Request By:
Mr. Woody Dunn
Director
Division of Licensing and Regulation
Office of Inspector General
Cabinet for Human Resources
275 East Main Street
4th Floor - East
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Arletta Walker has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect and copy various documents in the possession of the Office of Inspector General.
In a letter to the Office of the Inspector General, dated November 19, 1987, Ms. Walker said in part, "It is our understanding that Licensing and Regulation has recently conducted an investigation and made a report concerning allegations of inappropriate restraint and seclusion at Northern Kentucky Treatment Center." She then asked that your office send her a copy of that report.
You advised her, in a letter dated December 15, 1987, that her request was being denied as the report in question "is excluded from the operation of Kentucky's Open Records Law by KRS 61.878(1)(j) and KRS 620.050(4)." A copy of your letter was not sent to the Attorney General's Office.
In her letter of appeal to this office, which was received January 14, 1988, Ms. Walker expressed her dissatisfaction with your handling of her request. She said that you did not respond within the proper time frame. She also maintains that while distribution of the results of such investigations must be limited to protect the identify of abused and neglected children, the intent of the legislation is not to protect the identify of parents or other persons who have abused children. She said she is requesting information which is general in nature and reflects upon the operation of a tax supported facility.
The undersigned Assistant Attorney General talked with you by telephone on January 20, 1988. You are the custodian of the records for the Office of Inspector General. The former Commissioner of the Department for Social Services had requested that an investigation be made at the Northern Kentucky Treatment Center relative to alleged incidents of child abuse and neglect. The Special Investigations Unit of the Inspector General's Office conducted the investigation and sent what you term its preliminary findings to the Commissioner's Office.
I also talked with Ms. Eugenia Jump of the Department for Social Services by telephone on January 20, 1988. She advised that such an investigation had been made and documents pertaining to it had been received by the Department for Social Services. Since the investigation had been made pursuant to the terms of KRS 620.050 the provisions of that statute set forth in subsection (4) apply to the availability of the report of the investigation.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the primary issue of whether the documents in question were properly withheld, your attention is directed to several statutory provisions relative to your letter of December 15, 1987, to Ms. Walker.
KRS 61.880(2) provides in part that a copy of the written response of the public agency denying inspection of a public record shall be forwarded immediately by the agency to the Attorney General. You never did send a copy of your letter of December 15, 1987, to this office.
KRS 61.880(1) states in part that a public agency, upon receiving a request to inspect records, shall determine within three working days after the receipt of the request whether to comply with the request and shall notify in writing the person making the request of its decision within the three day period. Your response was sent well after the time period set forth in the statute. Presumably, in the future, you and your office will adhere to the requirements set forth in KRS 61.880(1) and (2).
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) 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 situation and sets forth the conditions, circumstances and specific persons under which and to whom such material may be made available. It provides as follows:
(4) 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:
(a) Persons suspected of causing dependency, neglect or abuse, provided that in such cases names of informants shall be withheld unless ordered by the court;
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected or abused;
(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;
(d) Other medical, psychological, educational, or social service agencies, corrections personnel or law enforcement agencies, including the county attorney's office, that have a legitimate interest in the case;
(e) A non-custodial parent when the dependency, neglect or abuse is substantiated; or
(f) Those persons so authorized by court order.
The statute clearly requires that the Cabinet for Human Resources and the Department for Social Services withhold from all persons information acquired as a result of an investigation conducted pursuant to KRS 620.050 unless the requesting party can demonstrate that he or she satisfies one of the requirements set forth in KRS 620.050(4)(a) through (f). The requesting party, Ms. Walker, has not demonstrated that she comes within any of the statutory groups or situations which would authorize the release of the requested material to her. This is not a situation where the Cabinet or the Department have any discretion as they are prohibited by statute from releasing materials and information except in those specifically enumerated situations and circumstances covered by KRS 620.050(4)(a) through (f). See OAG 87-82, a copy of which is enclosed.
It is, therefore, the opinion of the Attorney General that while the public agency should have responded to the request for documents within the statutorily prescribed time period and a copy of the letter of denial should have been promptly sent to the Attorney General, the public agency's refusal to furnish records and documents to the requesting party relative to an investigation of an alleged instance of child abuse and neglect is supported by the provisions of KRS 61.878(1)(j) and KRS 620.050(4).
As required by statute, a copy of this opinion is being sent to the requesting party, Ms. Arletta Walker, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).