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, Division of Child Support Services, violated the Open Records Act in denying Dr. John P. Hollis's April 1, 2003 request for information relating to "wage assignment payers . . . handled by the Domestic Relations Officer of Woodford County as of July 1, 2002" 1 on the basis of KRS 205.796, incorporated into the Act by operation of KRS 61.878(1)(l). For the reasons that follow, we affirm the Cabinet's denial of Dr. Hollis's request.
In supplemental correspondence directed to this office following commencement of Dr. Hollis's appeal, Assistant Counsel Jon R. Klein elaborated on the Cabinet's position in a well-researched and well-reasoned response. He explained that the Cabinet's Division of Child Support exists as Kentucky's "state disbursement unit" under authority of 42 U.S.C. § 654b(a)(1) and KRS 205.712, and that the provision upon which the Cabinet relied in denying Dr. Hollis's request, KRS 205.796, prohibits disclosure of "any information referred to in KRS 205.715 to 205.800 2 . . . to any public or private agency or individual . . . ." Mr. Klein noted that Dr. Hollis "did not include anything in his request that indicated he is authorized to receive information in accordance with KRS 205.796."
As an additional basis for the Cabinet's denial of Dr. Hollis's request, Mr. Klein relied on KRS 403.211, relating to actions to establish or enforce child support. Specifically, he noted that KRS 403.211(11) provides that "[in] any case administered by the cabinet, information received or transmitted shall not be published or be open for public inspection . . . [except that] necessary information and records may be furnished as specified in KRS 205.175." 3 Mr. Klein again invoked KRS 61.878(1)(l), incorporating KRS 403.211(11) into the Open Records Act, and noted that Dr. Hollis "did not allege that he met any of the specifications authorized to receive information about child support cases administered by the Cabinet. "
Assuming arguendo that these provisions were deemed inapplicable, Mr. Klein maintained that existing legal authority supports the position that "child support information is generally considered to be of a personal nature, such that disclosure of the information would constitute a clearly unwarranted invasion of personal privacy." Citing Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), Mr. Klein observed:
"At its most basic level, the purpose of disclosure focuses on the citizen's right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that reveals little or nothing about an agency's own conduct." The information sought by [Dr.] Hollis is private information about private citizens, and has nothing to do whatsoever with the Cabinet's conduct.
Acknowledging that the information sought was, in fact, information available in court records, Mr. Klein concluded that the Cabinet "does not maintain a list of wage assignment payers from Woodford County," that the Cabinet is not obligated to create a list or to search through voluminous existing records to compile the information, and that the Cabinet properly declined "to do [Dr. Hollis's] legwork for him." We find each of these arguments highly persuasive and affirm the Cabinet's denial of Dr. Hollis's request.
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." This provision operates in tandem with both KRS 205.796 4 and KRS 403.211(11) 5 to insure the confidentiality of "information referred to" by the Cabinet's Division of Child Support Enforcement and "information received or transmitted" in cases administered by the Cabinet except as otherwise provided in KRS 205.175 and elsewhere in Chapter 205.
Although we are unable to locate any authorities directly supporting this position, we find that the language of these provisions is clear on its face: it proscribes disclosure of "any information" and "information received or transmitted" in cases administered by the Cabinet, notwithstanding the fact that some of that information is accessible through court records, unless the requester can demonstrate that he or she otherwise qualifies for access to the records under KRS 205.175 or another provision of Chapter 205. The Cabinet is strictly prohibited by the unequivocal language of these provisions from disclosing the information Dr. Hollis seeks. Accord, 99-ORD-197 (affirming Department for Social Services' denial of request for records directly or indirectly identifying a client or patient or former client or patient on the basis of KRS 194.060(1)(a) and (b), incorporated into Open Records Act by KRS 61.878(1)(l)); 03-ORD-70 (affirming Department for Community Based Services' denial of request for information obtained by the Cabinet for Families and Children, or its delegated representative, as a result of an investigation into suspected child abuse, neglect, or dependence on the basis of KRS 620.050(5), incorporated into the Open Records Act by KRS 61.878(1)(l)). Compare 94-ORD-154 (holding that agency failed to satisfy its statutory burden of proof in denying access to child support information without citing applicable state confidentiality provisions). As Mr. Klein correctly observes, Dr. Hollis has made no attempt to establish that he qualifies for access under KRS 205.175 or under any other provision of Chapter 205.
Having affirmed the Cabinet on this basis, we will not unnecessarily lengthen this decision with an analysis of its invocation of KRS 61.878(1)(a) as an additional basis for denying Dr. Hollis's request, but note that the Cabinet properly characterized that request as an improperly framed request for information, as opposed to a request for an existing public record, and correctly asserted that it was under no obligation to honor that request. See discussion at page 9 of 02-ORD-240 (attached). We make this observation for the purpose of placing Dr. Hollis on notice that future requests must be framed as requests for records, rather than as requests for information to be compiled. We conclude that the overwhelming weight of legal authority supports the Cabinet's position on this issue.
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 Dr. Hollis requested "a list of allwage assignment payers that had been handled by the Domestic Relations Officer of Woodford County as of July 1, 2002 and have since been turned over to [the Division] for proper collection and disbursement as required by federal and state laws . . . includ[ing]:
1) payer's name
2) payer's address
3) civil case number
4) date of wage assignment order[.]
2 KRS 205.715 through 205.800 establishes the duties of the Cabinet in relation to child support recovery.
3 KRS 205.175 provides in full:
(1) All letters, reports, communications, and other matters, written or oral, to the cabinet or any of its agents, representatives, or employees, or to any board or official functioning under this chapter which have been written, sent, or made in connection with the requirements and administration of the cabinet shall be absolutely privileged and shall not be the subject matter or basis for any suit for slander or libel in any court, but no person testifying before the secretary or his duly authorized representative shall be exempt from punishment for perjury.
(2) Information received or transmitted shall not be published or be open for public inspection, including instances in which the agency determines reasonable cause to believe evidence of domestic violence or child abuse and the disclosure of the information could be harmful to the custodial parent or the child of the parent, except that necessary information and records may be furnished to:
(a) Public employees in the performance of their duties in connection with the administration of the public assistance or child support enforcement program pursuant to Part D of Title IV of the Social Security Act;
(b) All law enforcement agencies including county attorneys, Commonwealth's attorneys, District and Circuit Judges and grand juries in discovering and prosecuting cases involving fraud;
(c) Duly elected members of the General Assembly of the Commonwealth of Kentucky and the Congress of the United States in connection with their duties as members of such legislative bodies, but such information shall be limited to cases of individual constituents of the legislator, who have requested information regarding their application or grant, as specified in the inquiry by such legislator;
(d) Any interested party at a hearing before the secretary or his duly authorized representative to the extent necessary for the proper presentation of his case; provided, that any names or information obtained through access to such records shall not be used for any commercial or political purposes; and
(e) Any bank, savings and loan association, credit union, or other financial institution to the extent necessary to ascertain or confirm information submitted by the applicant or recipient and used to make eligibility or benefit determinations.
(3) Information regarding a public assistance applicant or recipient may also be released, in the discretion of the secretary or those he may designate, to such individuals or agencies as meet the requirements of regulations promulgated by the secretary and who are supplying or cooperating in securing services, employment, or training for the applicant or recipient of public assistance.
(4) The unauthorized use by any employee of the cabinet of information obtained pursuant to KRS 205.835 is prohibited.
4 KRS 205.796 thus provides:
No employee or agent of the Commonwealth shall divulge any information referred to in KRS 205.715 to 205.800, except in the manner prescribed in KRS 205.715 to 205.800 to any public or private agency or individual; provided, however, that information may be disclosed and shared by and between any employee of the Cabinet for Families and Children and any designee, local administering agency, or any local housing authority for the purpose of verifying eligibility and detecting and preventing fraud, error, and abuse in the programs included in the reporting system. Unauthorized disclosure of any information shall be a violation that is punishable by a fine of one hundred dollars ($ 100) per offense; except that the unauthorized release of the information about any individual shall be a separate offense from information released about any other individual.
5 KRS 403.211(11) thus provides:
In any case administered by the cabinet, information received or transmitted shall not be published or be open for public inspection, including reasonable evidence of domestic violence or child abuse if the disclosure of the information could be harmful to the custodial parent or the child of the parent. Necessary information and records may be furnished as specified by KRS 205.175.