Wisconsin Attorney General Opinions

Opinion # OAG 13-82,

26 January 1982.

Hospitals, Public Records,
Documents in the possession of the
Wisconsin Hospital Rate Review Committee
are not public records and, therefore,
are not subject to right of inspection
under Section 19.21, Stats.

The contract creating the Committee does not
give the right to compel access to documents
in the possession of the staff members
of the Hospital Rate Review Program.

ANN JANSEN HANEY, Secretary
Department of Regulation and Licensing

As a member of the Wisconsin Hospital
Rate Review Committee you ask several
questions relating to public access
to records of the Committee.

Access to public records is governed by
Sections 16.61 and 19.21, Stats.

Section 16.61, Stats., provides. in part:

16.61(2) DEFINITIONS.

   As used in this section: . . . .

16.61(2)(b)

   "Public records" means all books,
   papers, maps, photographs, films,
   recordings, or other documentary
   materials or any copy thereof,
   regardless of physical form or
   characteristics, made or received by any
   agency of the state or its officers or
   employes in connection with the
   transaction of public business . . . .

16.61(12)

   ACCESS TO PHOTOGRAPHIC REPRODUCTIONS.
   All persons may examine and use the
   photographic reproductions of public
   records subject to such reasonable rules
   as maybe made by the responsible officer
   of the state agency having custody of
   the same.

Section 19.21, Stats.,
states in pertinent part:

19.21(1)

   Each and every officer of the state, or
   of any county, town, city, village,
   school district, or other municipality
   or district, is the legal custodian of
   and shall safely keep and preserve all
   property and things received from his
   predecessor or other persons and
   required by law to be filed deposited,
   or kept in his office, or which are in
   the lawful possession or control of
   himself or his deputies, or to the
   possession or control of which he or
   they may be lawfully entitled, as such
   officers.

71 OAG 44  45  46  47  48  49  END

   Except as expressly provided otherwise,
   any person may with proper care, during
   office hours and subject to such orders
   or regulations as the custodian thereof
   prescribes, examine or copy any of the
   property or things mentioned in
   Subsection 19.21(1).

Whether the records of the Committee are
public records depends in this case on
whether the Committee is an agency of
the state and whether its members are
officers or employes of a state agency.

In my opinion, the Committee is not an agency
of the state and its members are not officers
or employes of a state agency as those terms
are used in Sections 16.61 and 19.21. Stats.

The Committee was established pursuant to a
contract entered into under the provisions
of Section 146.60, Stats.,
which provides in part:
146.60(1)

CONTRACT RATES.

   The department of health and social
   services may enter into a contract with
   the Wisconsin hospital association and
   associated hospital services for the
   purpose of setting hospital rates
   prospectively.

146.60(2) DEFINITIONS. In this section:
   . . . . . . . . . . . . . . . . .

146.60(2)(c)

   "Contract" means the policies and
   procedures governing the hospital
   rate review program, which
   agreement is mutually based involving
   the Wisconsin hospital association,
   associated hospital services, and
   the department of health
   and social services.

The contract governing the hospital
rate review program establishes
a Rate Review Committee.

Relevant portions of the contract provide:

RATE REVIEW COMMITTEE

The Rate Review Committee is a committee
of the State of Wisconsin, the Wisconsin
Hospital Association, and Blue Cross of
Wisconsin, and is charged with reviewing
rate requests and rendering decisions,
subject to appeal, on the acceptance or
rejection of these requests.

71 OAG 44  45  46  47  48  49  END

Composition of Committee.

The Committee shall consist
of 20 members:

(1)
six members appointed by
the Governor, three of whom may not be
employees of the State of Wisconsin;

(2)
six members appointed by the Wisconsin
Hospital Association, three of whom may
not be employees of hospitals or the
association;

(3)
six members appointed
by the Blue Cross Board of Directors,
three of whom may not be employees of
Blue Cross of Wisconsin and three of
whom must be approved by the Wisconsin
Hospital Association and the State
Department of Health and Social
Services; and,

(4)
two members selected
jointly by the Wisconsin Hospital
Association and the State Department
of Health and Social Services.

Efforts will be made to appoint
physicians to the Committee.

Committee Selection.

In selecting Committee members,
membership should include a cross
section of the health care consumer by
involving members from industry,
organized labor, and the health care
professions (administrators and
physicians).

Committee appointments will be made
annually and the Committee shall name
its Chairperson.

Members may be reappointed.

Thus, the Committee is not an entity created
by state law, but rather is an entity created
pursuant to a contract authorized by
Section 146.60, Stats.

The definition of a governmental body in
Wisconsin's Open Meetings of Governmental
Bodies Law, which may be considered
in pari materia with Section 19.21,
Stats., is helpful.

Section 19.82 (1), Stats., provides in
material part:

   "Governmental body" means a state or
   local agency, board, commission,
   committee, council, department
   or public body corporate and politic
   created by constitution, statute,
   ordinance, rule or order; a governmental
   or quasi-governmental corporation; or a
   formally constituted subunit of any of
   the foregoing . . . .

It is self-evident that the Committee is not
created by constitution, statute, ordinance,
rule or order, nor is it a formally
constituted subunit of any of the entities
enumerated in Section 19.22(1), Stats.

71 OAG 44  45  46  47  48  49  END

Nor are its members designated by state law.

The contract provides that six of the twenty
members are appointed by the Governor.

There is no requirement that any of
the Governor's appointees be
state officers or employes.

The only requirement is that three of the
Governor's appointees not be state employes.

Thus, the fact that one or more of the
Governor's appointees happen to be state
officers or employes is an incidental fact
and has no relevance to their status as
members of the Committee.

Discussing these concepts
our Supreme Court in

Martin v. Smith,
239 Wis. 314, 332,
1 N.W.2d 163 (1941),

quoted with approval from

State v. Hawkins,
79 Mont. 506, 257 P. 411 (1927):

   To constitute a position of public
   employment a public office of a civil
   nature, it must be created by the
   constitution or through legislative act;

   must possess a delegation of a portion
   of the sovereign power of government
   to be exercised for the benefit of
   the public;

   must have some permanency and
   continuity, and not be only
   temporary or occasional;

   and its powers and duties must be
   derived from legislative authority and
   be performed independently and without
   the control of a superior power, other
   than the law, except in case of inferior
   officers specifically placed under the
   control of a superior officer or body,
   and be entered upon by taking an oath
   and giving an official bond, and be
   held by virtue of a commission
   or other written authority.

The Governor's appointees are not appointed
pursuant to the constitution or legislative
act, they are appointed by the Governor by
virtue of the provisions of a contract
created under Section 146.60, Stats.

Indeed, the statute does not require
that the contract provide for
gubernatorial appointments.

The Committee members, as such, possess
no delegation of a portion of the
sovereign power of the state.

Although the Committee may set rates for
Title XIX reimbursement, it has no power to
legally require that a particular health care
facility adhere to its rate schedule.

(failure by a facility to adhere may result
in disallowance of reimbursement, but this
event would not be occasioned by legal
action of the Committee.)

The Committee has no permanency or continuity
since it exists at the pleasure of a contract
that may be terminated by the parties.

71 OAG 44  45  46  47  48  49  END

The Committee's powers and duties do not flow
from legislative authority but rather from
the contract which established it.

And, of course, none of the Committee
members takes an oath of office.

It follows, since the Committee is not a
state agency nor are its members officers or
employes of a state agency, that documents
received by members of the Committee are not
public records[*] subject to inspection
under Section 19.21 Stats.

You also ask whether, as a member of the
Committee, you have a right of access either
under Section 19.21. Stats., or under the
contract to all documents submitted to Blue
Cross relating to a rate increase request.

Some background information is relevant.

To implement the Wisconsin Hospital Rate
Review Program, the Committee reviews
requests for rate increases by state
hospitals.

The Committee is staffed by
Blue Cross of Wisconsin.

Under the agreement, hospitals submit to the
Committee staff data to support the rate
increase requests, such as the hospital's
capital equipment budget, real property
acquisition budget, operating budget, interim
financial statements, financial reports and
other data relating to the rate increase.

The staff summarizes and analyzes the
information and presents it to the Committee
with a recommendation.

Not all documents received by Blue Cross
relating to the request for rate increase
are provided to Committee members.

As already noted, Section 19.21, Stats.,
is inapplicable.

Therefore, whatever right of inspection you
may have is dictated by the contract.

Although the contract provides

the Rate Review Committee will be
staffed by Blue Cross of Wisconsin which
will ensure that all data are presented
in a manner which is equitable to all
parties and gives the committee
sufficient information with which
to make an objective decision:

and further

throughout all phases of the Program,
public accountability will be maintained
and all rate review meetings will be
open to any interested parties
including the press,

contract at 3-4, I find no provision in the
contract that gives to any person, whether
a Committee member or otherwise, the right
to legally compel access to any document
in the possession of Blue Cross staff.

71 OAG 44  45  46  47  48  49  END

BCL:WHW

[*]

It does not necessarily follow that all
documents in the possession of committee
members are not public records; some
may be by virtue of their being
duplicates or copies of documents
that are already public records
of a state agency or officer.

71 OAG 44  45  46  47  48  49  END