When Open Records Act doesn’t lead to open records

The Atlanta Journal-Constitution reported back in October that the state’s health agency agreed to let a politically connected insurer offer coverage to 650,000 teachers, state employees, retirees and their beneficiaries next year, even though auditors said the same company had previously overpaid providers in the State Health Benefit Plan nearly $23 million.

The overpayments were the largest of their kind, according to Department of Community Health officials.

DCH Commissioner Clyde Reese agreed to provide the AJC with a copy of the agreement his agency reached with UnitedHealthcare in July, and sat down for an interview to fill in some of the details.Reese_Clyde

The commissioner’s legal department has not been so forthcoming.

It’s been a month and a half since the AJC requested a copy of the taxpayer-funded audit that detailed the billing problems.

Audits typically aren’t hard for agencies to find, especially ones like the DCH audit that was used to find UnitedHealthcare in default of its contract last year and used to reach a settlement with the company in July. More typically, agencies hand them over without much of a fuss.

Georgia’s Open Records Act states that agencies “shall produce all records response within a reasonable amount of time not to exceed three business days of receipt of a request.

“In any instance where records are unavailable within three business days of receipt of the request, and responsive records exist, the agency shall, within such time period, provide the requester with a description of such records and a timeline for when the records will be available for inspection or copying and provide the responsive records or access thereto as soon as practicable.”

The AJC has been getting weekly updates from DCH’s legal department putting off the request to the next week. Below are some of the responses:

 10/16/14

Good afternoon,

The Georgia Department of Community Health (DCH) acknowledges receipt of your Open Records Act Request #33533 which was received by the Office of General Counsel on October 16, 2014.  You have requested “ the Settlement Agreement between DCH and United HealthCare for overpayments provided to physician assistants and the audit report completed by AON regarding the same”.

Your request is being reviewed to preliminarily determine whether any records may exist that would be responsive.  At this time, we are determining whether responsive records exist.  In the event such records do exist, we anticipate providing you with a timeline to respond to your request by Thursday, October 23, 2014 and each week thereafter until such request is fulfilled.

NEXT UP:

10/22/14 Status Update for Open Records Act Request #33533

I am writing to provide a status update regarding your recent Open Records Act request.  Responsive records have been identified and are currently under attorney review.  We anticipate providing a status update by close of business Wednesday, October 29th

 

So DCH “identified” the records as of Oct. 22. When the AJC asked DCH why it would take so long to get an audit, it was told:

“Because this record may contain trade secret or confidential information that impacts entities outside of DCH they have an opportunity to respond before the record can be made public.”

The AJC responded:

“Absent prior designation by those entities, the Open Records Act no longer exempts records that may contain trade secret information.  Specifically, under OCGA 50-18-72(a)(34), any entity that wishes to keep trade secret information confidential must include a specific affidavit designating the records to be trade secrets at the time the records are given to DCH.  If there are no such affidavits included, the records should be provided within three business days per the requirements of the Open Records Act.”

DCH’s legal office responded a little more than a week later with:

11/03/14 Status Update for Open Records Request #33533

Mr. Salzer,

I am writing to provide a status update regarding your recent Open Records Act request.  We are working with program administrators to identify and provide responsive records.  We will provide an update by close of business Monday, November 10.  Should these records become available sooner, they will be reviewed and supplied to you shortly thereafter.

AND

11/12/14 Status Update for Open Records Act Request #33533

I am writing to provide a status update regarding your recent Open Records Act request.  We are still working with program administrators to identify responsive records.  We will provide an update by close of business Wednesday, November 19.  Should these records become available sooner, they will be reviewed and supplied to you shortly thereafter.

 

So, as of Oct. 22, the records had been identified. But in November, the agency was “still working” to “identify responsive records.”

 

When the Nov. 19 update didn’t come, the AJC responded:

From: Salzer, James (CMG-Atlanta) [mailto:James.Salzer@ajc.com]
Sent: Thursday, November 20, 2014 5:32 PM
To: Open Records Request
Subject: RE: 11/12/14 Status Update for Open Records Act Request #33533

Was wondering if there was an update on my request for the audit. I did not receive the update I expected Nov. 19.

James Salzer

The Atlanta Journal-Constitution

 

Status Update for Open Records Act Request #33533

I apologize Mr. Salzer.  I was out of the office yesterday.  Responsive records have been identified and are currently under attorney review.  We will provide you with a status update by Monday, December 1st as all state offices will be closed next Thursday and Friday.

 

As of this morning, still no audit from DCH

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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