Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the response of the Cabinet for Families and Children to the July 28, 1998 open records request of Christie J. Foster for copies of any child protection records the agency might have relating to Shontez J. Carr.
By letter dated July 28, 1998, Ms. Elaine Campbell, Records Section Supervisor, Department for Family Based Services, responded on behalf of the Cabinet to Ms. Foster's request. In her response, Ms. Campbell stated:
This letter is in response to your open records request for information concerning the above. Our records are all confidential pursuant to KRS 61.878(1)(l) and KRS 194.060. Therefore, I will need a statement from Mr. Carr's custodial parent giving me permission to share any information we may have with you or a court order before I conduct a search or provide you with any information.
In her letter of appeal, Ms. Foster states that her law firm is defending a personal injury action brought on behalf of Shontez Carr and believes that his mother may be partially to blame for her son's injury. Ms. Foster stated she further believes that the requested Cabinet records have pertinent information related to the ongoing investigation of the personal action claim.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Ms. Foster's letter to the Cabinet. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Charles P. Lawrence, Assistant Counsel, Office of the General Counsel, provided this office with a response to the issues raised in the letter of appeal. In his response, Mr. Lawrence elaborated on the agency's initial response. Citing KRS 194.060 and KRS 620.050(4), Mr. Lawrence stated:
These provisions are currently in effect and are applicable to the records at issue. Copies of these statutes are attached. The party who is requesting child protective services records in this appeal does not fit within the scope of the allowable exceptions and, therefore, KRS 61.878(1)(l) which prohibits the disclosure of records made confidential by enactment of the General Assembly is applicable. See also 95-ORD-53. In the Cabinet's reply of July 28, 1998, to the initial request, the custodian of the subject records properly pointed out that a court order, or a signed release from the custodial parent would be required in order to provide the records to Ms. Foster.
One additional factor which prevents the release of these records relates to the language at KRS 61.878(1) which reads:
(Emphasis added.)
Ms. Foster has indicated that the requested records will be used in civil litigation involving a personal injury action of Shontez J. Carr, etc. vs. Thorn EMI , Jefferson Circuit Court, Division 12, Civil Action No. 97-CI-00219. The underlined language of KRS 61.878(1) was added pursuant to the 1992 Ky. Acts Ch. 163, Section 5 to prevent litigants from using the Open Records Act to avoid civil discovery rules. See 94-ORD-19. Accordingly, the subject open records request and appeal must be denied for this reason as well.
We are asked to determine whether the response of the Cabinet was proper. For the reasons which follow, we conclude the Cabinet's response was consistent with the Open Records Act and prior decisions of this office.
The Cabinet, in its initial response, stated that the requested records were confidential under KRS 61.878(1)(l) and KRS 194.060 and release of the records would require a statement from the patient's custodial parent or a court order before the requested records could be released.
KRS 61.878(1)(l) excludes from the mandatory disclosure provisions of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 194.060(1) provides:
The secretary shall develop and promulgate administrative regulations that protect the confidential nature of all records and reports of the cabinet that directly or indirectly identify a client or patient or former client or patient of the cabinet and that insure that these records are not disclosed to or by any person except as, and insofar as:
(a) The person identified or his guardian, if any, shall give consent; or
(b) Disclosure may be permitted under state or federal law.
This office has previously recognized that the General Assembly enacted KRS 194.060(1) in order to prohibit or restrict publication or disclosure of records and reports which directly or indirectly identify a current or former client or patient of the Cabinet. 93-ORD-78; OAG 91-30. The only exceptions to this prohibition are found at KRS 194.060(1)(a) and (b) and KRS 194.060(2), which authorize release of Cabinet records if the person identified in the records or his guardian gives consent, if state or federal law permits disclosure, or the records are to be shared with other public, quasi-public, and private agencies involved in providing services to current or former clients or patients subject to confidentiality agreements "if those agencies demonstrate a direct, tangible, and legitimate interest in the records. In all instances, the individual's right to privacy is to be respected." KRS 194.060(2).
The Cabinet asserts that the child protective services records requested by Ms. Foster relate to a client or patient of the Cabinet and thus fall within those records required to be kept confidential under KRS 194.060(1). Ms. Foster fails to demonstrate that she falls within any of the statutorily recognized exceptions of KRS 194.060, set out above. Thus, the Cabinet properly relied upon that statute in denying Ms. Foster access to the records.
Moreover, as additional support for its denial, the Cabinet also relied upon KRS 620.050(4), which provides:
a. A noncustodial parent when the dependency, neglect or abuse is substantiated;
a. Members of multidisciplinary teams as defined by KRS 620.020 and which operate pursuant to KRS 431.600; or
a. Those persons so authorized by court order.
This office has held in prior opinions that KRS 620.050(4) requires that the Cabinet withhold from all persons information acquired as a result of an investigation conducted pursuant to KRS 620.050 unless the requesting party can demonstrate he or she satisfies one of the requirements set forth in KRS 620.050(4). 95-ORD-53; 92-ORD-1502; OAG 88-4; and OAG 87-82.
In his response to the letter of appeal, Mr. Lawrence stated the request was properly denied because the party who is requesting child protective services records in this appeal did not fall within the exceptions listed in either KRS 194.060 or KRS 620.050(4). Moreover, he reiterated a court order, or a signed release from the custodial parent would be required in order to provide the requested records to Ms. Foster.
Accordingly, since Ms. Foster does not establish that she falls within the exceptions listed within the above cited statutes and had neither the custodial parent's permission nor a court order for release of the requested records, we conclude the Cabinet properly denied Ms. Foster's request under authority of KRS 61.878(1)(l), KRS 194.060(1), and KRS 620.050(4). Because the foregoing is dispositive of this appeal, we need not address other grounds set out as a basis for denial of the requested 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.