also does not apply, apparently because the Cabinet is not using the document in any law enforcement proceeding of its own undertaking. "Although the Office of Attorney General obtained the print-out to conduct an investigation, the Cabinet for Human Resources had not compiled the records for such a purpose."

The Open Records Act was amended by the General Assembly in 1994, effective July 15, 1994, and the Cabinet for Human Resources relied on KRS 61.878(1)(h), formerly codified as 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.

* * *

(h) 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

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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 Cabinet for Human Resources.

In OAG 83-39, OAG 90-67, and 94-ORD-7, 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

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that you acted properly in denying inspection of the records.

The Cabinet for Human Resources was advised by the Attorney General's Office that the specific documents requested were being used in an investigation by the Medicaid Fraud and Abuse Control Division of the Attorney General's Office. Since at the time of the request the documents in question involved matters being actively investigated by another unit of government, the Cabinet for Human Resources properly invoked KRS 61.878(1)(h) to deny the request for access to those particular documents.

Mr. Simms may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within thirty days from the date of this decision. The Attorney General shall be notified of any actions filed in the circuit court pursuant to KRS 61.880(3) but that statute also provides that the Attorney General shall not be named as a party in any actions involving the Open Records Act.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

sjj/1233

Copies of this decision

have been mailed to:

Charles C. Simms, III, Esq.

300 State National Bank Building

P.O. Box 1100

Frankfort, KY 40602-1100

John H. Walker, Esq.

Assistant Counsel

Cabinet for Human Resources

Office of the Counsel

275 East Main Street - 4 West

Frankfort, KY 40621-0001