Request By:
Ms. Eugenia Jump
Administrative Specialist, Sr.
Department for Social Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Robert L. Fears, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of a portion of his request to inspect certain public records in your custody. In his letter to the Cabinet for Human Resources, dated April 7, 1986, he described the records in question as documents relating to the "custodial care and the subsequent demise of Bernard E. Simmons, Jr." He specifically requested those records indicating the names and address of the foster parents and a copy of the Cabinet's investigative file.
In your letter to Mr. Fears, dated April 14, 1986, you advised him that the Cabinet cannot provide the identity of the foster home in which the child was placed. You said that the nature of placements of children in foster homes by the Cabinet requires the identity to be withheld to protect other placements in those foster homes. In support of your decision you cited KRS 61.878(1)(a) and (j). You did advise Mr. Fears that numerous documents and records would be made available for his inspection at the Hopkinsville Office of the Department for Social Services.
In his letter of appeal to this office Mr. Fears states in part that pursuant to an order of the District Court of Christian County, Bernard E. Simmons, Jr. was taken from the home of his parents and placed under the custody of the Cabinet for Human Resources. He maintains that the child's parents have a right to know the identity of the foster parents and to inquire of them relative to the care and treatment of the child and the conditions and causes leading to the child's death. He further states that the public has an interest in whether public servants carry out their duties in an efficient, safe and legal manner. Mr. Fears, therefore, has requested this office to issue an opinion upholding the right of the parents to know the identity of the foster parents (names and address) who accepted the placement of Bernard E. Simmons, Jr. in November of 1985.
The undersigned Assistant Attorney General, on April 25, 1986, talked by telephone with a representative of the legal staff of the Cabinet for Human Resources. I also talked with you by telephone on the afternoon of that same day. As a result of those telephone conversations, it is my understanding that it is the policy of the Department for Social Services to not, in almost every situation where a court order requiring disclosure has not been obtained, reveal voluntarily the names and addresses of foster parents.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(a) as "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The right of privacy has been described in part in 62 Am.Jur.2d Privacy § 1 as follows:
"A judicially approved definition of the right of privacy is that it is the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation of a person of ordinary sensibilities. The right of privacy has also been defined as the right to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned . . . ."
The situation presented by this appeal involves various individuals' rights of privacy and the public's right to know. Thus the right to protection against an unwarranted invasion of personal privacy must be balanced against the public's right to know. The question to be resolved is whether the interest of the public, including the child's natural parents, to know outweighs the rights of the child, the foster parents and the foster parents' other children to their personal privacy.
While some federal cases have adopted another test relative to privacy, this state's courts in construing state statutes have applied the "test of balancing the interests of the parties as well as those of the public measured by the standard of a reasonable man." See
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 110 (1981).
On several occasions this office has made the statement that as a general proposition the public's business must be conducted in public. See, for example OAG 86-21, copy enclosed, at page four. While we still adhere to that general principle there are some special factors relative to this particular situation which need to be mentioned and considered.
Mr. Fears in his letter of appeal to this office alleges that failure to disclose the requested information constitutes an unwarranted invasion of the personal privacy of the natural parents. We would take issue with that statement as, in our opinion, the privacy involved here is that of the child who was removed from his natural parents and placed in a foster home, that of the foster parents and that of any other children who might have been placed in that same foster home.
Many children in foster homes, including the child involved in this particular situation, are removed from their natural parents pursuant to a court order. If a court order has been obtained the conditions in the home of the natural parents must be something considerably less than optimum or even normal. This obviously creates a very difficult situation for the child. Even where a child is removed from a situation involving abuse or neglect, placing the child in a new environment requires the child to face and overcome other problems. He must make changes in his life style, meet and work with people he has not previously known and, generally, adapt and adjust to new conditions and situations.
The nature of the placement situation and the placing of a child in a new environment create enough problems for the child without subjecting him to possible confrontations with natural parents who have obtained the names and address of the foster parents. The Cabinet is evidently of the opinion that a child in a foster home has enough problems to overcome without having to deal with problems presented by confrontations between the child and his parents. This would be particuarly true if the natural parents had abused, neglected or in some other way mistreated the child.
In this particular situation the child involved is now deceased. If the argument is made that privacy is a right which can only be exercised by or on behalf of a living person then it is submitted that the privacy rights of the foster parents can be asserted and protected. The Cabinet contracts with various persons to serve as foster parents. Foster parenting is a difficult job at best and even fewer people would take the job if their names and addresses were made known to the natural parents. It would be even more difficult for foster parents to function effectively if they were subjected to contacts by natural parents of those children under their care and supervision. Such contacts, at the very least, could be disruptive and perhaps even harmful to the development of these children.
Some foster parents may be caring for the children of several different natural parents. If the natural parents of one child within that foster home located and contacted their natural child, the privacy of other children of other parents in that home could be compromised.
This opinion is not an attempt to condone or coverup any wrongdoing by any foster parents. Any such acts should be promptly reported and quickly corrected with the guilty parties to suffer the appropriate consequences. The protection and safety of the children are always the primary considerations.
This opinion is rendered within the narrow confines of a request to inspect public records and with that consideration in mind, it is the opinion of the Attorney General, after balancing the interests of the particular parties involved and the public, that the public agency's denial of the request to provide the natural parents or their representative with the names and address of the foster parents with whom the natural parents' child had been placed is not a violation of the Open Records Act and can be justified under the privacy exemption to public inspection set forth in KRS 61.878(1)(a).
As required by statute a copy of this opinion is being sent to the requesting party, Robert L. Fears, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).