Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Ramey-Estep Homes, Inc., violated the Open Records Act in the disposition of Steven Farmer's December 9, 2004, request for "personal mail sent from [Mr. Farmer] to [the Home's] DCBS referral, [N. F.] . . . ." For the reasons that follow, we find that although REH failed to state a legally sufficient basis for denying Mr. Farmer's request in the original response thereto, REH is now foreclosed from releasing the records identified in that request by operation of the Order entered by the Bracken Juvenile Court on March 24, 2005.
In a response dated December 13, 2004, Leigh Gross Latherow, attorney for REH, notified Mr. Farmer that mail sent from him "to a resident of Ramey-Estep Homes . . . is not subject to disclosure under the Open Records Act. " This appeal followed. Upon receipt of notification of the appeal, Ms. Latherow elaborated on her client's position. She indicated that it is unclear whether the request that spawned this appeal mirrored an earlier request for personal mail to which REH responded on December 10 by advising Mr. Farmer that although one parcel was intercepted and redirected to the Department for Community Based Services, "all other mail that he had forwarded to the minor child had been provided to the minor child. " Continuing, Ms. Latherow observed:
Since that time, Mr. Farmer has continued to send mail to this minor child. Some of the mail has contained inappropriate materials and has not been provided to the minor child. In those circumstances, the mail was forwarded to the Department for Child Based Services with a letter of explanation why the letter was not provided to the minor child. The explanation letter to DCBS was copied to Mr. Farmer. All other correspondence has been provided to the minor child.
Both prior to issuance of the December 10, 2004 letter and since that time, the minor child has returned most, if not all, of the correspondence that she has received from Mr. Farmer to her counselors, who are Ramey-Estep employees. Those letters are now maintained as a part of the minor child's records with Ramey-Estep Homes for counseling, treatment, consultation and record keeping purposes. Hence, these documents are not public records, even though such letters may have been written by Mr. Farmer.
(Emphasis in original.)
Following the exchange of several more letters by Mr. Farmer and REH that now comprise the copious record on appeal, this office submitted a request for additional documentation, pursuant to KRS 61.880(2)(c), 1 to REH on March 15, 2005, to clarify the issues presented. In response to these questions, Ms. Latherow provided this office with a copy of "an Order of the Bracken Juvenile Court prohibiting Ramey-Estep Homes, Inc. from 'disclosing in any manner, records or reports to Steven Farmer relative to the education, treatment and placement of N. F. at Ramey-Estep by the Cabinet for Health and Family Services." It was REH's position that "[the] documents requested by Mr. Farmer that are the subject of this appeal (personal mail that is now contained in N. F.'s records at Ramey-Estep Homes, Inc.) fall within the parameters of this order," and that it is therefore prohibited from releasing the records to Mr. Farmer. Based on the long-recognized principle that the entry of an order by a court of competent jurisdiction prohibiting disclosure of records removes records covered by that order, and parties bound by the order, from the terms and provisions of the Open Records Act, we affirm REH's denial of Mr. Farmer's request.
As noted above, in its original denial of Mr. Farmer's request, REH asserted that the mail he sent to a resident of the Home was "not subject to disclosure under the Open Records Act. " Expanding on this argument in its supplemental response, REH argued that "as a part of the minor child's records with Ramey-Estep Homes for counseling, treatment, consultation, and record-keeping purposes," the requested letters "are not public records. " (Emphasis in original.) Without further elaboration, it is unclear on what legal basis these assertions were made. 2 Because KRS 61.880(1) requires public agencies to "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld," we find that REH's original denial of Mr. Farmer's request was procedurally deficient.
Turning to the substantive issue on appeal, we find that REH is foreclosed from releasing the requested records by operation of the Bracken Juvenile Court Order entered on March 24, 2005. That Order states:
Ramey Estep High School and Ramey Estep, Inc. shall not disclose, in any manner, records or reports to Steven Farmer relative to the education, treatment and placement of [N. F.] at Ramey Estep by the Cabinet for Health and Family Services.
In OAG 89-22, and subsequent decisions, this office recognized that a public agency bound by a court order restricting release of records might be found in contempt of court and subject to civil liability if the agency or its employees released records within the purview of that order. See also, OAG 91-121; OAG 92-119; 94-ORD-139; compare 96-ORD-244. These decisions hold, generally, that the Open Records Act does not supercede an order of confidentiality entered by a court of competent jurisdiction. Consistent with this line of authority, we find that REH is required to adhere to the Bracken Juvenile Court Order in deference to the judicial process and that the requested records cannot be released to Mr. Farmer unless and until the Order is lifted.
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 61.880(2)(c) authorizes the Attorney General to "request additional documentation from the agency for substantiation [of its action]."
2 Subsequent correspondence with Mr. Farmer, copies of which were forwarded to this office, suggest that REH's position is premised on the court's interpretation of KRS 61.870(1), the statutory definition of "public record," in Hardin County v. Valentine, Ky. App., 894 S.W.2d 151 (1995). There, the Court of Appeals determined that under KRS 61.870(2) medical records housed by a publicly funded hospital were not public records for purposes of KRS 61.870(1)(h) because those records were "not related to the functioning of the hospital, the activities carried on by the hospital, its programs, or its operations." Valentine at 152. Because the entry of the Bracken Juvenile Court's order on March 24, 2005, is dispositive of the issue on appeal, we do not address this argument.