Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County government properly relied on KRS 620.050(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in partially denying Lexington Herald-Leader staff writer John Cheves's February 9, 1998, request for access to "all police files regarding criminal abuse charges against Donna Bryant Johnson (D.O.B. 5-15-50) . . . including notes, letters, names or other written or photographic evidence collected as part of the investigation." For the reasons set forth below, we affirm LFUCG's partial denial of Mr. Cheves's request.
In its response to Mr. Cheves's request, LFUCG acknowledged that the Division of Police's investigation of this matter was closed, and that the Division's files were available for inspection. Nevertheless, with regard to certain specifically identified records, and items of information appearing in otherwise nonexempt records, the Urban County Government continued to rely on the cited exemption, along with KRS 61.878(1)(c) and (i) and KRS 17.150. LFUCG declined to address the issue of Mr. Cheves's right to inspect an anonymous letter sent to Dr. Peter Flynn, superintendent of the Fayette County Schools, and forwarded to the Division of Police. Citing OAG 83-342, LFUCG argued that it is the "casual possessor" of this letter, and not its official custodian for purposes of determining the propriety of release.
The specific records withheld consisted of photographs of the juvenile victim, the Cabinet for Families and Children's JC-3 report (also known as a DSS-115 report), and the letter to Dr. Flynn. In addition, LFUCG indicated that it would mask the names of juveniles which appear in otherwise nonexempt records as well as the names of witnesses and informants, and personally identifiable information relating to them, such as telephone numbers, social security numbers, dates of birth, and home adoresses.
The Herald-Leader likens this open records dispute to the appeal which culminated in this office's decision in 93-ORD-42. There, the Attorney General held that unless a law enforcement agency:
is acting as the Cabinet's designated representative or conducting a joint investigation into allegations of dependency, neglect, or abuse, as opposed to independently conducting an investigation into possible criminal charges against an adult, KRS 620.050(4) does not operate to authorize nondisclosure of the records it compiles.
93-ORD-42, p. 8. It was this office's view that KRS 620.050(4) "was not intended to protect the identities of adults charged with violations of the criminal laws." Id. The Attorney General ordered disclosure of all records in the law enforcement agency's investigative file except for portions of the records revealing the identities of the juvenile victims. These entries were deemed exempt under KRS 61.878(1)(a). The Herald-Leader maintains that this decision is controlling.
LFUCG responds that this dispute is more closely akin to the appeal giving rise to OAG 91-173, in which the Attorney General upheld a law enforcement agency's reliance on KRS 620.050(4) to withhold documents obtained by it as a result of a joint investigation with the Cabinet. In OAG 91-173, the investigations were "initiated on the request of and in conjunction with [a Cabinet] social worker. . . ." OAG 91-173, p. 11. At page 11 of that opinion, we observed:
It has already been well established in prior opinions of this Office that the Cabinet . . . may deny inspection of their own records, under similar factual situations, by relying upon KRS 61.878(1)[(l)] and KRS 620.050(4). OAG 91-33; OAG 88-4; OAG 87-82. This Opinion merely confirms the statutory language of KRS 620.050(4) which specifies that information, which obviously includes information contained in records, shall not be divulged by anyone if obtained by the Cabinet . . ., even if the information was obtained through a joint investigation with the [law enforcement agency] .
LFUCG maintains that OAG 91-173 is dispositive of this appeal.
In a letter to this office dated March 30, 1998, William K. Moore, Jr., general counsel for the Cabinet for Families and Children, "concur[red] fully in the analysis and arguments set forth by Lexington-Fayette County Urban [sic] Government," and urged the Attorney General to uphold its partial denial of the Herald-Leader's open records request. In a follow-up letter dated April 7, 1998, he explained that the investigating worker in the Department for Social Services contacted the Crimes Against Children Unit when she determined that the child's injuries were serious, and that that Unit of the Division of Police then participated in a joint investigation of this matter.
Although numerous arguments are advanced by the parties in support of their respective positions, we believe that the central question in this appeal is the propriety of LFUCG's reliance on KRS 620.050 (4). Resolution of this question turns on whether LFUCG's Division of Police was acting as the Cabinet's delegated representative in its investigation of the alleged abuse and neglect of a child. It is the opinion of this office that the JC-3 report, coupled with Mr. Moore's March 30 and April 7 letters to this office, provides sufficient factual information to establish that LFUCG was the Cabinet's delegated representative, and that it was engaged in jointly investigating allegations of abuse and neglect within the scope of KRS 620.050(4).
KRS 620.050(4) provides:
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) 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 services agencies, corrections personnel or law enforcement agencies, including the county attorney's office, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect or abuse is substantiated.
This provision operates as an absolute bar to disclosure of information "obtained by the Cabinet or its delegated representative, as a result of an investigation made" under Chapter 620. In construing this provision, the Attorney General has recognized that unless the requester can demonstrate that he falls within one of the excepted classes of individuals or entities codified at KRS 620.050(4)(a) through (g), neither the Cabinet nor its delegated representative may release the information to him. See, e.g., OAG 87-82; OAG 88-4; 92-ORD-1502; 95-ORD-53.
Our review of the JC-3 report indicates that this investigation was referred to the Crimes Against Children Unit of the Division of Police on October 20, 1997, by a Cabinet social worker, with directions that it be assigned immediately. Although we cannot disclose the actual contents of the report, it is clear that the Cabinet's investigation was initiated by a telephone call to central intake and not by the anonymous letter sent to Superintendent Flynn, and that it immediately requested the assistance of the Division of Police in its investigation. On this basis, we conclude that OAG 91-173 is controlling, and that LFUCG properly withheld the disputed records and information under authority of KRS 620.050(4). Since Mr. Cheves does not fall within one of the excepted classes of individuals found in that provision, he is not entitled to review these records.
In our view, 93-ORD-42 is distinguishable from the appeal before us. There we emphasized that the law enforcement agency conducting the criminal investigation "[did] not assert, nor [was] there evidence to suggest" that it was operating jointly with the Cabinet. " 93-ORD-42, p. 7. We specifically noted that if the agency was "acting as the Cabinet's designated representative in conducting a joint investigation into allegations of dependency, neglect, or abuse, as opposed to independently conducting an investigation into possible criminal charges against an adult, " KRS 620.050(4) would operate to prohibit disclosure of the records compiled. 93-ORD-42, p. 8. Here, LFUCG asserts, and the evidence confirms, that the Division of Police and the Cabinet were conducting a joint investigation and that they obtained their information jointly. 93-ORD-42 is inapposite.
Invocation of KRS 620.050(4) is appropriate only where the law enforcement agency from which investigative records are requested presents clear evidence that: 1) it was acting as the Cabinet's delegated representative; 2) it was conducting an investigation under Chapter 620; and 3) the information requested was obtained in the course of its investigation. Where each of these requirements are met, the statute operates not as a permissive exemption to public inspection of its records, but as an absolute bar to disclosure of all information in those records. Violation of the statute by release of confidential records has its consequences. See KRS 620.990(1) establishing penalties for violation of the provisions of Chapter 620. LFUCG released much of its investigative file. This tension between the statute's clear mandate and LFUCG's actions leads us to question whether the Division of Police was, in fact, acting as the Cabinet's delegated representative. Nevertheless, LFUCG has affirmatively stated that the Division of Police was acting in this capacity, and this statement finds support in the JC-3 report, as well as William K. Moore's letters to this office confirming LFUCG's position. Our review under KRS 61.880(2) is restricted to the facts as they presented to us, and these are the definitive facts. The implications of LFUCG's decision to release much in its investigative file is simply beyond the scope of our review.
Having resolved this appeal on the basis of KRS 620.050(4) and KRS 61.878(1)(l), we see no need to address the propriety of LFUCG's reliance on KRS 61.878(1)(a) and (i) and KRS 17.150. A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.