Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Cabinet for Health and Family Services relative to the open records request of Judith Ann Martin violated the Open Records Act. For the reasons that follow, we conclude that, although we are unable to resolve the factual issue as to whether the Cabinet received Ms. Martin's original request, the Cabinet's response, after receipt of notification of the appeal and a copy of Ms. Martin's original request submitted with her letter of appeal, was proper and did not constitute a violation of the Act.
In her letter of appeal, dated February 10, 2004, Ms. Martin indicated that, as of that date, she had received no response from the Cabinet to her open records request. Along with her letter, Ms. Martin enclosed a copy of an open records request dated January 3, 2004, addressed to the Cabinet for Health Services, Division of Elderly Services, 275 E. Main Street, Frankfort, KY 40621. The request asked for Cabinet records or reports of abuse, neglect, or exploitation of the late Florence P. Campbell of Florence, Kentucky during the approximate period of 1995 and 1996.
After receipt of Notification and a copy of the letter of appeal, and Ms. Martin's January 4, 2004 request, John H. Walker, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In his response, Mr. Walker advised:
The Office of Legal Services has contacted the Office of Aging Services, the Office of the State Long Term Care Ombudsman and the Office of the Inspector General of the Cabinet for Health and Family Services which would have investigated any allegation of abuse, neglect, or exploitation which may have occurred in a nursing facility, and no person has any record of receiving any correspondence addressed to a "Division of Elderly Services" from Ms. Martin. It appears that the Cabinet did not receive Ms. Martin's request.
A review of a copy of her correspondence shows that Ms. Martin seeks records of abuse, neglect, or exploitation of the late Florence Campbell of Boone County during the approximate time of 1995 to 1996. According to Ms. Martin's correspondence, Ms. Campbell died in the Woodspoint Nursing Home in Florence, Kentucky on May 28, 1996.
Unfortunately, Kentucky Revised Statutes limit who may have access to records of adult abuse, neglect or exploitation. KRS 209.140 prohibits release of any information obtained by the agency during the course of any investigation except in very limited circumstances. Moreover, information is prohibited from release except to (1) the persons suspected of abuse, neglect or exploitation provided the names of informants are redacted; (2) persons within the agency with a legitimate interest or responsibility related to the case; (3) other medical, psychological or social service agencies, or law enforcement agencies with a legitimate interest in the case; (4) cases where a court orders release of such information; and (5) the alleged abused, neglected or exploited person. I have attached a copy of the statute for easy reference.
While the Cabinet for Health and Family Services appreciates the concern Ms. Martin shows for the treatment of the late Mrs. Campbell, the Kentucky Revised Statutes prevent the Cabinet from providing any information in response to her request. Unless, Ms. Martin fell within the statutorily recognized exceptions to the general rule on nondisclosure of information, her request would have to be denied pursuant to KRS 61.878(1)(l) on the grounds that the General Assembly has acted to protect the confidentiality of any records of adult abuse, neglect or exploitation.
We are asked to determine whether the Cabinet's denial of Ms. Martin's 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. Ms. Martin does not demonstrate that she falls within an excepted category set forth in KRS 209.140(1) - (5). Accordingly, we affirm the Cabinet's denial of this request under authority of KRS 209.140, in tandem with KRS 61.878(1)(l).
Next, we address Ms. Martin's complaint that the Cabinet failed to respond to her original request. In its response, the Cabinet indicated its search efforts and the different divisions within which it had inquired to ascertain if the request had been received and we have no reason to doubt its response. However, we have insufficient information to resolve the issue as to whether the Cabinet received the request and make no determination in this regard. See 03-ORD-061.
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 proceedings.
Judith Ann Martin2791 Berwood LaneHebron, KY 41048
David FleenorGeneral CounselCabinet for Health and Family Services275 East Main Street, 5W-AFrankfort, KY 40621
John H. WalkerOffice of General CounselCabinet for Health and Family Services275 East Main Street, 5W-AFrankfort, KY 40621