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 properly relied on KRS 61.878(1)(a), in addition to KRS 194B.060 and KRS 620.050(4), which are incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 in denying Terry Katt's July 29, 1999, request for "a copy of the Children's Protective Services Report from Kentucky" relating to two children identified in that request and their mother. Based on the authorities set forth below, we affirm the Cabinet's denial of Mr. Katt's request.
In a letter to this office dated October 1, 1999, assistant counsel for the Cabinet for Families and Children, Hiren B. Desai, elaborated on the Cabinet's position. Citing the language of KRS 194B.060, Mr. Desai argued that the Cabinet was foreclosed from releasing records in its possession that directly or indirectly identified the children or their mother without proper authorization. Moreover, he noted, KRS 620.050(4) prohibits disclosure of records and information relating to the Cabinet's investigation of suspected child abuse, neglect, or dependency to all but a narrow class of individuals and entities enumerated in that statute. On behalf of the Cabinet, Mr. Desai asserted:
Mr. Katt does not meet any of the [] requirements [set forth in KRS 620.050(4)]. In fact, to the best of the Cabinet's knowledge, [Mr. Katt] has never resided in Kentucky, he has never been an alleged perpetrator in any child protective investigations in Kentucky, and he clearly has no legal relationship with the aforementioned children or their mother.
Relying on the privacy exception to the Open Records Act, as well as the confidentiality provisions found in the Kentucky Revised Statutes, Mr. Desai reaffirmed the Cabinet's denial of Mr. Katt's request. We concur with the Cabinet in its view that KRS 194B.060 and KRS 620.050(4) operate as an absolute bar to disclosure of the records identified in Mr. Katt's request. Because these confidentiality provisions are controlling, we do not address the privacy argument advanced by the Cabinet in further support of its position.
In the past, this office had consistently recognized that KRS 194.060(1)(a) and (b) authorized the then-Department for Social Services 2 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.
In July 1998, KRS 194.060 was repealed. The statute was reenacted, in a slightly modified form, as KRS 194B.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 apparent clients of the Cabinet, these children and their mother are entitled to the protection afforded by the statute, as are the records generated by the Department relative to their case. Unless their mother or legal guardian consent to the release of records and reports of the Cabinet that directly or indirectly identify them, Mr. Katt 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.
KRS 61.878(1)(l) also operates in tandem with KRS 620.050(4) to insure the confidentiality of information gathered by the Department in cases of reported dependency, neglect, and abuse. KRS 620.050(4) establishes certain circumstances under which, and classes of persons to whom, such information may be made available. The statute provides:
(4) The report of suspected child abuse, neglect, or dependency and 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;
(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 service agencies, child care administrators, corrections personnel, or law enforcement agencies, including the county attorney's office, the coroner, and the local child fatality response team, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect, or abuse is substantiated;
(f) Members of multidisciplinary teams as defined by KRS 620.020 and which operate pursuant to KRS 431.600; or
(g) Those persons so authorized by court order.
Under the express terms of this statute, the Department must withhold all information acquired as a result of an investigation conducted pursuant to KRS 620.050 unless the requester can demonstrate that he falls within one of the excepted categories codified at KRS 620.050(4)(a) and (g). Although Mr. Katt was convicted of sexual assaulting these children in Michigan, he has never been an alleged perpetrator in any KRS 620.050 child protective investigations conducted in Kentucky, and has no legal relationship to the children. Mr. Katt has not established that he falls within one of the statutorily recognized exceptions to the general rule of confidentiality, or that his particular situation warrants the release of the disputed records. Insofar as none of the criteria set forth in KRS 620.050(4) are satisfied, Mr. Katt is not entitled to receive a coy of the Department's report. See, OAG 87-82; OAG 91-93; OAG 92-53; 97-OMD-181.
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.
2 Now referred to as the Department for Community Based Services.