Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services-Division of Protection and Permanency violated the Kentucky Open Records Act in partially denying the request of Mary Rose Figgins to inspect "the entire case file from the Owen County CHFS office pertaining to my temporary custody, permanency plan, reunification services, and the Kinship Care Program[, including, but not limited to,] all case records, records of home visits, records of any transmittals from the Owen County CHFS office (fax, mail, electronic or telephone notes)" directed to the Madison County office "and vi[ce] versa, any field and/or office notes made by any worker involved in this case" and "[f]iles or notes that contain any complaints of neglect or dependency (less identification information of complainant) against me." In a related but separate request, Mrs. Figgins sought the same records concerning M.W., a minor, of whom she had legal custody "during the time period[,]" as well as records of "all attempts by the Madison County office to contact the child's mother[,]" and records of "any interview with [M.W.] by any worker (whether written or electronic) ." In sum, the response of the CHFS was procedurally deficient but substantively correct.
In a timely written response, Carrie Hall, Open Records Administrator, DPP, advised Mrs. Figgins there are "state and federal laws that govern the privacy of records" so records she requested had "been ordered from the custodian" and would "be sent to this office for a final review to determine what, if anything, may be released" to her. In 05-ORD-134, a copy of which is attached hereto and incorporated by reference, the Attorney General addressed the inherent deficiencies of the standard form letter utilized by the CHFS at length in finding that such a general response violates KRS 61.880(1) and KRS 61.872(5); this office will not belabor the point here. See 05-ORD-267 ("While the volume of requests directed to the CHFS and the nature of the records implicated, in conjunction with the staffing issues the CHFS is apparently faced with, undoubtedly present the CHFS with a unique dilemma, the Open Records Act does not contain a provision extending the statutory deadline for the CHFS or a waiver of the other procedural requirements"). By letter dated September 27, 2006, Ms. Hall advised Mrs. Figgins that documentation she requested was enclosed with redactions having been made "in accordance with Kentucky Revised Statutes." 1
Acknowledging receipt of "copies of Reporting Form DPP-115, but no other copies of my case file, " Mrs. Figgins subsequently initiated this appeal. "Per a phone conversation with [Ms. Hall] on September 29, 2006," Mrs. Figgins was told that she is "not entitled to these records." To date, Mrs. Figgins had "not received a written notice of denial from" the CHFS. Upon receiving notification of Mrs. Figgins' appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS. Citing KRS 194A.060 and 620.050(5), Mr. Klein correctly observes that "copies of the DPP-110 and CHFS-305 forms submitted show that she only properly requested documents regarding M.W. Mrs. Figgins is not the legal guardian of M.W. Therefore, she is not entitled to M.W.'s records." Nor has Mrs. Figgins "alleged and proven any status that would make her eligible to receive his records." As further explained by Mr. Klein:
The DPP-110 and CHFS-305 are forms designed by the Cabinet and incorporated into 922 KAR 1:510, Authorization for disclosure of protection and permanency records. This regulation was promulgated by the Cabinet's Division of Protection and Permanency and governs how the Division responds to requests for documents under the Open Records Act. Section 3 of the regulation requires that a CHFS-305 be submitted for each person whose protected health information is requested.
It appears to be undisputed that the only CHFS-305 received by the Cabinet purports to authorize the release of M.W.'s records to Mrs. Figgins. That form is signed at the bottom by Mrs. Figgins. Again, Mrs. Figgins has neither alleged nor proven that she is authorized by statute to receive M.W.'s records.
If Mrs. Figgins would like to receive protection and permanency records regarding herself or any other person, a CHFS-305 must be completed as required by 922 KAR 1:510, Section 3, and submitted to the Records Management Section in Frankfort in accordance with the regulation. Just so that there is no misunderstanding, the CHFS-305 form must be signed by a person authorized by law to receive the requested documents. Only a person authorized by law to receive the documents may validly authorize disclosure of the documents to themselves or others. Once Mrs. Figgins has completed the process for validly requesting particular documents, the Cabinet will respond to those requests.
With the exception of the noted procedural violation, the CHFS has complied with governing precedent in partially denying the requests submitted by Mrs. Figgins. 2
By letter dated November 8, 2006, Mrs. Figgins refuted Mr. Klein's assertion that she failed to submit the requisite documentation to receive the records at issue. According to Mrs. Figgins, the Records Management Section received the request via facsimile on August 25, 2006, which included:
1. A DPP-010 for my case file
2. An attachment sheet w/ specifics for my case file
3. A CHFS-305 for my case file
4. A DPP-010 for records concerning M.W.
5. An attachment sheet with specifics for records concerning M.W.
6. A CHFS-305 for the records concerning M.W.
7. A copy of the court order from Madison Circuit Court granting me custody with all authority to make medical, educational and all other decisions relating to the best interest of the child
8. The cover letter from the Owen County Office
9. I have no idea about the 9th page and must assume it was some note or letter from the Owen County Office.
Also on November 8, Mrs. Figgins spoke with Ms. Hall on the telephone "to inquire about the proper [paperwork]. She stated she had in fact received all the necessary forms to process" Mrs. Figgins' request. Because Mrs. Figgins was the "court ordered legal guardian of M.W. for the period" during which the requested records were generated, Mrs. Figgins believes that she has "the legal right to inspect those records to ensure that the best interest [s] of M.W. were considered by all Protection and Permanency workers involved with his Protection and Permanency Plan. " Enclosed with Mrs. Figgins' reply is a copy of the referenced documents.
By letter dated November 15, 2006, a copy of which Ms. Hall forwarded to this office, Ms. Hall advised Mrs. Figgins that "material for this case has been reviewed and the number of pages has been identified as 34" 3 without further elaboration. To support the position that Mrs. Figgins does not fall within any of the exceptions codified at KRS 620.050(5), Mr. Klein subsequently forwarded to this office a copy of the Madison Family Court Order pursuant to which M.W. was removed from the custody of Mr. and Mrs. Figgins on August 16, 2006. In light of this verification, the response of the CHFS must be affirmed.
In our view, 03-ORD-070, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented; the CHFS is merely complying with applicable state and federal laws in declining to release the records without proper written authorization. Because Mrs. Figgins is no longer the legal guardian of the minor in question nor has Mrs. Figgins demonstrated that she is otherwise entitled to access, the CHFS properly denied her request as to records concerning the minor and his mother in accordance with KRS 620.050(5) and 922 KAR 1:510, Section 3.
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 Although this response also lacks the specificity envisioned by KRS 61.880(1), the reasoning of 05-ORD-134 applies with equal force; additional discussion is therefore unwarranted.
2 In addition, Mr. Klein correctly notes that "it is not clear which of the two (2) versions of the 'CONTINUATION SHEET FOR FORM DPP-110' attached to her appeal that Ms. Figgins submitted to the Cabinet, if any. Both are dated August 24, 2006, the same date that appears on the forms submitted." Because the "shorter of the two (2)" requests information concerning Mrs. Figgins, "in general, Mrs. Figgins would be entitled to those records upon proper request." However, the "longer of the two (2)" requests the case files of M.W. and his mother. As reiterated by Mr. Klein, "Ms. Figgins is not entitled to M.W.'s records as she is not his guardian and has not alleged and proven any status that would make her eligible to receive those records."
3 Pursuant to 40 KAR 1:030, Section 6: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that if access to public records which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office assumes that Mrs. Figgins has received 34 pages of records which are responsive to her request or will upon receipt of payment by the CHFS. That being the case, any related issues are moot; this office must decline to issue a decision concerning those records.