Official Opinion 99-13
Office of State Administrative Hearings
You have asked for my opinion regarding the distribution of the decisions of the Office of State Administrative Hearings (OSAH) by placing them on a web site. Your concern is that there are state or federal confidentiality statutes that may apply to certain types of hearings and you want to know whether redacting the name and any personally identifiable information regarding individuals will comply with the applicable confidentiality provisions.
You have identified the following classes of cases in which a confidentiality provision may apply.
1. Medicaid applicant, recipient, and provider matters. 2. Public assistance matters referred by the Department of Human Resources. 3. Revenue matters. 4. Matters involving continued hospitalization of the mentally ill, the mentally retarded, and substance abusers. 5. Due process hearings under the Individuals with Disabilities Education Act (IDEA). 6. Nursing home bill of rights issues. 7. Personal care home remedies. 8. Mentally ill children in state hospitals and continued outpatient placement for the mentally ill.
The analysis for each of the above classes of cases will depend in large part on the particular confidentiality statute that applies. However, the following general analysis should be the background against which all are decided.
The Office of State Administrative Hearings is subject to the Open Records Act. See O.C.G.A. §§ 50-18-70 (all agencies as defined in 50-14-1 must allow public inspection of their records received in the course of operation), 50-13-40(a) (OSAH is a part of the executive branch) and 50-14-1(a)(1) (definition of “agency” includes all state departments, agencies, boards, bureaus, commissions, and authorities). Records of “contested cases” decided by OSAH must be provided to the superior court if there is an appeal. See O.C.G.A. § 50-13-19(e). Records of cases filed in superior courts are open to public inspection unless they are sealed. O.C.G.A. § 15-6-61 (a)(8). Thus, any document that becomes a part of the “record” in an OSAH hearing is subject to disclosure unless it has been filed with a stipulation that its confidentiality be maintained pursuant to a confidentiality statute. Cf. Georgia Hosp. Ass’n v. Ledbetter, 260 Ga. 477 (1990). Similarly, the OSAH decision itself is presumptively a public document unless the parties invoke some confidentiality provision. See O.C.G.A. § 50-18-72 (g); Ga. Comp. R. & Regs. r. 616-1-2-.23.
1. MEDICAID AND PUBLIC ASSISTANCE
Turning to the specifics of each of the categories of cases that you have mentioned, I have found a basic similarity in several. That is, the existence of a statute or regulation creating a “confidentiality rule” and an exception to it when there is litigation about an issue that is central to the relationship between the state agency and a citizen who is protected by the confidentiality rule. See 42 C.F.R. § 431.306(c), O.C.G.A. § 49-4-150 (Medicaid recipient confidentiality); O.C.G.A. § 49-4-14 (public assistance confidentiality). However, in the area of public benefits that pass through the state to the citizen, the confidentiality rule does not apply to matters that are “directly connected” or “directly related” to the administration of the aid program. See 42 C.F.R. § 431.302(d) (Information may be used or disclosed in conducting or assisting an investigation, prosecution, or civil or criminal proceeding related to the administration of the Medicaid plan.). Similarly, the public assistance confidentiality rule does not apply in matters “directly connected to the administration of the program.” See O.C.G.A. § 49-4-14; Ga. Comp. R. & Regs. r. 290-2-28-.08. The cases that OSAH will decide in this area appear to be directly connected or related to the administration of the Medicaid or public assistance plan, and the opinions are not confidential.
However, officials at the Health Care and Financing Administration (HCFA), a federal agency that administers and regulates the Medicaid program, inform me that they interpret the Medicaid rules so that confidentiality is maintained at the administrative hearing level. I have found no case law or regulation on point. However, I note that the regulations governing hearings for recipients contemplate that they will be heard by the state Medicaid agency itself rather than by a separate agency. See 42 C.F.R. § 431.205. The confidentiality provisions in the CFR are grounded on the premise that the state Medicaid agency must restrict the disclosure of information to purposes directly connected with the administration of the state plan. If an appeal normally would be held within the agency, the question of disclosure would not come up until the recipient filed for judicial review in the state judicial system. Under that framework, it is conceivable that the term “civil proceeding” in 42 C.F.R. § 431.302(d) does not include a recipient hearing pursuant to 42 C.F.R. § 431.220. Therefore, although it is not at all clear that confidentiality applies, it appears to be wiser to redact the name and any identifying information in Medicaid recipient appeals opinions before the opinion is disclosed. Identifying information is specified in 42 C.F.R. § 431.305.
2. REVENUE MATTERS
Various confidentiality statutes apply to the different taxes administered by the State Revenue Commissioner. See O.C.G.A. § 48-2-15 (a) (“[e]xcept as otherwise provided in this Code section, information secured by the commissioner incident to the administration of any tax shall be confidential and privileged”); O.C.G.A. § 48-7-60 (a) (“[e]xcept in accordance with proper judicial order or as otherwise provided by law, it is unlawful for the commissioner, other officer, employee, or agent . . . to make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under the law of this state”); O.C.G.A. § 48-15-10 (a) (“[n]otwithstanding any law to the contrary, neither the commissioner nor a public employee may reveal facts contained in a report or return required by this chapter or any information obtained from a person under this chapter”). Although the Georgia Supreme Court, in construing the specific provisions applicable to income tax returns, has noted “a clear policy favoring nondisclosure,” Garrett v. State, 243 Ga. 322, 327 (1979), the Court has also recognized that “[t]he confidentiality of tax returns or return information is not absolute,” Bowers v. Shelton, 265 Ga. 247, 250 n.9 (1995). Moreover, each of the above confidentiality statutes explicitly recognizes an exception for the use of tax information in proceedings in which the particular taxpayer’s liability is at issue. See O.C.G.A. § 48-2-15 (b)(1) (permitting “the use of confidential information as evidence before any state or federal court in the event of litigation involving tax liability of any taxpayer”); O.C.G.A. § 48-7-60 (allowing “[the] use as evidence[ ] of the report or return of a taxpayer in the event of any action or proceeding involving any tax liability of the taxpayer”); O.C.G.A. § 48-15-10 (a) (tax information may be disclosed “in connection with a proceeding involving taxes due under this chapter from the person making the return”). See also Garrett v. State, 243 Ga. at 327 (a court may require employees of the department of revenue to produce income tax returns and reports in response to subpoena “when such returns are directly in issue”) (emphasis omitted).
Despite the minor differences in language, I believe that the litigation exception of each of the confidentiality statutes above can only reasonably be read as encompassing OSAH hearings instituted by aggrieved taxpayers pursuant to O.C.G.A. § 50-13-12. For this reason, the State Revenue Commissioner may introduce tax returns and information into evidence at such a hearing which would otherwise be confidential and nondiscloseable. The more difficult issue, of course, is whether this information or OSAH’s subsequent decision thereby becomes subject to full disclosure under the Open Records Act. As previously noted, there is a general policy favoring nondisclosure of state tax returns and tax information. Garrett v. State, supra. At the same time, exceptions to the Open Records Act’s disclosure requirements are to be construed narrowly. Hardaway Co. v. Rives, 262 Ga. 631, 634 (1992).
However, your specific question to this office concerns OSAH decisions only and whether any confidentiality concerns with respect thereto may be eliminated by redacting the name and any personally identifiable information regarding the particular taxpayer. The Internal Revenue Service, which operates under confidentiality provisions much like Georgia’s, see I.R.C. § 6103, follows this practice itself prior to publishing private letter rulings. Similarly, I see no legal basis for concluding that any of the Georgia confidentiality provisions or court decisions cited above precludes the disclosure of an OSAH tax decision from which such confidential information has been removed. Please note that the IRS gives taxpayers an opportunity to review the redacted version of their private letter rulings before publication and to suggest any additional deletions the taxpayers feel are necessary to protect their confidentiality. I recommend that OSAH adopt the same practice.
3. CASES INVOLVING THE TREATMENT OF MENTAL ILLNESS, MENTAL RETARDATION AND SUBSTANCE ABUSE
In the cases decided by a court dealing with treatment for mental illness, mental retardation and substance abuse, the record of the proceeding must be sealed and not disclosed except by order of that court. See O.C.G.A. §§ 37-3-167, 37-4-126, 37-7-167. It is my view that the record of the proceeding includes the opinion in a case or hearing. I base that view on the well-established premise that the permanent record of a court of record includes the “precise history of a suit from its commencement to its termination, including conclusions of law thereon drawn by the proper officer for the purpose of perpetuating the exact state of facts.” DeKalb County v. Deason, 221 Ga. 237, 238 (1965).
Again in this context it makes sense that OSAH proceedings be treated the same as a court proceeding would be and in my opinion the statutes cited above require OSAH to seal the records. If the record and opinion are sealed, obviously the opinion cannot be posted on a web page even if personal identifying information is redacted.
4. DUE PROCESS HEARINGS UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
The Individuals with Disabilities Education Act (IDEA) at 20 U.S.C. § 1415(h)(4) provides that “findings and decisions [of due process hearings] shall be made available to the public consistent with the requirements of section 617(c) [20 USCS § 1417(c)] (relating to the confidentiality of data, information, and records).” Federal law requires the Secretary of Education to “assure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by state and local educational agencies.” 20 U.S.C. § 1417(c). Pursuant to that direction the Secretary has promulgated 34 C.F.R. §§ 300.571 and 300.572 that generally require school systems and the state educational agency to protect the confidentiality of personally identifiable information. Based on the above federal statute and regulations, I am of the opinion that OSAH may publish IDEA decisions after deleting personally identifiable information.
5. HEARINGS REGARDING THE RIGHTS OF RESIDENTS OF NURSING HOMES AND PERSONAL CARE HOMES
A person receiving care in a long-term care facility (a nursing home) has a statutory right to privacy that includes the right to have their personal and medical records treated as confidential and not disclosed except as authorized by the resident or the resident’s guardian. See O.C.G.A. §§ 31-8-103, -114. A resident of a personal care home has the right to have their records treated as confidential by Department of Human Resource regulation. See Ga. Comp. R. & Regs. r. 290-5-35-.18(1)(r). In both cases the resident is given the right to an administrative hearing to resolve complaints that cannot be resolved by a more informal grievance procedure. See O.C.G.A. §§ 31-8-125, -135. However, there is no provision that these hearings or the records generated by them be confidential or that personally identifiable information be deleted from the decision. In all probability, information from either the personal or medical file of the resident will be at issue at that hearing.
Practically speaking, if the hearing is requested by the resident and the hearing is open, personal and medical information will be disclosed at the direct or implied request of the resident or as necessary to rebut the evidence that the resident presents. Other statutes dealing with the confidentiality of medical records recognize that they may be subpoenaed or otherwise introduced as evidence in a legal proceeding. See, e.g., O.C.G.A. § 24-9-40. Therefore, I conclude that the OSAH records in these cases are not protected by a confidentiality provision and opinions may be published without redaction.
Based on the foregoing, it is my official opinion that decisions of the Office of State Administrative Hearings are public records unless they contain information that is subject to a confidentiality provision. In most cases, the whole opinion may be disclosed to the public by placing it on a web page or published by some other method. In some cases, such as IDEA cases, personally identifiable information must be redacted before the opinion is published. In the case of mental health, mental retardation and substance abuse treatment cases, the record must be sealed and the opinion may not be disclosed.
KATHRYN L. ALLEN
Senior Assistant Attorney General