Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, 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 the request of J. Robert Lyons, Jr., on behalf of Martha Kiser, Executrix of the Estate of Fred W. Kiser, for copies of "any and all information concerning the investigation of the injuries suffered by Fred W. Kiser at Pimlico Manor Nursing Home." For the reasons that follow, and based on the authorities cited, we affirm the Cabinet's denial of her request.
By letter dated January 2, 2003, Carrie Hall of the Cabinet's Records Management Section responded in writing to Mr. Lyons that the Cabinet was unable to comply with his request because he did not meet the requirements of KRS 209.140. The letter informed Mr. Lyons that he would need to get a court order to receive the requested records.
Shortly thereafter, Mr. Lyons initiated an open records appeal to the Attorney General, asserting, in relevant part:
We made a request for certain records concerning an investigation of the injuries suffered by Fred W. Kiser at Pimlico Manor Nursing Home. This request was made on behalf of Martha L. Kiser in her capacity as Executrix of the Estate of Fred W. Kiser, deceased. Obviously, Mr. Kiser is now deceased and the only person with capacity to request those records on his behalf is his Executrix, Martha L. Kiser.
She has made multiple requests for these records and has been refused these records on the basis that a "court order" is required. Under KRS 209.140(5) the alleged abused or neglected or exploited person is entitled to receive information concerning the results of an investigation made with respect to those allegations. Fred W. Kiser is the alleged abused person in this matter. However, because of his death, his Executrix, Martha L. Kiser, steps into his shoes and is entitled to request these documents on his behalf. No other court order is or should be required.
After receipt of notification of the appeal and a copy of Mr. Lyons' letter of appeal, Jon R. Klein, Assistant Counsel, provided this office with a response to the issues raised in the appeal. Elaborating on the Cabinet's denial under authority of KRS 209.140, Mr. Klein explained:
The language of the statute is explicit that Cabinet's records "shall not be divulged to anyone except" those persons or entities listed in the statute. Neither Mr. Lyons nor his client, Martha Kiser, fit any of the specified categories or persons or entities listed. Thus, these records are exempted from disclosure to both Mr. Lyons and Ms. Kisser in accordance with KRS 61.878(1)(l).
We are asked to determine whether the Cabinet's denial of Mr. Lyons' request violated the Open Records Act. For the reasons that follow, and based on KRS 209.140, in tandem with KRS 61.878(1)(l), we affirm the Cabinet's denial of her request.
KRS 61.878(1)(l) provides for the nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
The specific statute or enactment of the General Assembly relied upon by the Cabinet in its letter of denial was KRS 209.140, which provides:
All information obtained by the department staff or its delegated representative, as a result of an investigation [into suspected adult abuse] 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; and
(5) The alleged abused or neglected or exploited person.
Under the express terms of this statute, the Cabinet must withhold all information acquired as a result of an investigation conducted pursuant to KRS 209.140 unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 209.140 (1) through (5) 96-ORD-6; 98-ORD-97.
Addressing Mr. Lyons' argument that the Health Insurance Portability Act (HIPAA) authorizes the disclosure of the records because Ms. Kiser is the executrix of Mr. Kiser's estate and should be considered a personal representative, the Cabinet argues that the KRS 209.140 is controlling in this situation and HIPAA does not apply. We agree.
45 C.F.R. 164.502(g)(4), the statute in HIPAA cited by Mr. Lyons in support of his position, states:
(5) Implementation specification: Deceased individuals.
If under applicable law an executor, administrator, or other person has authority to act on behalf of a deceased individual or of the individual's estate, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representation.
In response to this argument, Mr. Klein countered:
While Ms. Kiser may be a personal representative of Mr. Kiser according to HIPAA, that fact is irrelevant here. Mr. Lyons has overlooked the initial clause of the paragraph he cited. Under the applicable state law, KRS 209.140, Ms. Kiser is not entitled to the requested records.
We find that the Cabinet's position on this issue is correct. Under the express terms of KRS 209.140, the applicable statute in this instance, the Cabinet must withhold all information acquired as a result of an investigation conducted pursuant to that chapter unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 209.140. Neither Mr. Lyons nor Ms. Kiser fall within an excepted category set forth in KRS 209.140(1) - (5). The statute makes no provision for divulging the information to an executrix or representative of the alleged abused or neglected or exploited person. Thus, the Cabinet properly denied the request. In order for Mr. Lyons or Ms. Kiser to obtain the records they seek, they must obtain a court order.
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.
Distribution to:
J. Robert Lyons, Jr.Woodward, Hobson & Fulton, LLPP.O. Box 1720Lexington, KY 40588-1720
Carrie HallRecords Management SectionCabinet for Families & Children275 East Main Street -- 3E-GFrankfort, KY 40621
Jon R. KleinOffice of General CounselCabinet for Families & Children275 East Main Street, 4W-CFrankfort, KY 40601-0001