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 Cabinet for Families and Children violated the Open Records Act in denying WHAS-11 reporter Mark Hebert's May 6, 1998, request for records pertaining to "the Department of Social Services final action on the case involving Angela Ash." Specifically, Mr. Hebert requested access to:
. any final report
. any correspondence to Ash's guardian or parent detailing final actions and the reasons for those actions
. initial complaint
. any investigative conclusions that may not be included in the above-mentioned documents.
Relying on KRS 61.878(1)(l) and KRS 209.140, the Cabinet refused to release any of the requested records to Mr. Hebert. Based on the authorities set forth below, we affirm the Cabinet's denial.
In a follow-up letter to this office dated May 22, 1998, assistant counsel for the Cabinet for Families and Children, Charles P. Lawrence, elaborated on the Cabinet's position. In addition to the arguments advanced by the Cabinet in its original denial of Mr. Hebert's request, Mr. Lawrence invoked KRS 194.060(1), relating to the confidentiality of records and reports maintained by the Cabinet which identify a past or present client or patient. Mr. Lawrence maintained that this provision, coupled with KRS 209.140, compel nondisclosure of the requested records. He explained:
The Cabinet for Families and Children takes the position that all information relating to the investigation, including the initiating complaint and any conclusions reached or actions taken constitute the entire adult protective services investigation process and file, which is kept on a given case, including the case of Angela Ash who is the subject of Mr. Hebert's request. These records are a part of a single continuum relating to the entirety of the investigation process, concerning which that it is the purpose of KRS 209.140, to keep confidential except for those specific exceptions addressed by KRS 209.140 which do not apply to WHAS 11 or Mr. Hebert.
Mr. Lawrence also argued, on behalf of the Cabinet, that because Ms. Ash was a recipient of Medicaid benefits at the time of her death, KRS 61.878(1)(k), 42 U.S.C. § 1396a (a)(7), and 42 CFR § 431.300-431.306 bar disclosure. "Whatever the Office of the Attorney General may view as to the non-Medicaid authorities as being insufficient to prevent disclosure, " Mr. Lawrence argued, "must yield to the broad prohibitions against disclosure of any information or records under Medicaid law." In closing, he noted that the fact that Ms. Ash is dead "does not alter the confidentiality afforded by codified law" absent a provision mandating expiration of the protection at death. We agree.
This office has consistently recognized that KRS 209.140, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), authorizes the Department for Social Services to withhold all information compiled in the course of an investigation of adult abuse except to certain enumerated classes of individuals or entities. That statute provides:
All information obtained by the department staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
1. Persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless ordered by the court;
2. Persons within the department or cabinet with a legitimate interest or responsibility related to the case;
3. Other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
4. Cases where a court orders release of such information[.]
In construing this provision, the Attorney General has stated that a requester who does not fall within one of these classes, though he or she may have a legitimate interest in the case, is not entitled to inspect records containing information of this nature. "Whatever injustice the law may work in such instances, we are constrained by the express language of the statute." 94-ORD-123, p. 2; see also, 96-ORD-6; 95-ORD-70; 94-ORD-82. KRS 209.140authorizes the Department to withhold records containing information it obtained in its investigation into the suspected abuse of Ms. Ash from all persons except those specifically identified. Mr. Hebert does not fall within one of these classes. Therefore, the Department properly denied his request.
The terms of KRS 209.140 are unambiguous: " All information obtained by the department staff or its delegated representative . . . shall not be divulged. " Its effect is mandatory. As we noted in OAG 88-4, in analyzing an analogous confidentiality provision relating to information gathered in the investigation of child dependency, neglect and abuse, "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" set forth in the statute. OAG 88-4, p. 4. The provision is intended to protect families affected by allegations of adult abuse, neglect, or exploitation, and in particular, the affected adults. As we have in the past, we must defer, within reason, to the Cabinet in its interpretation of its own confidentiality provisions. See, for example, 94-ORD-76. We do not believe that KRS 209.140 should be read so narrowly as to exclude complaints which prompt the investigation, records reflecting final action taken by the Department, and investigative materials. Nondisclosure of these records will promote the purposes for which the confidentiality provision was enacted by shielding the affected families and victims from unwarranted scrutiny and encouraging the reporting of suspected adult abuse, neglect, or exploitation by persons who wish to remain anonymous.
The fact that Ms. Ash is dead does not affect the outcome of this appeal. On at least two occasions the Attorney General has declined the invitation to declare that a confidentiality provision expires upon the death of the person whose records it protects. In 95-ORD-7 this office examined KRS 610.320(3), prohibiting the release of all law enforcement records regarding children who have not reached their eighteenth birthday, and held that that provision shielded from disclosure records pertaining to two juveniles who committed suicide. Acknowledging that there was "little to guide us in construing this provision," we reasoned:
The protection provided by KRS 610.320(3) is not expressly, or by implication, limited to living juveniles. Had the General Assembly intended this provision to be so restricted, it could have written a limitation into the law. In the absence of any such language limiting its application, we are wary of "supply[ing] an omitted provision." Hatchett [v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1960)]. Simply stated, although the Open Records Act may exhibit a bias in favor of disclosure, the Unified Juvenile Code does not, and it is this law which we are ultimately asked to construe.
95-ORD-7, p. 3, 4. Applying the principle set forth in Hatchett , above, we concluded that "KRS 610.320(3) does not exclude from its coverage situations where the juvenile has died. " 95-ORD-7, p. 5.
Similarly, in OAG 85-140 the Attorney General upheld the University of Kentucky's denial of a deceased student's academic records on the basis of KRS 61.878(1)(i) and (j), now codified as KRS 61.878(1)(k) and (l), 20 USC § 1232g(b)(l), and KRS 164.283(2). At pages 3 and 4 of that opinion, the Attorney General observed:
While this Office has stated in OAG 82-590, and other opinions, that the right of privacy is a personal one ending with the death of the person involved, those opinions are not inconsistent or in conflict with the University's denial of the request to inspect public records in this situation. Those privacy opinions did not involve specific federal and state statutory provisions dealing with the confidentiality of particular types of records. The exemptions to public inspection in this situation are based upon federal and state enactments dealing with education records rather than the general privacy exemption of the state's Open Record Law.
The federal and state statutes involved here relative to school records do not exclude from their coverage situations where the student may have died. The federal statute refers to educational records while the state statute refers to all student academic records. We cannot read into those statutes exemptions or exceptions which do not exist.
See also, Williams v. Commonwealth, Ky. App., 829 S.W.2d 942 (1992)(holding that the psychiatrist-patient privilege survives the death of the patient since "the statute does not provide any exception ? .); OAG 92-24 (holding that the psychiatrist-patient privilege survives the death of the patient and the coroner should not publicly disseminate records of psychiatrists treatment obtained under his KRS 72.415 authority); 94-ORD-123 (affirming Department for Social Service's denial of daughter's request for records relating to its investigation into the abuse, neglect, and ultimate death of her mother). We therefore find that this line of authority is controlling.
Inasmuch as we have determined that KRS 209.140, incorporated into the Open Records Act by KRS 61.878(1)(l), bars release of the records which Mr. Hebert seeks to all but a narrow class of individuals and entities, we need not address the application of KRS 194.060(1) and 42 USC § 1396a (a)(7) to those records. 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.