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Agencies’ cite exemptions to Open Records Act too frequently Every once in awhile questions to the Hotline come in clumps. Over the last couple of months we have received several questions about agencies which have denied records requests on the basis of exemption (h), the so-called law enforcement exemption. It seemed, therefore, a good topic for this month's column. And then along came the Attorney General's very timely open records decision concerning Lt. Gov. Steve Henry. Very recently, the Attorney General decided that the Cabinet for Health Services violated the Open Records Law when it denied several requests for records of Medicare and Medicaid payments to Lt. Gov. Steve Henry. The Cabinet said it couldn't turn over those records because a federal grand jury was investigating matters related to those payments to Henry, an orthopedic surgeon. Since Federal Rule of Criminal Procedure 6(e) makes grand jury proceedings secret, both exemption (h) and exemption (k) (allowing a state agency to withhold records when federal law prohibits disclosure) justified the denial, according to the Cabinet. Sound familiar? Many of you have made records requests to various state agencies only to be rebuffed because a grand jury was looking into a subject related to the requested records. And if not a grand jury, some law enforcement agency (not the agency to which you made your request) was conducting an investigation. So, your agency hid behind someone else's investigation to shield it from producing public records you're entitled to see. When the Cabinet for Health Services withheld Lt. Gov. Henry's Medicare and Medicaid payment records on this basis, the Attorney General's office ("OAG") put its foot down. There is a three-part test an agency must satisfy to justify denying you records on the basis of exemption (h). First, the agency must establish that it is a law enforcement agency or an agency involved in administrative adjudication. Clearly, the Cabinet for Health Services is neither in this case. Sometimes, according to the OAG, an agency might be able to withhold certain records at the request of an agency with "concurrent jurisdiction" which is conducting its own investigation. The OAG gave the example of the Cabinet for Public Protection and Regulation denying a request for records it had turned over to the Attorney General's office as part of an investigation of one of that Cabinet's own departments. Again, that was not the case here. Second, the agency must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Once again, that was not the case with the Medicare and Medicaid payment records. Those records were generated in the ordinary course of the Cabinet's business. When generated, they had nothing whatsoever to do with any investigative process. This requirement makes sense. An agency should not have license to withhold records simply because it is aware that another agency is investigating the subject of those records. That's true even if the requested records were among records subpoenaed from that agency by a grand jury or other agency investigating a third party. If they were records generated and maintained in the ordinary course of an agency's business, they should be subject to public review. It's good to have the Attorney General reiterate that principle for us. Third, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Of course, this did not apply here since the Cabinet for Health Services was conducting no law enforcement action. The OAG, therefore, did not even need to discuss this element. Likewise, the OAG shot down the Cabinet's reliance on exemption (k) and Federal Rule of Criminal Procedure 6(e). That rule, according to the OAG, is aimed at preventing disclosure of such documents as grand jury subpoenas and immunity orders which may reveal details of grand jury investigations, particularly witnesses and targets. However, Rule 6(e) does not relate generally to documents produced pursuant to a grand jury subpoena, according to the OAG. Some agencies have routinely attempted to withhold records behind the dark and heavy curtain of Rule 6(e). Once again, the Kentucky Attorney General has told those agencies it's not that simple. * * * * * In another development, the OAG is letting agencies know that it doesn't intend to turn a blind eye when they flout the Open Records Law's deadlines or other more technical requirements. How many times have you made a request and not received a response of any kind within the three working day period set out in the law? Or you get a response that says, in essence, "we'll send you documents when we get around to it." True, there has long been a provision in the Open Records Law allowing an agency to take additional time to provide records that are "in active use, in storage or not otherwise available." Many of you have experienced agencies that have apparently * and erroneously * interpreted that to mean that they could put you and your request off indefinitely. Recently, the OAG emphasized that was not so. The OAG addressed Kentucky State University's January 31, 2001 response to a January 24, 2001 records request. KSU, already a little late on its three working day deadline to respond, told the requester: "The university will make every effort to comply with this request by February 6, 2001." KSU didn't and the requester appealed to the Attorney General, giving the OAG an opportunity to address the time limitations imposed on agencies. It is KRS 61.872(5) that allows a public agency to take additional time for producing records in active use, in storage or not otherwise available. That is additional time for the production of those records, though. The agency must still respond to the request within three working days. The response given by KSU, however, was deficient because it failed to comply with the rest of the KRS 61.872(5). The law says an agency seeking more time to produce public records must provide an explanation for the delay. In fact, it must give "a detailed explanation of the cause . . . for further delay and the place, time, and earliest date on which the public record will be available for inspection." Here, KSU failed to provide any explanation, much less a detailed explanation, of the cause for the delay. In addition, it failed to state the place, time, and earliest date certain on which the records would be available. The OAG emphasized that KSU was responsible for giving a date certain, and not merely a promise to try to produce the records on some speculative date. This particular records request to KSU revealed another action the OAG has been taking lately with regard to some requests. In 1994, the General Assembly added a new section to the Open Records Law. In this section, KRS 61.8715, the General Assembly recognized the essential relationship between the intent of the Open Records Law and the intent of the law dealing with public agencies' management of their records. The legislature explicitly stated that public agencies must manage and maintain their records according to those statutes for two reasons: to ensure the efficient administration of government and to provide accountability of government activities. If the records of an agency's activities are so poorly organized that they cannot be retrieved in response to an open records request, then that agency is violating the Open Records Law. The Open Records Law has always made clear that a public agency cannot furnish copies of records that do not exist. However, since the 1994 amendment, it is incumbent upon an agency to at least offer some explanation for the nonexistence of the records. In this case, KSU offered no such explanation in its response. And because some of the records requested and not produced were known to exist, the OAG was concerned that KSU was not adequately maintaining the documentation of its essential transactions. Therefore, the OAG referred the matter to the Department of Libraries and Archives. Perhaps that Department, which is charged with ensuring that state agencies properly maintain their records, can help agencies improve their records maintenance procedures.
If you have comments or questions about this or any other subject
covered by the Hotline, don't hesitate to call.
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