Request By:
Alison C. Wells
Carrie Hall
Jon R. Klein
Opinion
Opinion By: Jack Conway, 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, Department for Community Based Services violated the Kentucky Open Records Act in partially denying the request submitted by Alison C. Wells on behalf of her client, Donald "Happy" Mobelini, for all documents "related to investigation, including name of informant. " Although the DCBS provided Mr. Mobelini with records concerning the specified investigation, the DCBS redacted the name and identifying information of the individual who initiated the report; this appeal followed. Because the record is devoid of evidence to establish that either Ms. Wells or Mr. Mobelini fall within any of the excepted categories to KRS 620.050(11) codified at (a)-(d), this office affirms the denial based upon the mandatory language of this confidentiality provision, incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
By letter dated March 10, 2008, Ms. Wells requested all documents generated in the investigation of the complaint filed against Mr. Mobelini, advising that he "does not know the name of the social worker. He cannot provide a date for an incident because there was no incident." It was her understanding that a referral was made in Perry County; however, the Family Services Worker apparently came from the Leslie County office. Upon Mr. Mobelini's completion of the requisite form, a CHFS-305, Carrie Hall, Open Records Administrator, Records Management Section, provided him with the documentation requested minus any information identifying the individual who initiated the complaint.
By letter dated May 12, 2008, Ms. Wells initiated this appeal on behalf of Mr. Mobelini, exclusively challenging the redaction of the "informant's" name from the documentation. Upon receiving notification of Ms. Wells' appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS/ DCBS. Quoting the language of KRS 620.050(11), Mr. Klein correctly argues that neither Ms. Wells nor her client "are currently entitled to the information that is the subject of this appeal." More specifically, the record is devoid of any evidence that either Ms. Wells or her client "are members of law enforcement, employees of an agency designated by the Cabinet to investigate or assess child protective services reports, or that they are members of a multidisciplinary team as defined by KRS 620.20." Likewise, there is no evidence that either Ms. Wells or her client "have attempted the procedure set forth in KRS 620.050(11)(d), which is the only method by which they would conceivably be entitled to the information they seek." Insofar as Ms. Wells "apparently failed to even attempt to comply with the statutory procedure for disclosure of identifying information regarding an individual initiating a report," the CHFS properly denied her written request in Mr. Klein's view. Given the mandatory language of KRS 620.050(11), this office agrees; no violation occurred.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id . To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra. When viewed in light of these governing principles, the mandatory and express language of KRS 620.050(11) unquestionably validates the position of the DCBS relative to redaction of any information by which the "informant" can be identified.
Among those records excluded from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In other words, confidentiality provisions found in the Kentucky Revised Statutes 1 are incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Resolution of this appeal turns on the mandatory language of KRS 620.050(11), pursuant to which:
Identifying information concerning the individual initiating the report under KRS 620.030 shall not be disclosed except: 2
(a) To law enforcement officials that have a legitimate interest in the case;
(b) To the agency designated by the cabinet to investigate or assess the report;
(c) To members of multidisciplinary teams as defined by KRS 620.020 3 that operated under KRS 431.600; or
(d) Under a court order, after the court has conducted an in camera review of the record of the state related to the report and has found reasonable cause to believe that the reporter knowingly made a false report.
When viewed in conjunction, KRS 61.878(1)(l) and KRS 620.050(11) operate to ensure that any information by which the individual initiating a report of dependency, neglect, or abuse under KRS 620.030 can be identified remains confidential, presumably to encourage compliance with KRS 620.030. Regardless of the purpose for which KRS 620.050(11) was enacted, the intent of the General Assembly was to ensure that such information is protected from disclosure as evidenced by the literal language of this confidentiality provision. Although the Attorney General has not previously had occasion to address the exact issue presented, this office has consistently upheld agency denials based on confidentiality provisions incorporated into the Act, including denials by the CHFS based on related subsections of KRS 620.050. In our view, the underlying rationale of 99-ORD-197 and 03-ORD-070, applying KRS 620.050(5) (previously codified as 620.050(4)), applies with equal force on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See also 04-ORD-228.
Because Ms. Wells has not demonstrated that either she or Mr. Mobelini fall into any of the excepted categories delineated at KRS 620.050(11)(a)-(c) nor does the record indicate that a court order has been issued under (d), the DCBS is statutorily prohibited from releasing the requested information to either of them. In fact, KRS 620.990(1) provides that "[a]ny person intentionally violating the provisions of [Chapter 620] shall be guilty of a Class B misdemeanor." Accordingly, employees of the CHFS/DCBS properly redacted any information by which the individual who initiated a report under KRS 620.030 relative to Mr. Mobelini can be identified from the documents provided.
Footnotes
Footnotes
1 As a rule of general application, this office will defer to a public agency with regard to interpretation of confidentiality provisions which are binding upon it. 98-ORD-78, p. 3 (deferring to then Revenue Cabinet as to interpretation of KRS 131.190); 04-ORD-252 (deferring to Department of Workers' Claims as to interpretation of KRS 342.229); 97-ORD-33 (deferring to Department of Corrections as to interpretation of KRS 197.025(1)); 94-ORD-76 (deferring to then Cabinet for Human Resources as to interpretation of KRS 620.050(4)).
2 KRS 620.030(1) provides:
Any person who knows or has reasonable cause to believe that a child is dependent, neglected, or abused shall immediately cause an oral or written report to be made to a local law enforcement agency or the Department of Kentucky State Police; the cabinet or its designated representative; the Commonwealth's attorney or the county attorney; by telephone or otherwise. . . . Nothing in this section shall relieve individuals of their obligations to report.
3 Pursuant toKRS 620.020(7):
"Multidisciplinary teams" means local teams operating under protocols governing roles, responsibilities, and procedures developed by the Kentucky Multidisciplinary Commission on Child Sexual Abuse pursuant to KRS 431.600[.]