March 25, 2010

Chase M. Gray
chase@ratchetsoftware.com

Re: .ADT Files Requested under the Alabama Open Records Act

Ms. Azar:

I am in receipt of your March 24, 2010 e-mail denying my request for specifically
referenced .ADT files from the Alabama Medicaid Agency (“Medicaid”). Thank you for
your prompt reply.

In reading your e-mail, I am concerned that information previously provided to

other Medicaid staff during my ongoing efforts to secure such files may have been
overlooked, perhaps because of the technological aspects of the request. It is my belief
that the most efficient way to address this matter is to again clarify such facts and to ask
for your reconsideration of the denial.

From your e-mail it my understanding that I am being denied the requested files
because:

The data [I am] specifically requesting does not currently (i) exist (ii) in a
written public document (iii) which can be provided to [me] for copying
and/or electronically sent to [me].

With reference to (i) please understand that the specific .ADT files I am
requesting do exist and are created by and stored in the Medimax software program used
by Medicaid. I have previously provided to Medicaid specific instructions on where the
files I am requested are located in the file system of the computer on which the Medimax
program is installed, as well as were such files are located in the diskettes on which
nursing home facility data is stored. I will be happy to provide such information on the
location of such files again.

With reference to (ii), Section 36-12-40 of the Alabama Code of Laws (1975)
states that “Every citizen has a right to inspect and take a copy of any public writing of
this state, except as otherwise expressly provided by statute.” It does not specify or
require that such writing be in the form of a document. Indeed, it is well established in
Alabama Courts that a “public writing” is not limited to a hard copy document, but
includes computer database information and files and other electronic formats.
 In Birmingham News Company v. Mark D. Perry and Alabama Department of
Public Safety (1993), a matter involving the request of electronically stored motor vehicle
registration information, the Circuit Court for Montgomery County, permanently
enjoined the Alabama Department of Public Safety:

“to cease and desist from refusing to copy and deliver to the Plaintiff, on
electromagnetic media of appropriate capacity and suitability for use, all,
or so much as may be requested by the Plaintiff, of the computer databases
maintained by Defendant Alabama Department of Public Safety.”

The Circuit Court further stated that:

“…the Court recognizes that computers have added a great amount of

value to our public records, and that currently the Department generates
the MVRs by computers. Therefore, without the aid of the computer data
base, citizens would not, as a practical matter, have access to all the
information compiled.”

In that matter, the Montgomery County Circuit Court expressly cited and
reaffirmed the position of the Ohio Supreme Court in Ohio ex. rel. Margolius v.
Cleveland (Ohio S. Ct. 1992) on the right of the public to benefit from the specific value
created in public records stored in a data base, in quoting:

“Members of the public should not be required 'to exhaust their energy
and ingenuity to gather information which is already compiled and
organized in a document created by public officials at public expense.'
Similarly, a public agency should not be permitted to require the public to
exhaust massive amounts of time and resources in order to replicate the
value added to the public records through the creation and storage on tape
of a data base containing such records."

Certainly, still other relevant legal opinons exist, e.g. computer records
maintained in the office of the tax assessor constitute public records that may be supplied
to citizens under reasonable conditions. See 209 Ala. Op. Att’y Gen. 29 (Nov. 4, 1987).

Your e-mail also suggests that I am being denied the requested files because:

To provide such information would require that Medicaid utilize staff time
and state resources to extrapolate and create the document that you are
requesting.

However, the files do not have to be processed in any way and already exist in the
format that I am requesting. There is no programming involved, I am simply requesting
certain files that already exist and are already known not to contain sensitive information
as is reported in Schedule D9, which can easily be confirmed.
 Because the specific files I am requesting already exist, there is no need to
“extrapolate and create” any document.

Hence, with regard to (iii) above, the files I have requested can be readily copied
on to any appropriate media, such as a CD-Rom, and sent to me.

Even if there is a cost associated with staff time and state resources in honoring
this request for files, statutory authority exists for the collection of “reasonable” fees to
defray costs of providing such files as are requests.

Under well established Alabama law, where possible, a public agency should
provide free copies of public records. However, if budgetary constraints prevent this, then
a public agency may charge a nominal fee, if necessary to cover its costs for providing
copies of public records. 184 Ala. Op. Atty. Gen. 27 (Aug. 25, 1981). There is a statutory
authority for the collection of fees to defray costs of providing a citizen with information
retained by public officers. A “reasonable fee” may be charged. It is interpreted to mean
the actual cost incurred in providing information. Such charges cannot be imposed to
restrict public access. Attorney’s fees incurred to review a request for documents cannot
be charged. Ala. Op. Atty. Gen. 98-00161 (Jun. 12, 1998).

In summary, I am not asking that Medicare create any documents that do not
already exist. If, according to Alabama case law, a "written document" includes
electronic files, then I am simply requesting currently existing files located on either the
disks submitted from nursing facilities or on any Medicaid computer with Medimax
installed on it. I understand that such request is subject to reasonable fees consistent with
Alabama Attorney General Opinions. I will be happy to once again provide specific
information on the names and locations of such files.

Regrettably, such files could have been provided in a very small fraction of the
time and resources that have been spent already on this request and its denial. I hope this
reply sufficiently clarifies the nature of my specific request.

For the above stated reasons, I ask that you reconsider your denial and thank you
in advance for your reconsideration.

Regards,

Chase Gray