Request By:
Ms. Anna Grace Day
Commissioner
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
Kimberly K. Greene, Esq., on behalf of her clients, The Courier Journal & Louisville Times Company and Mr. Alan Judd, a staff writer for The Courier-Journal, has appealed to the Attorney General pursuant to KRS 61.880 your denial of Mr. Judd's request to inspect and copy various records and documents in the custody of your Department.
In a letter to the Cabinet for Human Resources, dated September 3, 1987, Mr. Judd requested to inspect the applications for permission to receive or place a child (form BSS-187), filed with the Cabinet during the past five fiscal years concerning independent, nonrelative adoptions and adoptions through licensed agencies. He said he would not object to the Department blocking out the names of persons wishing to receive a child, the names of the mother and the legal father and the name of the child.
In connection with the information on the forms Mr. Judd requested the following material:
- Under section 1, the location of the adoptive parents - at least the state in which they reside, but preferably the city and state. Their street address is not necessary; nor is their telephone number.
Under section 2, the location of the mother and legal father - again, the city and state would be plenty.
Under section 3, the child's date of birth or, when applicable, the expected date of birth.
Under section 4, the name, address and telephone number of the attorney, physician or other agent of the applicant wishing to receive or place a child.
Mr. Judd further stated that he is trying to obtain the names of attorneys who handle private adoptions, how many adoptions each has handled, the locations where the children have been placed and the ages of the children who have been placed. In addition, he requested documents concerning Kentucky children who were adopted in other states or nations without an application for permission to receive or place a child having been filed with the Cabinet.
You replied to Mr. Judd in a letter dated September 18, 1987. His request was denied and in support of your position you cited KRS 61.878(1)(j) and KRS 199.570(1). You concluded with the following statements:
It is the Department's position that any information in an adoption record (names of attorneys, adoptive parent's names and/or addresses, dates of birth, names of physicians, etc.) is, in fact, a part of that record and is sealed along with all other material in the record. Any material shared without a court order, no matter what information is deleted from that material, would be a direct violation of KRS 199.570(1). Therefore, in accordance with the above statutes, your request must be denied.
In her letter of appeal to this office Ms. Greene maintains that the information requested by Mr. Judd is not of the type which violates anyone's right of privacy. The information sought is "statistical" or "directory" in nature. None of the information requested would enable Mr. Judd to identify or locate the adoptive parents, the birth parents or the child.
Ms. Greene also takes exception to your position that the statutes preclude you from sharing any of the information contained on the forms in question. She cites KRS 61.878(3) but presumably she is referring to KRS 61.878(4). [The statute was amended in 1986 and what was formerly KRS 61.878(3) is now KRS 61.878(4)].
Reference is made by Ms. Greene to a letter Mr. Judd received from Ms. Margaret Hockensmith of your office, dated September 28, 1987, a copy of which we requested from Ms. Hockensmith. Ms. Greene states that Ms. Hockensmith's letter set forth the total number of private adoptions during the last two years, the total number of children who were placed in out of state homes, the number of out of state children who were placed in Kentucky homes and the number of attorneys who filed adoption applications. This information is not responsive to Mr. Judd's request in Ms. Greene's opinion, however.
OPINION OF THE ATTORNEY GENERAL
Among the public records which are excluded from public inspection in the absence of a court order authorizing inspection are those described as follows in KRS 61.878(1)(j): "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 199.570(1) relative to adoption records states as follows:
The files and records of the court during adoption proceedings shall not be open to inspection by persons other than parties to such proceedings, their attorneys, and representatives of the Cabinet except under order of the court expressly permitting inspection. Upon the entry of the final order in the case, the clerk shall place all papers and records in the case in a suitable envelope which shall be sealed and shall not be open for inspection by any person except on written order of the court, except that upon the written consent of the biological parents and upon written order of the circuit court all papers and records including all files and records of the circuit court during proceedings for termination of parental rights provided in KRS 199.615 shall be open to any adult adopted person who applies in person or in writing to the circuit court as provided in KRS 199.572. No person having charge of any adoption records shall disclose the names of any parties appearing in such records or furnish any copy of such records, except upon order of the court which entered the judgment of adoption. The clerk of the circuit court shall set up a separate docket and order book for adoption cases and these files and records shall be kept locked.
The above quoted statute clearly provides in part that in the absence of a court order no person having care, custody of supervision of any adoption records shall disclose the names of any parties appearing in those records or furnish copies of such records. The appealing party maintains that the documents and information requested are "statistical" or "directory" in nature.
KRS 61.878(2) provides that, "No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person." Webster's Third New International Dictionary (1963) defines "statistical" as "of, relating to, or dealing with statistics." That same source defines "statistics" in part as "a science dealing with the collection, analysis, interpretation, and presentation of masses of numerical data; a collection of quantitative data."
In OAG 83-371, a copy of which is enclosed, we concluded that class and grade statistical data of the Comprenhensive Tests of Basic Skills (a standardized test administered to 3rd, 5th, 7th and 10th grade students), as compiled by a county school system, are open to public inspection so long as those reports are not descriptive of any readily identifiable person.
The statute relative to the confidentiality of adoption records precludes the disclosure of the names of any parties appearing in the adoption records. A section of the Open Records Act requires the disclosure of statistical data not descriptive of any readily identifiable person. Some of the material sought by Mr. Judd does not come within the definition of statistical information and was properly excluded from inspection. However, your letter of September 18, 1987, in which you refused to provide any information of any kind relative to adoptions was overly broad in its approach to such questions and goes beyond the statutory provisions concerning the confidentiality of such material. An approach such as that taken by Ms. Hockensmith in her letter of September 28, 1987, in which she provided certain statistical data would be more in keeping with the requirements and the spirit of the Open Records Law and the provisions pertaining to the confidentiality of adoption records.
In connection with the above mentioned provisions and concepts and their application to the specific requests of Mr. Judd as set forth in his letter to you of September 3, 1987, we are of the opinion that you should reexamine your position, as set forth in your letter of September 18, 1987, and issue another letter to Mr. Judd in which you attempt to furnish him with relevant statistical data not descriptive of any readily identifiable person. For example, a listing of the location of adoptive parents by state and, perhaps, county; a listing of the location of the biological parents by state and, perhaps, county; and the age of the children adopted (rather than their specific birth dates) would be within the realm of reasonable statistical data. You were within the provisions of the applicable statutes when you refused to release the names of parties appearing in adoption records.
It is, therefore, the opinion of the Attorney General that the Open Records Act and the confidentiality provisions relative to adoption proceedings support your decision not to release the names of any persons appearing in adoption records but the Open Records Act also requires the disclosure of statistical information not descriptive of any readily identifiable person and such data relative to adoption and adoption proceedings should be made available by the public agency.
As required by statute, a copy of this opinion is being sent to the appealing party who is the legal counsel for the original requesting party. The appealing party, Kimberly K. Greene, Esq., has the right to challenge this opinion in the appropriate circuit court pursuant to KRS 61.880(5). You and the public agency have the same right to challenge this opinion in circuit court.