Request By:
Paul F. Fauri
General Counsel
Department for Human Resources
State Health Department Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General concerning what information must be made accessible to the public under the Open Records Law, KRS 61.870 to 61.884, which is included on form VS 2-A, Certificate of Live Birth, which is kept in the custody of the Registrar of Vital Statistics. You sent with your request some examples of birth certificates with certain information deleted by being inked out. The deleted items are as follows: (1) the child's surname, (2) the mother's surname, (3) the father's surname, (4) the mother's mailing address, (5) complications of pregnancy, and (6) concurrent illness or conditions affecting the pregnancy.
The blotting out of some information on a form such as a Certificate of Live Birth is permissible under KRS 61.878(3) which provides:
"If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination."
Information on a public form which is not exempted by a specific statute or by one of the exemptions provided by KRS 61.878 cannot be blotted out before the record is made available for inspection. The question to be decided is, therefore, what information on a Certificate of Live Birth comes under one of the exemptions in the statute.
First, and most emphatically, we must state that it is our opinion that the full name of the mother, the father and the child cannot be deleted. A birth certificate without full name is meaningless. No part of any name should be blotted out.
The mother's mailing address (Item 7e and 16 on the form) is private and may be blotted out. Also Item 23 "complications of pregnancy" and Item 24 "concurrent illness or conditions affecting the pregnancy" are private matters exempted by KRS 61.878(1)(a) and may be deleted.
You also ask our opinion on the problem of dealing with mass requests for Certificates of Live Birth where commercial entities wish a list for the purpose of selling such items as baby shoes. You ask if the Department for Human Resources can adopt a policy which denies access for such purposes.
The purpose for which a person seeks access to a public record is not relevant to the Open Records Law. A public agency has no right to inquire as to the purpose for the inspection and copying of the record. Any inspection request form which requires the statement of the purpose of inspection is contrary to the law. OAG 81-345.
KRS 61.872 provides the following limitations on an inspection of a public record: (1) The official custodian may require written application describing the record to be inspected, KRS 61.872(2); and (2) if the application places an unreasonable burden in producing voluminous records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence, KRS 61.872(5).
When there is no apparent intent to disrupt the essential functions of the public agency by repeated requests to inspect public records the agency may deal with the mass request for inspection or copies of records in various ways. We suggest that the Registrar of Vital Statistics could deal with the request for inspection of Certificate of Live Birth in one of the following manners.
1. Allow complete disclosure and copying. The exemptions in KRS 61.878 are permissive. There is no statute making the information on the certificate confidential. There is no penalty provided for disclosure.
2. Allow inspection after deleting home addresses and medical information.
3. Prepare and make available to the public a list of births showing the name of the child and its parents and all other information which does not come under one of the exemptions of KRS 61.878(1), or any part of such information as is considered useful.
In regard to our suggestion number three above we would note that a public agency is not required to create a record which does not already exist. We suggest the preparing of a list simply because it might be more convenient to the agency and to the public than submitting the records to individual public inspection.
Finally, we would observe that a person's name is personal but it is the least private thing about him. His birth and death are preeminently the concern of the public. The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (ie., adoption records).