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Newspaper reveals Medicaid records through open records claim

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  1. Freedom of Information

    NMU         KENTUCKY         Freedom of Information         May 11, 2001    

Newspaper reveals Medicaid records through open records claim

  • State records turned over to a federal grand jury are not necessarily exempt from disclosure under the Kentucky open records act, according to a binding decision by the state’s attorney general.

In response to a directive from the Kentucky attorney general, the Cabinet for Health Services turned over to a newspaper its records of Medicaid payments to Lt. Gov. Steve Henry, which the agency believed may be subpoenaed by a federal grand jury looking into possible Medicare fraud.

The newspaper sought the documents under state open records law because prosecutors have made Henry, who is also a physician, the subject of a federal grand jury investigation of possible health care fraud.

Attorney General Ben Chandler issued an opinion on April 19 about one month after the health services department had denied a Lexington Herald-Leader reporter’s request for the records. In March, reporter Peter Baniak asked the Cabinet for Health Services for records it had of Medicaid payments made to Henry. Baniak also requested copies of any federal subpoenas or other open records requests made for the same Medicaid payment records held by the agency. After the state agency refused to release these records, the newspaper appealed to the attorney general. Unlike most states, Kentucky regards a decision on open records by the Kentucky attorney general as binding on the parties, and it can be appealed to a circuit court.

The agency claimed that the records were not available for public inspection because they qualified for the state law enforcement exemption and for protections of grand jury records under federal law.

Chandler wrote that the records were clearly not protected from disclosure under the exemption for law enforcement records because the agency is not a “law enforcement agency,” the records were not “compiled in the process of detecting and investigation statutory or regulatory violations,” and the agency did not “provide a sufficient description of the harm” it would suffer if the records were disclosed.

Although Chandler acknowledged that the Kentucky open records laws close records that must be confidential under federal law, he said the subject matter of the present request did not fall under a federal rule of criminal procedure that keeps private the records of a grand jury proceeding.

Chandler pointed out that the federal rule, by its terms, only applies to “grand jurors, interpreters, stenographers, operators of recording devices, typists who transcribe recorded testimony, attorneys for the government, and persons assisting attorneys for the government” and to documents such as “grand jury subpoenas and immunity orders,” not to documents produced in response to subpoenas.

Furthermore, Chandler found two federal cases that have determined that evidence submitted to a grand jury “does not become secret merely because it has been presented to a grand jury, if it was created for purposes other than the grand jury investigation and its disclosure does not reveal matters occurring before the grand jury.” Noting that the agencies’ documents were not even formally subpoenaed, he found that the agency and its records were not covered by this federal rule.

With the records, the newspaper determined that since 1994, Lt. Gov. Henry and the practices for which he worked had received $101,314 from the government for medical procedures. The paper also reported that Henry’s attorney is sure that the federal investigators will find “billing discrepancies,” but that these discrepancies were “innocent mistakes.”

(Kentucky Open Records Decision 01-ORD-67; Media Counsel David Royse; Stoll, Keenon & Park, Lexington, Ky.) CC

© 2001 The Reporters Committee for Freedom of the Press

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