Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Christy Halloran in connection with her attempts to secure copies of various documents from the Cabinet for Human Resources, Department for Social Services, hereinafter referred to as DSS.
On March 21, 1994, Ms. Halloran submitted a request to DSS seeking any and all records pertaining to the ongoing child protective services case opened by DSS as a result of the substantiated sexual abuse complaint against R.T.R. and the placement of T.R. She further requested records pertaining to the review of this case by a particular social worker.
Commissioner Peggy Wallace responded to Ms. Halloran in a letter dated March 24, 1994, and in part cited KRS 620.050(4) relative to the release of information obtained by DSS. She stated that since Ms. Halloran is not the custodial parent, the statute limits what she can receive:
The statute specifically requires the Cabinet to divulge only information obtained as a result of an investigation made pursuant to this chapter to a noncustodial parent. That information which related to the investigation and its results was previously disclosed to you.
Ms. Halloran submitted a letter of appeal to the Attorney General, dated April 12, 1994, stating in part that she is entitled to the materials requested because a noncustodial parent is entitled to information obtained by DSS when the dependency, neglect or abuse is substantiated. In her opinion, there is substantiated evidence of abuse.
Elaine Campbell, Records Section Supervisor for DSS, advised Ms. Halloran, in a letter dated April 13, 1994, that, "Your request is being reconsidered. " Ms. Campbell also referred to three documents which have previously been made available to Ms. Halloran.
In a letter dated April 21, 1994, and directed to this office, Ms. Halloran in part reiterated her assertion that she is entitled to the materials requested as there is substantiated evidence of abuse.
This office, in a letter to Ms. Halloran and Ms. Campbell, dated May 20, 1994, requested additional information from the parties. Ms. Campbell was asked about the status of the reconsideration and the existence of substantiated reports of abuse. Ms. Halloran was asked about the precise issue presented by the appeal.
In a letter dated May 26, 1994, Ms. Halloran said the issue is the denial of her access to records pertaining to the ongoing child protective services case opened by DSS as the result of substantiated evidence of abuse.
Ms. Campbell's letter to the Attorney General, dated May 27, 1994, said in part as follows:
Due to confusion over which records Ms. Halloran had requested, Ms. Halloran's request has been reconsidered, however, only insofar as it alleges that she has not been provided copies of substantiated sexual abuse complaints. When reconsidering Ms. Halloran's request, each investigation involving the child was reviewed. On April 13, 1994, Ms. Halloran was advised that she had been provided copies of unsubstantiated complaints and investigations dated March 2, 1989. Those reports were furnished to Ms. Halloran in keeping with KRS 620.050[4](b) because she was [the] custodial parent at that time. Because Ms. Halloran was the custodial parent, she was entitled to copies of those reports.
Ms. Campbell's letter further states:
Since January 2, 1991, there have been no substantiated complaints of abuse concerning [T. R.]. Because Ms. Halloran is no longer the custodial parent, KRS 620.050 precludes the disclosure of records of unsubstantiated reports and investigations to her concerning [T. R.].
KRS 61.878(1)(k), formerly codified as KRS 61.878(1)(j), states that among the exceptions to public inspection are, "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)(e) states:
All information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
A noncustodial parent when the dependency, neglect or abuse is substantiated [.]
The record indicates that Ms. Halloran has received a copy of a report dated January 2, 1991 "which constituted the most recent substantiated complaint." There have been no substantiated complaints of abuse concerning T.R. since January 2, 1991, according to DSS. Ms. Halloran apparently lost custody sometime in late 1992 and as the noncustodial parent she is now only entitled to substantiated reports of abuse.
In 92-ORD-1502, OAG 92-53, and OAG 92-54, copies enclosed, we upheld DSS in its reliance upon KRS 620.050(4) and KRS 61.878(1)(k) to deny access to records pertaining to child abuse. The Cabinet for Human Resources and DSS are required to withhold from all persons information acquired as a result of an investigation conducted under KRS Chapter 620 unless the requesting party can demonstrate that he or she satisfies one of the requirements set forth in KRS 620.050(4).
Since she became the noncustodial parent Ms. Halloran is only entitled to documents involving substantiated instances of abuse.
DSS acted properly in denying Ms. Halloran's request for access to documents relative to child abuse as the agency has stated that there have been no substantiated instances of abuse since she became the noncustodial parent.
Ms. Halloran may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed in circuit court pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.