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 the disposition of Brenton Wombles' request for a copy of "the entire case pertaining to the [Gilardi] family." Because the CHFS has agreed to provide Mr. Wombles with copies of those records to which he is entitled under KRS 620.050(5)(a), upon receipt of payment for the copies and postage in accordance with KRS 61.874, 1 this office affirms the agency's ultimate disposition of Mr. Wombles' request. In accordance with prior decisions applying KRS 61.878(1)(a), the CHFS may redact any information the public disclosure of which constitutes a "clearly unwarranted invasion of personal privacy, " such as the Social Security Numbers, birth dates, home addresses and telephone numbers of persons identified in the records disclosed.
By letter dated July 3, 2008, Mr. Wombles initiated this appeal from the refusal of the DCBS local office in Covington, Kentucky, to accept his request upon receipt, attaching a copy of the certified mail receipt dated June 18, 2008, and the envelope marked "Refused by Recipient" on June 19, 2008. Upon receiving notification of Mr. Wombles' appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS, noting that 922 KAR 1:510, Section 3(1)(c), Authorization for Disclosure of Protection and Permanency Records, expressly requires that a request for such records "that include health information or protected health information" must be directed "to the official custodian of protection and permanency records" at the CHFS, DCBS, Records Management Section, 275 East Main Street, Section 3E-G, Frankfort, Kentucky 40621. 2 In other words, Mr. Wombles "may have directed his request to the wrong address." Nevertheless, the CJFS "is in receipt of a separate request from Mr. Wombles' attorney." According to Mr. Klein, the documents requested "will be provided by the Cabinet upon payment of the proper copying and postage fees and as soon as Mr. Wombles provides a signed CHFS-305 authorization for release of the records to his attorney as required by 922 KAR 1:510, Section 3(1)(b)[,]" a copy of which the CHFS has already provided to Mr. Wombles' attorney.
By letter dated July 21, 2008, Mr. Klein supplemented his response on behalf of the CHFS, advising that the Records Management Section "has received a signed CHFS-305 form as required by 922 KAR 1:510. Accordingly, the Records Management Section is sending 639 pages to Mr. Wombles' attorney today under separate cover." In addition, Mr. Klein advised that "certain additional records regarding Mr. Wombles" are in the possession of the CHFS; however, "these records were leading up to and including the period when his parents' rights were terminated in accordance with KRS Chapter 625. Once a termination occurs, the Cabinet's records are sealed and access to those records may only be granted by the court that ordered the termination. See KRS 625.045(3); 625.108(3) and 61.878(1)(l)." To its credit, the CHFS offered to assist Mr. Wombles' attorney "by providing the county and case number of the termination case in the event he decided to obtain these additional records." 3
In a letter also dated July 21, 2008, Mr. Wombles replied to Mr. Klein's initial response, clarifying that he was "requesting records of Tammy and Steven Gilardi," and the attorney that was asking for documents relating to him obtained "them for another case," which is why he made the original request. Upon discovering that Mr. Wombles had not forwarded a copy of his letter to Mr. Klein, the undersigned counsel sent him a copy via facsimile in order to afford him an opportunity to respond. On August 1, 2008, Mr. Klein again supplemented his response on behalf of the CHFS, advising that upon review, the CHFS "determined that Mr. Wombles is entitled to portions of a case under the Gilardi name provided that he signs and returns a completed CHFS-305 and pays the copying and postage fees associated with his request. 922 KAR 1:510, Section 3(1); KRS 61.874."
On July 29, 2008, the CHFS sent a CHFS-305 to Mr. Wombles for him to complete and return; the CHFS also requested a copy of the file from the local office. According to Mr. Klein, the CHFS will notify Mr. Wombles of the copying fee associated with obtaining "records of the Gilardi family file to which he is entitled pursuant to KRS 620.0[5]0(5)(a)" when the records from the local office have been reviewed. However, "those records will be redacted to remove birth dates, Social Security numbers, home addresses, and other information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" in accordance with KRS 61.878(1)(a). In closing, Mr. Klein notes that the CHFS expects to have reviewed the records and issued a fee letter to Mr. Wombles "no later than Friday, August 8, 2008." Because the CHFS has agreed to provide Mr. Wombles with copies of records to which he is entitled under KRS 620.050(5)(a), upon receipt of the copying fee and postage in accordance with KRS 61.874, this office finds no error in the ultimate disposition of his request as the planned redactions are permissible on the basis of KRS 61.878(1)(a).
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 position of the CHFS relative to KRS 620.050(5) must be affirmed.
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 by federal law or regulation." In other words, confidentiality provisions found in the Kentucky Revised Statutes 4 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(5), pursuant to which:
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:
(a) Persons suspected of causing dependency, neglect, or abuse;
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected, or abused;
(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;
(d) Other medical, psychological, educational, or social service agencies, child care administrators, corrections personnel, or law enforcement agencies, including the county attorney's office, the coroner, and the local child fatality response team, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect, or abuse is substantiated;
(f) Members of multidisciplinary teams as defined by KRS 620.020 and which operate pursuant to KRS 431.060.
(g) Employees or designated agents of a children's advocacy center; or
(h) Those persons so authorized by a court order.
Under the express terms of this provision, the CHFS must withhold all information acquired as a result of an investigation conducted pursuant to KRS 620.050 unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 620.050(5)(a) through (h). Because the CHFS has determined that Mr. Wombles "is entitled to portions of a case under the Gilardi name" under KRS 620.050(5)(a), and has agreed to provide him with copies upon receipt of payment in accordance with KRS 61.874, nothing else is required; Mr. Wombles is not entitled to any report or information obtained as a result of an investigation or assessment in relation to which he does not qualify under one of the foregoing exceptions. In sum, the instant appeal presents no reason to depart from the approach historically taken by this office with regard to application of KRS 620.050(5). On this issue, 03-ORD-070 and 99-ORD-197 (KRS 620.050(5) was then codified as 620.050(4)), are controlling though a contrary outcome is dictated (requesters did not fall within any of the excepted categories); a copy of each decision is attached hereto and incorporated by reference. See also 08-ORD-27; 06-ORD-252.
In light of this determination, the remaining question is whether the CHFS is authorized to redact personal information such as Social Security Numbers, birth dates, home addresses and telephone numbers of persons identified in the records disclosed. Because the law is well-established as to application of KRS 61.878(1)(a), this office will not belabor the point. Applying the standard first articulated by the
Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), and later refined by the
Kentucky Court of Appeals in Zink v. Commonwealth of Kentucky, Ky. App., 925 S.W.2d 825 (1994), this office has consistently recognized that such information is confidential and can properly be withheld on the basis of KRS 61.878(1)(a). In 06-ORD-036, the Attorney General reaffirmed this principle in upholding a denial of a request for "contact information" of substitute teachers, reiterating that public employees "are accountable to the public with respect to the performance of their duties," but even they "do not surrender their right to privacy in this personal information by virtue of their public employment." Id., p. 9. Both the courts and this office have consistently recognized that any public interest in disclosure of this personal information is outweighed by the substantial privacy interests of private citizens. With regard to application of KRS 61.878(1)(a), the analysis contained in 06-ORD-036 applies with equal force on the facts presented; a copy of that decision is attached hereto and incorporated by reference.
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.
Distributed to:
Brenton Wombles, #217547Jon R. Klein
Footnotes
Footnotes
1 In relevant part, KRS 61.874(1) provides that "[w]hen copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." Pursuant to KRS 61.874(3), a public agency "may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction[.]" Accordingly, this office has long recognized that a public agency is authorized to condition release of copies upon advance payment of a reasonable copying fee (generally ten cents).
2 In the interest of efficiency, and in keeping with the spirit of the Open Records Act, the local DCBS office should have advised Mr. Wombles of his error in a written response if nothing else. Insofar as the DCBS marked the envelope "Need individual name," the record is unclear as to whether the agency refused his request due to his failure to comply with the cited regulation; such factual ambiguities are not justiciable in the context of an Open Records appeal.
3 Pursuant to 40 KAR 1:030, Section 6, any issues concerning those records already provided to Mr. Wombles are moot; additionally, the position of the CHFS relative to any records which fall within the parameters of the referenced confidentiality provisions, incorporated into the Act by operation of KRS 61.878(1)(l), is entirely valid. Further consideration of this argument is unwarranted inasmuch as Mr. Wombles' original request, which is our sole focus under KRS 61.880(2)(a), did not seek those records.
4 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)).