Hawkins v. N.H. Dept. of Health & Human Serv., Doc. No. 218-1999-E-82 (Rockingham Super. Ct., January 2, 2003) (Coffey, J.)




Cassandra Hawkins


N.H. Dept. of Health & Human Serv.



Before the Court is the remanded issue concerning petitioner's RSA 91-A Right-to-Know petition requesting that respondent produce certain Medicaid claim forms in their original format. The Court held a hearing on this matter on July 30, 2002. Based on the parties' arguments and the relevant law, the Court ORDERS respondent to produce the requested materials in their original form. Respondent, however, may redact the discrete pieces of confidential information contained therein, such as patient names and addresses.

The relevant facts and procedural history of this case can be found in Hawkins v. N.H. Dept. of Health & Human Serv., 147 N.H. 376 (2001), and need not be repeated here. By way of brief explanation, however, petitioner filed a Right-to-Know petition for declaratory and injunctive relief requesting respondent to make available its records from 1993 to 1998 for dental services and payments provided for state Medicaid recipients under the age of twenty-one. Respondent, who maintains Medicaid records in a specific electronic form, moved to dismiss the petition on several grounds. The Court granted respondent's motion, finding that as a [2] matter of law, RSA 91-A does not require respondent to create a new record containing the specific data petitioner requested. Petitioner appealed the dismissal, which the New Hampshire Supreme Court vacated and remanded for further proceedings concerning petitioner's request for the Medicaid claims in their original, unspecified form.

Upon remanding the issue, the Supreme Court explained that "a Medicaid claim form does not lose its status as a public record simply because it is stored within a computer system." Id. at 379. Furthermore, according to the Supreme Court, RSA 91-A requires respondent to maintain all such public records in a manner that makes them available to the public. Id. (citing RSA 91-A:4, III-IV (2001 & Supp. 2001). In addition, "cost is not . . . a factor that could prohibit disclosure" of public records to those seeking them. Id. at 380. Thus, although it does not have to create a new or specifically formatted document upon request, respondent must disclose its public records, including its Medicaid claim forms, to petitioner in their original form regardless of the cost.

The claim forms, however, contain some pieces of confidential information that are exempt from disclosure, such as personal information identifying a particular patient. See RSA 91-A:5, IV (Supp. 2002). Nevertheless, the presence of some confidential information does not necessarily render void a Right-to-Know request. See Family Life League v. Dept. of Pub. Aid, 493 N.E.2d 1054, 1058 (Ill. 1996). Records containing discrete pieces of confidential information may be redacted to remove the confidential [3] information so that the requested records can be disclosed. See id. Moreover, redaction of confidential information, including patient names and addresses, does not create a new record, see id., which respondent is not required to generate, see Brent v. Paquette, 132 N.H. 415, 426 (1989).

Accordingly, respondent shall provide petitioner with the requested original Medicaid claim forms. Respondent may redact confidential information from the forms, such as patient names and addresses. Respondent is cautioned, however, to redact only a patient's personal identifying information from the record. Respondent may not redact information that is not confidential, such as the age of an anonymous patient, as the purpose of the Right-to-Know law would be frustrated if respondent could redact such nonconfidential information from its records. See Family Life League, 493 N.E.2d 1054. Additionally, because respondent has a duty to maintain such records so that they are readily available to the public regardless of the cost, petitioner is only required to pay for the actual cost of the copy of the records if respondent uses a photocopying or other device in making the copies. See RSA 91-A:4, III-IV (Supp. 2002).

Finally, the Court finds inapposite respondent's argument based on RSA 167:31. RSA 167:31 applies to situations in which there is a misuse of public assistance records. In recognition of the confidential nature of such records, RSA 167:31 plainly prohibits their misuse. In this case, by contrast, there is no misuse of confidential records. Indeed, respondent is directed to [4] disclose only information that is not confidential, and may redact the confidential parts of the records at issue.


   1-2-03       /s/   


Presiding Justice