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AGO Opinion 97033

Definition of Public Records Under the Public Records Statutes, Neb. Rev. Stat. §§ 84-712 through 84-712.09 (1994, Cum. Supp. 1996), and the Exception to Disclosure for Proprietary or Commercial Information Contained in § 84-712.05(3)
Opinion 97033

DATE: June 4, 1997

SUBJECT: Definition of Public Records Under the Public Records Statutes, Neb. Rev. Stat. §§ 84-712 through 84-712.09 (1994, Cum. Supp. 1996), and the Exception to Disclosure for Proprietary or Commercial Information Contained in § 84-712.05(3)

REQUESTED BY: Jeff Elliott, Director

Department of Health and Human Services

Finance and Support

WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




In 1995, the Nebraska Department of Social Services contracted

with Exclusive Healthcare, Inc., a health maintenance organization

or HMO, to provide certain health care services in return for

periodic fixed payments by the State. That contract requires

Exclusive Healthcare, Inc. (the "HMO") to provide the Department

with access to certain data, reports and information regarding

various aspects of its operation and the contract with the

Department. You now have posed two questions to us regarding

application of the Nebraska Public Records Statutes, Neb. Rev.

Stat. §§ 84-712 through 84-712.09 (1994, Cum. Supp. 1996), to the

data, reports and information covered under the terms of the

Exclusive Healthcare, Inc. contract.




Four portions of the Exclusive Healthcare, Inc. contract with

the Department are at issue in your opinion request:




1. Section 4.4.1(b) of the contract requires the HMO to

maintain and operate a Quality Assurance Plan. Under §

4.4.1(b)(7)(c), the HMO must "maintain adequate records of services

delivered [to certain dental patients] (including preventive

education provided) for each encounter with [a client] . . . ."

§ 4.4.1(b)(7)(d) requires the HMO and its affiliated dental

providers to establish and document a recall system for routine

dental check-ups and other appointments, and § 4.4.1(b)(7)(f)

requires the HMO to be able to document follow-up and evaluation of

all client complaints.




2. Section 4.5 of the contract requires the HMO to manage

and document a credentialling and re-credentialling process for its

physicians and providers, and to provide a report indicating the

number and percentage of providers denied credentialling and/or re-

credentialling in the first year of the contract term. That report

must be provided within 60 days after the contract year.




3. Under § 4.7.1 of the contract, the HMO is required to

develop and adopt two clinical practice guidelines for conditions

which have traditionally exhibited high cost and/or variation among

provider treatment methodologies. Within thirty days after the end

of the first contract year, the HMO must document both the process

for the dissemination of the clinical practice guidelines to

participating providers and the ongoing evaluation process for

updating and revising those guidelines as indicated by current

medical practice standards.




4. Finally, § 4.8.6 of the contract requires the HMO to

have a program of health education and prevention available and

within reasonable geographic proximity to its clients. On a

quarterly basis, the HMO must provide documentation of health and

wellness program activity for the preceding quarter.




1. Definition of Public Records and Access to Proprietary

Information




Your first question with respect to the information discussed

above involves both the definition of public records and access to

proprietary or commercial information under the Public Records

Statutes. You ask:




Does the information required to be supplied by Exclusive

Healthcare, Inc. to the Department of Health and Human

Services pursuant to the terms of the contract become a

public record pursuant to section 84-712.01 and subject

to public examination pursuant to section 84-712, or is

the information received an exception to the public

record laws as provided for in section 84-712.05(3) as

"proprietary" information?




You amplify this question by stating:




It is arguable that any or all of the information

required by these terms of the contract [the four

discussed above] could be classified as "proprietary"

according to section 84-712.05(3) and "which if released

would give advantage to business competitors and serve no

public purpose." I would appreciate your legal response

to this argument and to consider whether, alternatively,

such records are those which are "of, or belonging to

this State" . . . and therefore, subject to public access

and examination.




Under the pertinent portions of § 84-712.01, public records in

Nebraska include "all records and documents, regardless of physical

form, of or belonging to this state . . . or any agency . . . of

the foregoing." (Emphasis added). We are aware of no Nebraska

cases which give any specific guidance as to what constitutes a

record "of or belonging to" the state in the context of § 84-

712.01. However, in Nebraska, in the absence of anything

indicating to the contrary, statutory language is to be given its

plain and ordinary meaning. Application of City of Grand Island

247 Neb. 446, 527 N.W.2d 864 (1995). In that regard, "belong,"

when used with the word "to," generally means "to be owned."

WEBSTER'S NEW WORLD DICTIONARY 130 (2nd college ed. 1982).

Consistent with that definition, courts in other jurisdictions have

indicated that "belonging to" connotes title to or ownership.

People v. Crouch, 77 Ill.App.2d 290, 222 N.E.2d 46 (Ill. App. Ct.

1966). On the basis of that authority, we believe that records

"of" or "belonging to" state agencies under § 84-712.01 are those

records "owned" by the agencies or those records for which the

state agencies possess title or an ownership interest.




With that definition in mind, it seems to us that any records

or documents which the HMO must provide to the Department under the

terms of the contract at issue which have been delivered to it in

accordance with the requirements of the contract are records

"owned" by the Department and "public records" which are generally

subject to disclosure. For example, the report on the HMO's

credentialling and re-credentialling process required by § 4.5 of

the contract is clearly a public record after it is provided to the

Department, irrespective of the fact that it might contain data

generated by the HMO. On the other hand, when the HMO is simply

required to provide the Department with access to its records to

"document" the fact that certain activities required by the

contract have taken place, we do not believe that the Department

has any ownership interest in the HMO records involved based solely

upon the right to access. Such records are, therefore, not records

"of" or "belonging to" the Department which are subject to the

Public Records Statutes. In addition, to the extent that the

Department has "information" about the HMO's operations based upon

the knowledge of the Department's employees and not upon a specific

record or document belonging to the Department, that "information"

is not generally subject to the disclosure requirements of the

Public Records Statutes. We have said on numerous occasions that,

in our view, the Public Records Statutes only require public access

to records or documents, and do not require public officials to

respond to questions.


It is also clear that, while the Nebraska Public Records

Statutes allow for citizen access to public records and documents,

those statutes are not absolute, and they provide for exemptions

from disclosure by express and special provisions. Orr v. Knowles,

215 Neb. 49, 337 N.W.2d 699 (1983). For example, § 84-712.05 sets

out a number of categories of public records which may be kept

confidential from the public at the discretion of the governmental

custodian of those records. Of particular interest in the present

instance is the category of documents described at § 84-712.05(3):




trade secrets, academic and scientific research work

which is in progress and unpublished, and other

proprietary or commercial information which if released

would give advantage to business competitors and serve no

public purpose.




As we understand it, your initial question also involves the issue

of whether any data generated by the HMO and contained in records

belonging to the Department falls within the proprietary or

commercial information exemption from disclosure set out in § 84-

712.05(3).




Again, there are no Nebraska cases which offer guidance for

the meaning of the language at issue in § 84-712.05(3). However,

in Op. Att'y. Gen. No. 92068 (May 7, 1992), we indicated that the

material which may be withheld under this portion of § 84-712.05(3)

must be commercial or proprietary information, the disclosure of

which would give advantage to business competitors, and serve no

public purpose. In that context, we also stated in Opinion No.

92068 that: (a) § 84-712.05(3) does not impose any requirement of

"substantial" competitive injury or advantage to make the exemption

from disclosure available, (b) a bare assertion by the provider of

commercial information that such information is confidential is

insufficient to justify nondisclosure, and (c) nondisclosure must

be based upon a showing that a specified competitor may gain a

demonstrated advantage by disclosure rather than upon an assertion

that some unknown business competitor may gain some unspecified

advantage.




As a result, when governmental entities have asserted the

proprietary or commercial information exemption from disclosure in

connection with Public Records complaints in the past, we have

asked them to name specific competitors of the business entity

providing the information which might gain advantage from

disclosure of the material at issue, and we have asked them to

specify the nature of the advantage which could be gained from that

disclosure. In addition, when considering the propriety of a

denial of access to public records based upon the proprietary or

commercial information exemption, we have also noted the provisions

of § 84-712.06 which deal with the segregation of confidential

portions of a public document, and we have asked the agencies

involved to provide access to segregable portions of the documents

at issue with the proprietary or commercial information deleted or

excised.




In the present instance, it is apparent that we have

insufficient information from you at this juncture to determine if

any records belonging to the Department as a result of the

Exclusive Healthcare contract are subject to the proprietary or

commercial information exemption from disclosure set out in § 84-

712.05(3). To make that determination with respect to particular

records, we would need the names of specific competitors of

Exclusive Healthcare, Inc. which could gain competitive advantage

from access to the records at issue, and we would need some

description of the nature of the commercial advantage which would

could be gained from that access. Should you wish to provide us

with such information regarding particular records from the

Exclusive Healthcare contract, we will provide you with our views

as to whether and to what extent § 84-712.05(3) allows those

records to be kept confidential.






2. Location of the Department's Review of the Records and

Information




Your second Public Records question is as follows:




For purposes of section 84-712, is there any difference

[with respect to disclosure] if authorized members of the

Department go to the place where such records are kept by

Exclusive Healthcare, Inc., to review the records and

information required by the contract and if the records

are at no time transferred into the actual physical

custody of the Department?




In general, the mere fact that a record is in the possession

of a public officer or a public agency does not make it a public

record. 76 C.J.S. Records § 99; 66 Am. Jur. 2d Records and

Recording Laws § 3. Conversely, public records need not be in the

physical possession of an agency to be subject to disclosure under

state records acts. 76 C.J.S. Records § 99. As a result, it

appears to us that the key question with respect to the

Department's responsibilities under the Public Records Statutes

regarding the HMO records at issue in this instance is not where

those records are located or where Department employees view them.

Rather, the key question goes to whether particular records at

issue are records "of" or "belonging to" the Department. If they

are records of the Department, then they are public records subject

to disclosure regardless of their location. If they are not

records of the Department, then they are not subject to the Public

Records Act.




Where Department employees view particular records may have

some bearing, however, on the issue of whether the Department has

an ownership interest in those records which would make them

records "of" or "belonging to" the Department. For example, as

discussed above, it appears to us that the Department has little

ownership interest in HMO records which the Department's employees

simply access to "document" the HMO's compliance with various

contract provisions. This is particularly true if the Department's

employees access those "documentary" records at the place where the

HMO keeps the records and do not make copies or take the records

with them. On the other hand, if the HMO sends its "documentary"

records to the Department for review there, it becomes easier to

argue that the records at issue are records "of" the Department.

That argument becomes even stronger if the "documentary" records

are sent to the Department without any understanding that they must




be returned to the HMO. At that point, it seems to us that the

"documentary" records from the HMO are records "of" the Department

which are subject to disclosure.




Sincerely yours,




DON STENBERG

Attorney General






Dale A. Comer

Assistant Attorney General