Nursing home audit letters found exempt from disclosure

NEBRASKA–Letters sent as part of nursing home audits qualify as investigatory records and need not be released, the state Supreme Court held in mid-December. In so holding, the high court adopted a test for determining whether records qualify as investigatory records and are thus exempt from disclosure under state law.

Writing for the court, Justice John Gerrard noted that this case marked the first time in Nebraska jurisprudence where a court had been asked to establish a standard to determine what records are part of an investigation.

The high court concluded that a public record is an investigatory record when it displays two characteristics. First, the activity giving rise to the document must be related to the duty of investigation or examination with which the public body is charged. Second, there must be a rational relationship between the investigation and the body’s duty to investigate.

The documents sought were letters requesting information sent to Nebraska nursing homes as part of the state’s auditing of Medicaid claims submitted to it for reimbursement.

The state initially allowed the association to review audit records, but refused to grant two of the association’s other requests after document review began. The trial court upheld the denial. The high court affirmed the lower court and held that the letters qualified as investigatory records under the newly adopted standard.

The high court also rejected arguments that the letters shed their investigatory privilege once the state disclosed them to the nursing homes. Nebraska law mandates that investigatory records lose their privileged status once disclosed to the public. However, the high court held that disclosure must be to the general public and not to the investigation’s subject.

Finally, the court rejected the association’s arguments that it should be given access to the documents because the state failed to promptly notify the requester that some of its requests would not be granted. The court noted that the association could not show evidence of injury or prejudice in the 96-day delay before the state issued a written denial of access. (Nebraska ex rel. Nebraska Health Care Association v. Dept. of Health and Human Serv. Finance and Support)