FRANKFORT — Payment records and subpoenas related to an investigation of Lt. Gov. Steve Henry were withheld from reporters in violation of the Kentucky Open Records Act, the attorney general has ruled.

        His attorney has confirmed that a federal grand jury is looking into Medicare payments to Dr. Henry, who is an orthopedist.

        Officials of the Cabinet for Health Services said records requested by three news or ganizations — the Lexington Herald-Leader, the Louisville Courier-Journal and WHAS-TV — were withheld because of a statute on the secrecy of grand juries.

        In an opinion made public Monday, Assistant Attorney General Amye L. Bensenhaver said the Cabinet's reliance on the statute was misplaced.
       

Legally binding
               The statute can be invoked by law enforcement agencies or those involved in administrative adjudication, Ms. Bensenhaver wrote. Neither exception describes the Cabinet, nor has the Cabinet shown that such an agency with “concurrent ju risdiction” has requested secrecy, she wrote.

        Moreover, the requested documents “were generated in the normal course of business ... independently of any investigative process,” Ms. Bensenhaver wrote.

        Attorney general opinions are legally binding in disputes over public records and public meetings. The Cabinet could challenge the opinion in Franklin Circuit Court. The newspapers and Louisville-based WHAS-TV appealed to the attorney general after the Cabinet denied their separate requests to inspect records as far back as 1990.
       

"Innocent mistakes'
               Requested records included Dr. Henry's Medicaid and Medicare billings, information on procedures he performed and any federal subpoenas received by the agency. Ms. Bensenhaver's opinion covered all three appeals.

        Dr. Henry's attorney, Jack Smith of Louisville, said earlier that federal investigators probably have found billing discrepancies. But Mr. Smith said any errors were “innocent mistakes” made through “sloppiness.”

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