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, Department for Community Based Services (formerly Department for Social Services), properly relied on KRS 194.060(1)(a), incorporated into the Open Records Act by KRS 61.878(1)(l) 1, in denying Anthony Taylor's request for copies of records generated in the course of the investigation of Margaret Ann Houchens conducted by the Department. For the reasons that follow, we find that although the Department's reliance on KRS 194.060(1)(a) was misplaced, inasmuch as that statute was repealed in July, 1998, it could properly withhold the records on the basis of the successor statute, KRS 194B.060.
In the past, this office had consistently recognized that KRS 194.060(1)(a) and (b) authorized the then-Department for Social Services to withhold "all records and reports of the cabinet which directly or indirectly identify a client or patient or former client or patient" except where the person identified or his guardian consented to disclosure, or where disclosure was permitted under state or federal law. See, e.g., OAG 91-30, 93-ORD-78; 96-ORD-14. The Attorney General had thus recognized that a requester to whom disclosure could not be made under these terms and requirements of the statute, though he or she may have a legitimate interest in the case, was not entitled to inspect records and reports of the Cabinet which identified a current or former client. In so doing, we acknowledged that "Whatever injustice the law may work in such instances, we are constrained by the express language of the statute." 94-ORD-123, p. 2. It is upon this provision that the Department relies in denying Mr. Taylor's request for investigative records relating to Margaret Ann Houchens, his former wife and the custodial parent of his child.
In July 1998, KRS 194.060 was repealed. The statute was reenacted, in a slightly modified form, as KRS 94B.060, which now provides:
194B.060 Confidentiality of records and reports.
(1) 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:
(2) The cabinet may share pertinent information from within the agency's records on clients, current and former clients, recipients, and patients as may be permitted by federal and state confidentiality statutes and regulations governing release of data with other public, and quasi-public, and private agencies involved in providing services to current or former clients or patients subject to confidentiality agreements as permitted by federal and state law 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.
None of the 1998 modifications to the confidentiality provision formerly codified at KRS 194.060 alter the outcome we reached in our earlier decisions. As a client of the Cabinet, Ms. Houchens is entitled to the protection afforded by the statute, as are the records generated by the Department relative to her case. Unless Ms. Houchens consents to the release of records and reports of the Cabinet that directly or indirectly identify her, Mr. Taylor may not be permitted to inspect, or receive copies of, those records and reports. As before, the Cabinet and the Department are strictly prohibited by the unequivocal language of KRS 194B.060(1) from disclosing these records and reports.
It would appear that Mr. Taylor is chiefly concerned that the Department is not adequately monitoring his daughter's home environment. Mr. Taylor may wish to contact a Child Protective Specialist in the Department's Child Protection and Permanency Division, at (502) 564-2136, to discuss these concerns. No relief is available to him by means of records access under the Open Records Act.
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.
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.