Request By:
Ben Fannin, Director
Division of Disability Determinations
Department for Health Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621-0001
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
William B. Mains, Esq., has appealed to the Attorney General, pursuant to KRS 61.880, your denial of his request for information and statistical records.
In a letter to you dated November 1, 1990, Mr. Mains stated he would like to receive information for calendar years 1988, 1989 and 1990 concerning the following:
1. The number of Social Security Disability and Supplemental Security Income Disability (Title II and XVI) applications processed for each of the years mentioned above.
2. The total number of Title II/XVI applications approved for each of the same periods.
3. The number of Title II/XVI applications denied for the same periods, and a summary of the reasons why denied. Also please state specifically the number of cases for each period which were denied on the basis of nonseverity or 'slight impairment.'
You replied to Mr. Mains in a letter dated November 8, 1990, and advised him as follows:
Your request, pursuant to the Kentucky Open Records Act, must be denied because the records requested are federal records. Disclosure of these federal records are governed by the Federal Freedom of Information and Privacy Acts and not the Kentucky Open Records Act. See SSA Program Circular No. 03-90-OD, July 5, 1990, and Program Operations Manual System (POMS) DI 30530.001, attached hereto. Any request relating to the above-referenced records must be made pursuant to the Federal Freedom of Information Act.
In his letter of appeal to this office, Mr. Mains states in part that he is merely requesting "statistical information" and not any specific information relative to individual claimants. He also states that your division, pursuant to federal law and an agreement with the United States Department of Health and Human Services, makes disability determinations for Kentucky residents who apply for Social Security Disability Insurance benefits and Supplemental Security Income Disability benefits.
OPINION OF THE ATTORNEY GENERAL
Kentucky's Open Records Act (KRS 61.870 to KRS 61.884) has a section [KRS 61.878(2)] which states that no exemption shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.
The Program Operations Manual System, in a section designated 30530.001 B.1.(i), also has a provision relative to the release of statistical data which has been compiled in a format which does not identify or potentially identify specific individuals. Subsection A. of that provision, however, states that the Director, Office of Information, Office of Governmental Affairs, is the SSA Freedom of Information Officer. Generally, only the Director may determine whether to release or withhold Social Security Administration (SSA) records, including records in the regions.
In a document designated "SSA Program Circular," No. 03-90-OD, dated July 5, 1990 (U.S. Department of Health and Human Services, Social Security Administration, Office of Policy), the following appears:
The purpose of this program circular is to remind all DDS personnel to comply with DI 30530.001 when handling requests for SSA records (i.e., records which the DDS has in its possession solely for the purpose of administering SSA programs) from the public. This procedure discusses who is authorized to disclose SSA records and under what circumstances those disclosures can be made.
DDSs are likely, especially in litigation, to receive Freedom of Information Act (FOIA) requests for SSA records based on State FOIA laws. As all records which the DDS has in its possession solely for the administration of our program are considered to be federal records, disclosure of these records are governed by the Federal Freedom of Information and Privacy Acts and not State disclosure laws.
Since the federal government has determined that records in the possession of a state agency solely for the purpose of administering Social Security Act programs are federal records and that disclosure of such records is governed by the federal Freedom of Information Act, rather than by a state's Open Records Act, this office is not the appropriate forum to review and consider whether the requesting party is entitled to the information, materials and statistical data he has requested. We can only conclude that you properly advised the requesting party that requests for the material in question must be initiated under the appropriate federal statutes, enactments and regulations.
As required by statute, a copy of this opinion is being sent to the requesting party, William B. Mains, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.