Request By:
Mr. Omar L. Greeman
Registrar of Vital Statistics
Department for Human Resources
275 East Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. Gary S. Webb, reporter for The Kentucky Post, has appealed to the Attorney General under KRS 61.880 your denial of his request to inspect certain public records in your custody as registrar of Vital Statistics. The records are described as "any and all death certificates and death verification certificates in the possession or control of the Kenton County Health Department. " You denied Mr. Webb's request by letter dated November 3, 1981, stating several reasons for the denial. Your first reason is stated as follows:
"It is our position, however, that access to vital records is limited and restricted by the provisions of KRS 213.190 which reads in part, as follows:
'The Department of Human Resources shall, upon request, furnish any applicant a certified copy of any birth, death, or other record registered with such department as provided by law when the department is satisfied that the applicant has a direct, tangible and legitimate interest in the information or record requested. The applicant shall pay a reasonable fee. . . .'
"By establishing conditions or criteria for receiving a copy of the record the legislature clearly intended that copies would not be issued to persons who did not meet those criteria. It follows that the same criteria for receiving a copy would apply to requests to view one."
You stated a second reason for denying inspection of the records in the following language:
"In addition, KRS 213.200 specifically provides for the confidentiality of vital records. It reads as follows:
'For the purpose of this chapter the confidential relations and communications between physicians and patients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.'"
As a third reason for denying inspection you cited KRS 61.878(1)(a), the provision of the Open Records Law containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Finally, you gave as a fourth reason for denying inspection that the records were made confidential by federal law (42 USC 242(m)) and therefore exempted by KRS 61.878(1)(j).
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that none of the four reasons given for denying inspection of the requested records is legally valid and that the request for inspection should not have been denied. We will discuss each of the reasons given.
(1) We do not agree with your conclusion that the Registrar of Vital Statistics has the right to determine which person shall be allowed to inspect vital statistic records because of the provision of KRS 213.190 concerning obtaining a certified copy of a record. The right to obtain a certified copy is not the same as the right, upon inspection, "to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records" as provided by KRS 61.874. A certified copy enjoys a special status in the law and to produce one requires special attention and action by the custodian.
Further, we find nothing in KRS Chapter 213 which makes vital statistics and the indexes thereto confidential by law. KRS 213.180(3) requires the Secretary for Human Resources, every five years, to have printed and bound in suitable volumes an alphabetical index list of all births and deaths reported and registered as reported by the local registrars throughout the state. It further provides that the index list shall be prima facie evidence of the information therein contained in all courts of the state. KRS 213.180(4) reads as follows:
"A copy of the volume or volumes containing the index list of births and deaths shall be furnished and delivered to each county health department and shall become a permanent record with the county. Any such volumes now in possession of the county clerk may be transferred to the county health department with the approval of the county/judge executive."
There is no statutory provision making the indexes of births and deaths in the custody of local registrars confidential, nor is there any statute making birth and death certificates confidential.
(2) We do not agree with your conclusion derived from KRS 213.200. That statute can only be interpreted as preventing the Department from requiring a physician to disclose to the Department confidential communications between the physician and his patient. Conversely, that statute does not authorize the Registrar of Vital Statistics to withhold vital statistic records from public inspection.
(3) There are no privacy rights involved in a request to inspect death records since the exemption provided by KRS 61.878(1)(a) pertains only to "personal privacy" , and that term applies only to the living.
(4) The federal statute you cite has no application to records in state or local custody.
In summary, we hold that a person requesting to inspect public records does not have to show any special standing or reason to make the inspection, that the four reasons you gave for denying Mr. Webb's request to inspect the records are not legally valid and that you illegally denied the request to inspect the records. You have the right to challenge this opinion in circuit court within 30 days if you choose to do so rather than to comply with it as provided by KRS 61.880(5).
A copy of this opinion is being sent to the requester as directed by statute.