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 the Cabinet for Health and Family Services violated the Open Records Act in partially denying Courier-Journal reporter Deborah Yetter's March 20, 2007, request for copies of:
[a]ll reports by the Cabinet . . . of child fatality reviews for fiscal years 2006, 2005, and 2004; [and]
[t]he Cabinet's annual report, due on Sept. 1 of each year, containing an analysis of all summaries of internal fatality reviews during the previous year, as required under KRS 620.050(12-c) [sic].
For the reasons that follow, we affirm the Cabinet's partial denial of The Courier's request on the basis of KRS 61.878(1)(k) 1 and (l), 2 incorporating 42 U.S.C. 5106a(b)(2)(A)(viii) and KRS 620.050(5), respectively, into the Open Records Act.
By letter dated March 30, 2007, Assistant General Counsel Carlton S. Shier, IV, partially denied The Courier's request, relying on, inter alia, 42 U.S.C. 5106a (b)(2)(A)(viii) and KRS 620.050(5). 3 Although Mr. Shier provided Ms. Yetter with copies of the annual reports, he denied her request for internal child fatality reviews on the cited bases. Shortly thereafter, The Courier initiated this appeal, asserting that "[b]oth state and federal law require disclosure of the fatality reviews." In support, The Courier cited KRS 620.050(12)(a), permitting public disclosure of information in a case where child abuse or neglect has resulted in a child fatality or near fatality, and 42 U.S.C. 5106a(b)(2)(A)(x), requiring states which receive federal funding for child protective services under the Child Abuse Prevention and Treatment Act (CAPTA), 4 to have in place "provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality. " It was The Courier's position that "[w]ithout 620.050(12)(a), and its requirement that fatality review information be disclosed to the public, the Cabinet would be in violation of this provision of CAPTA and would not be eligible to receive federal funds."
In supplemental correspondence directed to this office following commencement of The Courier's appeal, Assistant Counsel Jon R. Klein amplified on the Cabinet's position. Fundamental to the Cabinet's argument was the recognition that "child fatality and near fatality records are records that relate to a Cabinet investigation of suspected abuse or neglect within the meaning of KRS 620.050(5)," and that they are excluded from public inspection by that provision as to all persons and entities except those identified in sections (a) through (h). Noting that Ms. Yetter failed to allege that she fell within one or more of the excepted categories found at (a) through (h), Mr. Klein reiterated that her request was properly denied.
Mr. Klein emphasized that the provision upon which The Courier relies, KRS 620.050(12)(a) contains the precatory "may," as opposed to the mandatory "shall," evidencing the legislative intent that the Cabinet retain "discretion regarding whether to release child fatality and near fatality information." Only KRS 620.050(12)(c) is couched in mandatory terms, Mr. Klein continued, "affirmatively requir[ing] the release of information" consisting of the annual report "containing an analysis of the summaries of internal reviews occurring during the previous year and an analysis of historical trends . . . ." (Emphasis in original.) Those reports, Mr. Klein concluded, have already been disclosed to The Courier.
With reference to The Courier's argument that 42 U.S.C. 5106a(b)(2)(A)(x) requires the disclosure of information about child fatality or near fatality cases, Mr. Klein acknowledged that the federal provision mandates "release of some information about these cases," (emphasis in original), but maintained that 42 U.S.C. 5106a(b)(2)(A)(viii) "makes clear that information regarding the children, and their parents or guardians, [is] to remain confidential to the extent necessary to protect their rights, including their right to privacy." Mr. Klein asserted that Kentucky satisfies its federal obligations under both 42 U.S.C. 5106a(b)(2)(A)(x) and 42 U.S.C. 5106a(b)(2)(A)(viii):
by publishing certain findings or information regarding child fatality and near fatality cases in accordance with KRS 620.050(12)(c). By disclosing only an analysis of the summaries of the fatality reviews, the Cabinet satisfies the public need for information about child fatality and near fatality cases while protecting the [privacy] of the children and their parents or guardians.
Having reviewed both the annual report of the fatality reviews that were disclosed to The Courier, and the internal child fatality reviews that were withheld, 5 we agree with the Cabinet's analysis and affirm its partial denial of The Courier's request.
This office has, for some twenty years, and as recently as June 2007, recognized that KRS 620.050(5), incorporated into the Open Records Act by KRS 61.878(1)(l), authorizes the Cabinet for Health and Family Services to withhold information it obtains as a result of an investigation or assessment conducted pursuant to KRS Chapter 620 unless the person requesting the information can demonstrate that he or she falls within one of the excepted categories codified at KRS 620.050(5)(a) through (h). 07-ORD-123, citing OAGs 87-82; 88-4; 91-93; 92-53; 92-54; 92-ORD-1502; 94-ORD-134; 95-ORD-5; 96-ORD-43; 97-ORD-181; 99-ORD-197; 03-ORD-070. The referenced confidentiality statute provides:
The report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this section, shall not be divulged to anyone except:
In construing this provision, the Attorney General has stated that a requester who does not fall within one of these classes, although he or she may have a legitimate interest in the case, is not entitled to inspect records containing information of this nature. In so holding, we have recognized that "there may be occasions when the unequivocal language of KRS 620.050(5) works an injustice . . .," but have remained firm in this view. See, e.g., 95-ORD-5. Here, as in these earlier decisions, "we are constrained by the express language of the statute." KRS 620.050(5) requires the Cabinet to withhold the disputed records from all persons except those specifically identified. The record on appeal does not establish Ms. Yetter's, or The Courier's, entitlement to the records under one of these excepted classes. Therefore, the Cabinet properly denied this portion of the request.
The terms of KRS 620.050(5) are unambiguous: "[A]ll information obtained by the Cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this section, shall not be divulged to anyone . . . ." (Emphasis added.) As we noted in OAG 88-4, "this is not a situation where the Cabinet or the Department have any discretion as they are prohibited by statute from releasing materials and information except in those specifically enumerated situations and circumstances" set forth in the statute. OAG 88-4, p. 4. The provision is intended to protect families affected by allegations of child abuse, neglect, or dependency, and in particular, the affected children. As we have in the past, we must defer, within reason, to the Cabinet in its interpretation of its own confidentiality provisions. See, for example, 94-ORD-76. We do not believe that KRS 620.050(5) should be read so narrowly as to exclude internal child fatality or near fatality reviews. Nondisclosure of these records promotes the purpose for which the confidentiality provision was enacted by shielding the affected families and victims from unwarranted scrutiny. 6
Just as the confidentiality provision found at KRS 620.050(5) should not be read so narrowly as to exclude internal child fatality or near fatality reviews, so too KRS 620.050(12)(a) and 42 U.S.C. 5106a(b)(2)(A)(x) should not be read so broadly as to compel disclosure of those records. KRS 620.050(12)(a) states:
Information may be publicly disclosed by the cabinet in a case where child abuse or neglect has resulted in a child fatality or near fatality.
42 U.S.C. 5106a(b)(2)(A)(x) requires states to certify the existences of:
provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality.
However, like KRS 620.050(5), 42 U.S.C. 5106a(b)(2)(A)(viii) is aimed at "preserving the confidentiality of all records in order to protect the rights of the child and of the child's parents or guardians, " and "ensuring that reports and records made and maintained pursuant to the purposes of this subchapter . . . shall only be made available" to six specifically identified classes of individuals or entities. We attach significance to the use of precatory language in the state provision relating to disclosure and the careful wording in the federal provision aimed at vesting the states with reasonable discretion in making those disclosures. As noted, the primary impetus underlying all of these confidentiality provisions is the protection of the rights of the child and his parents or guardians.
Our review of the annual reports released to The Courier and the internal reviews withheld from The Courier discloses appreciable differences. The latter records identify by name, date of birth, and social security number the child victim and his or her parents or guardians, contain details of the incidents that resulted in the fatality or near fatality, including the child's protection and permanency history and his or her medical condition, and document prevention plans and/or recommendations for the family as well as recommendations for staff training and development. The annual reports, on the other hand, present the information gleaned from these reviews in a statistical and analytical format not descriptive of any readily identifiable person, thereby insuring the protection of the rights of the child and his or her parents or guardians. While the public's interest in the disclosure of the content of the internal reviews is significant, advancing its ability to monitor the efficacy with which the Cabinet has previously addressed, or is addressing, incidents resulting in child fatalities or near fatalities, that interest must yield to the statutorily recognized interest in protecting the rights of the child and his or her parent or guardians. We therefore affirm the Cabinet for Health and Family Services' partial denial of The Courier-Journal's request on the basis of KRS 61.878(1)(k) and (l), incorporating into the Open Records Act 42 U.S.C. 5106a(b)(2)(A)(viii) and KRS 620.050(5), respectively.
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 61.878(1)(k)authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation.
2 KRS 61.878(1)(l)authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3 The Cabinet also relied on KRS 61.878(1)(a), KRS 194A.060, and the Health Insurance Portability and Accountability Act and the regulations promulgated thereunder. In view of our determination that 42 U.S.C. 5106a(b)(2)(A)(viii) and KRS 620.050(5) prohibit disclosure of the disputed reports, we do not address these additional arguments supporting nondisclosure.
4 42 U.S.C. 5101 et seq.
5 Pursuant to KRS 61.880(2)(c), the Attorney General requested these documents for purposes of comparison and to facilitate our review of the issue on appeal. These records were not disclosed and have been destroyed per 40 KAR 1:030 Section 3.
6 The fact that some of the internal reviews deal with children who are deceased does not affect the outcome of this appeal. On at least three occasions, the Attorney General has declined the invitation to declare that the protection afforded by a confidentiality provision expires upon the death of the person whose records it protects. See, 98-ORD-97 (KRS 209.140); 95-ORD-7 (KRS 610.320(3); OAG 85-140(20 U.S.C. § 1232g(b)(1) and KRS 164.283(2)).