Irreconcilable differences in statutory interpretation between the Auditor of Public Accounts and the Cabinet for Health and Family Services have forced the dispute into court.

Irreconcilable differences were, in so many words, the explanation Auditor Allison Ball offered when she announced her decision to file suit for "full, direct, and real time" access to iTWIST on August 26.

https://www.courier-journal.com/story/news/politics/2024/08/26/state-au…

https://amp.kentucky.com/news/politics-government/article291482250.html

The 42 page complaint filed in Franklin Circuit Court describes a series of failed attempts by the parties to negotiate a resolution and the legal positions from which neither will budge.

https://www.auditor.ky.gov/PressRoom/Documents/FILED%20FILINGS2.pdf

The lawsuit centers on CHFS's reliance on a confidentiality statute, KRS 620.050(5), that prohibits the Auditor's unrestricted access to the iTWIST database of neglected and abused Kentuckians. The Auditor maintains that her office must have unrestricted access to iTWIST to discharge the newly assigned duties of Commonwealth's Office of Ombudsman for CHFS -- duties formerly assigned to the office of the CHFS Secretary.

Senate Bill 48, enacted in the 2023 legislative session, transferred those duties to the Auditor. The bill included a delayed effective date of July 1, 2024. This is apparently why the dispute only recently surfaced. The resulting legal impasse cripples the Auditor's ability to effectively discharge the newly assigned duties.

https://apps.legislature.ky.gov/record/23rs/sb48.html

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=55117

https://kentuckylantern.com/2024/07/25/welcome-move-to-boost-child-prot…

The sponsor of SB 48, Senator Stephen Meredith, insists that the bill's "clear intent was for the [Auditor's] office to have access to the iTWIST database. This common-sense reform ends the practice of the cabinet investigating itself. The language of this bill is clear and undeniable."

https://x.com/kysenategop/status/1810764557675340226?s=46&t=W5grKM-bCiM…

The Governor and CHFS remain unconvinced. They maintain that in reassigning the duties of ombudsman to the auditor in the 2023 Regular Session, the General Assembly neglected to revise current laws restricting disclosure of information stored in iTWIST. Relying on 620.050(5), they are unyielding.

The Auditor insists that the new law requires no fix and that it already secures her right of unrestricted access to iTWIST. Partial access, which CHFS has proposed, is an unworkable solution.

A July 30 hearing of the Interim Joint Committee on Families and Children on July 30 offered some hope for compromise. Lawmakers grilled CHFS representatives for their recalcitrance. Ball appeared receptive to the notion of a memorandum of understanding for interagency sharing of the database but only, it seemed, on her terms.

One month later Auditor Ball sued the Governor, the CHFS Secretary, and the Commonwealth Office of Technology's Chief Information Officer.

https://kentuckylantern.com/2024/07/30/kentucky-lawmakers-hear-about-ef…

"In the lawsuit," the Kentucky Lantern reports, Ball pointed to stalled efforts to resolve the dispute with CHFS but concluded, "the time has now come for the judiciary to step in and end the cabinet’s and the governor’s obstruction.'"

https://kentuckylantern.com/2024/08/26/kentucky-auditor-ball-sues-beshe…

The simmering feud boiled over soon after Ball filed suit. Each official accused the other of playing politics.

In a press release issued the same day she filed suit, Ball declared, “We have tried everything in our power to reach an agreement with the Cabinet to restore iTWIST access. But unfortunately, Gov. Beshear and the Cabinet are more interested in placing unworkable and unlawful constraints on our access than helping the commonwealth’s endangered children and adults.”

https://www.courier-journal.com/story/news/politics/2024/08/26/state-au…

Not to be outdone, a spokesman for the Governor asserted, "On numerous occasions the Cabinet believed a resolution had nearly been reached, only to find the Auditor’s Office had changed its position." Her decision to file suit "shows the Auditor would rather play politics than work with the Cabinet on a solution — one that meets the requirements set forth by the General Assembly.”

https://www.courier-journal.com/story/news/politics/2024/08/26/state-au…

This war of words is little more than high stakes brinkmanship. "Playing politics" with the welfare of Kentucky's neglected and abused children -- and it's most vulnerable citizens -- to score points with their political base, these officials' actions are inexcusable. Vulnerable Kentuckians are placed at greater risk with each passing day.

Were there no viable legal solution, this impasse and resort to the court might be understandable, even defensible.

But it is bureaucratic intransigence that is obstructing the obvious temporary solution.

Describing the dispute between the warring constitutional officers, as "a political tempest in a public records teapot," the Kentucky Open Government Coalition observed in late July:

"The existence of a statutory confidentiality provision has not -- at least in the past -- precluded the exchange of confidential records or the sharing of confidential information between public agencies 'when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.'

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=54126 (See subsection (5))

"This statutory language -- which appears at KRS 61.878(5) -- has long been construed to 'promote agency sharing of otherwise exempt public records' for legitimate government purposes. Although 'there is no unqualified right for one entity to examine' the confidential records of another 'in their entirety and without restrictions,' past attorneys general have deemed responsible agency sharing of protected records between public agencies, under terms of strict confidentiality, a 'laudable goal' that is to be 'strongly encouraged.' This sharing 'eliminates duplication of effort and conserves resources' when the recipient public agency verifies to the custodial public agency that the shared information 'is necessary in the performance of a legitimate government function' and agrees to observe the records' confidentiality."

https://kyopengov.org/law/court-decisions/board-ed-v-lexington-fayette-…

https://kyopengov.org/law/ag/2001/01-ord-119

https://kyopengov.org/blog/impasse-between-governor-and-auditor-can-be-…

That temporary solution to this unnecessary public records dispute is "a carefully drafted memorandum of understanding for CHFS sharing of iTWIST with the Auditor's ombudsman under terms of strict confidentiality and only for the legitimate governmental purpose stipulated."

https://kyopengov.org/blog/impasse-between-governor-and-auditor-can-be-…

The Auditor and representatives of CHFS appeared receptive to this approach at the July 30 hearing of Interim Joint Committee on Families and Children. Both, however, acknowledged  differences in legal interpretations that impeded the execution of the memorandum of understanding.

https://kyopengov.org/blog/interim-legislative-committee-meeting-confir…

The promise of timely resolution of this pressing issue has evaporated. Ball has filed suit. Although a special session is not in sight, we trust that lawmaker have commenced discussion of a 2025 bill to ensure the Auditor's access to iTWIST in her role as CHFS ombudsman.

https://share.newsbreak.com/8h8bvlsz?s=i16

There is ample blame for all lawmakers and officials to share. But in the final analysis, they will suffer little, if any, cost for poor draftmanship, politicization, intransigence, and bureaucratic inaction. That cost will be born by neglected and abused children and vulnerable adults across the Commonwealth.

This is unacceptable.