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
Mr. Kenneth W. Carpenter has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect and copy various documents in the possession of the Department for Social Services.
This office has not been furnished with a copy of Mr. Carpenter's letter of request to your department but his letter was obviously received as you responded to it. He apparently requested a full disclosure of the records concerning himself and his daughter, Kelly Renee Carpenter.
In your letter to Mr. Carpenter, dated November 2, 1987, you advised him that his attorney reviewed the material which the statutes permitted him to see. There were some deletions and these consisted of the referral sources and material not directly relating to the investigation and findings of the department relative to an accusation of child abuse. In support of your decision to delete from his inspection the material in question you cited KRS 61.878(1)(a) and (j) and KRS 620.050(4).
In his letter of appeal to this office Mr. Carpenter states that the deleted information is false and inaccurate as it relates to him, his daughter and his deceased wife. As the parent and legal guardian of his daughter and the legal administrator of his deceased wife's estate, he maintains he is entitled to see and review everything in the department's files concerning him, his daughter, and his deceased wife. He denies that the deleted material did not have a direct bearing on the department's investigation and subsequent findings.
The undersigned Assistant Attorney General talked by telephone with Ms. Eugenia Jump of your staff on December 1 and 2, 1987, concerning this request to inspect and copy documents. This matter began as a child abuse case involving Mr. Carpenter's daughter in which Mr. Carpenter was the alleged perpetrator of the abuse. Abuse was substantiated and guardianship was transferred but Mr. Carpenter was not prosecuted.
As the person suspected of causing the abuse Mr. Carpenter was furnished with information obtained by the department except that information pertaining to names of informants was withheld pursuant to KRS 620.050(4)(a). In addition, information obtained by the department which was not related to the child abuse situation and which constituted the opinions and observations of persons not associated with the department was also withheld. In the latter category were one or two sentences from a statement made by a judge, the rest of the statement having been made available, and several sentences from a statement made by one of the informants, those sentences not having any connection with the child abuse situation.
OPINION OF THE ATTORNEY GENERAL
Among the public records which shall be excluded from public inspection in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(j) as, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 620.050(4)(a) is a 1986 enactment of the General Assembly, effective July 1, 1987. It deals with the confidentiality of information gathered by the Cabinet for Human Resources in dependency, neglect and abuse situations and provides as follows:
All information obtained by the Cabinet or its delegated representative, as a result of an investigation made pursuant to this section, shall not be divulged to anyone except:
Persons suspected of causing dependency, neglect or abuse, provided that in such cases names of informants shall be withheld unless ordered by the court;
Clearly, the Cabinet for Human Resources and the Department for Social Services are authorized (in fact, they are required) to withhold from the public, including the alleged perpetrator of the abuse, the names of informants in situations of alleged child abuse.
While he was not given the name of the informants, Mr. Carpenter, as the alleged perpetrator of the child abuse, was given information obtained by the Cabinet and the Department for Social Services in connection with the investigation of the child abuse matter. He is clearly entitled to information gathered in connection with the child abuse investigation but he is not entitled under the provisions of KRS 620.050 to material not related to the investigation of the child abuse matter and which played no part in the findings of the state agency relative to the allegations of abuse.
Included among those public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(a), (g) and (h):
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwearranted invasion of personal privacy;
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(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is entitled to give notice of final action of a public agency;
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
A statement was obtained from a judge and a majority of that statement was made availabale to Mr. Carpenter. He was not permitted to see one or two sentences from that statement in which the judge set forth his personal opinions, observations and recommendations relative to matters involving Mr. Carpenter but which were not related to the child abuse investigation concerning Mr. Carpenter and his daughter. These expressions of personal opinion and recommendation are preliminary in nature. While they were obtained during the course of an investigation they are unrelated to the investigation and the findings made as a result of that investigation. See OAG 87-24 and OAG 87-10, copies of which are enclosed.
The concept of privacy is discussed in OAG 87-37, a copy of which is enclosed. Since the sentences in question had no bearing upon the matter under investigation, the public agency could also utilize the exception to public inspection set forth in KRS 61.878(1)(a) pertaining to an unwarranted invasion of personal privacy and exclude that portion of the judge's statement from Mr. Carpenter's inspection.
For the reasons discussed above and in reliance upon the provisions of KRS 61.878(1)(a), (g) and (h) the department could also refuse the request to inspect that portion of an informant's statement dealing with matters unrelated to the child abuse investigation and which merely reflected his personal opinions and observations.
As far as the right of a non-state employee to obtain access to records relating to himself, note the provisions of KRS 61.884 that, "Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878." KRS 61.878, in part, sets forth those documents which a public agency may exclude from public inspection in the absence of a court order authorizing inspection. Thus, the right of inspection under KRS 61.884 is somewhat limited. See OAG 86-81, copy enclosed.
In conclusion, it is the opinion of the Attorney General that the Department for Social Services acted within the applicable statutory provisions when it refused to make available for inspection to the alleged perpetrator of child abuse the names of informants and those portions of the statements of a judge and an informant wherein those parties set forth personal opinions, observations and recommendations not related to the child abuse investigation and the findings resulting from that investigation.
As required by statute, a copy of this opinion is being sent to the requesting party, Kenneth W. Carpenter, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).