Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services - Office of Vital Statistics (Cabinet) violated the Open Records Act in responding to Beth Richardson's August 19, 2008, request submitted to Paul Royce, State Registrar, Office of Vital Statistics, to inspect "[t]he hard copies of the State Birth Index from 1970 to the present, which are maintained by your office, pursuant to KRS 213.131." For the reasons that follow, we find that the agency's responses did not violate the Act.
By letter dated August 21, 2008, Mr. Royce responded to Ms. Richardson's request, advising her:
In response, the Cabinet is happy to provide the records kept pursuant to [KRS 213.131(2)] and the Cabinet can offer you three options for receiving access to these records:
Based on the foregoing, the Cabinet is happy to provide you with access to these records. However, we will need further direction from you as to how you want to receive these records. Once we receive that direction, we can proceed with making the records available to you.
Believing the Cabinet's response to be in error, Ms. Richardson initiated the instant appeal. 1 In her letter of appeal, she argued, in relevant part:
Each option Mr. Royce is suggesting, merely gives me access to amended versions of the birth indexes. In each of his options, some births have been deleted and not reported at all. None of these provide me with a full and complete listing of the births within the Commonwealth in any given year, which is required to be maintained pursuant to KRS 213.131(2). The non-amended version is only available by viewing the actual birth index books themselves. These are the items that I requested in my Open Records Request.
After receipt of notification of the appeal, Anne E. Burnham, Assistant Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. Addressing the substantive issues raised in the appeal, Ms. Burnham advised:
In certain circumstances, specifically when a child is adopted, the adopted child's birth certificate information is changed to reflect the adoptive parent's names and a new name for the child. When the Court orders that the birth certificate of an adopted child be changed, this Cabinet must seal the original birth certificate and issue a new one. The original birth certificate can only be "opened" upon an order of the Court granting the adoption pursuant to KRS 199.570. In accordance with the change of the birth certificate, the birth index is altered accordingly. This is the only occasion known to the undersigned when the birth index would be altered. Once the birth index is so altered, copies of the prior version of the birth index, to the extent that any exist, reflecting the child's birth name, its birth mother's maiden name, etc. cannot be released by the Cabinet as to do so would violate the Court Order and KRS 199.570.
The physical books that Ms. Richardson references from 1970 to 1989 are not available for inspection by the general public for a number of reasons not the least of which is that these printouts contain more information than the public is entitled to pursuant to KRS 213.131. Specifically, those records contain the full name of both parents and the birth certificate identification numbers. The Cabinet is not permitted to release more information than what KRS 213.131 allows as such dissemination constitutes a Class B felony in accordance with KRS 213,991 and is considered a breach of confidentiality. Furthermore, these books are old computer printouts that are fragile and the Cabinet cannot guarantee that these records are complete.
(Emphasis in original.)
To begin, access to vital records is governed by chapter 213 of the Kentucky Revised Statutes, and in particular, KRS 213.131. Two subsections of that statute are directly relevant to this appeal. KRS 213.131(1) and KRS 213.131(2) provide:
(1) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. Administrative regulations adopted by the cabinet shall provide for adequate standards of security and confidentiality of vital records and shall conform to subsection (4) of this section.
(2) The state registrar shall prepare annually an alphabetical list of all persons registered as born in the preceding year. The list shall show the person's name, the mother's maiden name, and the date and county of birth. This list shall be an open record subject to inspection by the public upon request.
The Kentucky General Assembly has thus firmly and unambiguously spoken on the issue of public access to vital records, declaring that unimpeded access is prohibited but that limited access is permissible via the registry of births generated pursuant to KRS 213.131(2).
"[O]ur duty is to ascertain and give effect to the intent of the General Assembly. We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994). 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." KRS 213.131(1) restricts public access to vital records, including records of birth, "except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. " KRS 213.131(2) authorizes public access to birth records indicating "the person's name, the mother's maiden name, and the date and county of birth. "
As explained by the Cabinet, the hard copies of the State Birth Index, which Ms. Richardson seeks to inspect, contain more information than the public is entitled to review under KRS 213.131(2). Specifically, the Cabinet advised that the State Birth Index includes the additional information of the full names of both parents and the birth certificate identification numbers, and release of more information than what KRS 213.131 allows would be a Class B misdemeanor in accordance with KRS 213.991 and a breach of confidentiality. We agree. Because the State Birth Index contains information the public is not authorized to see, the Cabinet was foreclosed from affording Ms. Richardson unrestricted access to those records. Accordingly, we conclude the Cabinet's denial of the request did not violate the Open Records Act.
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(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.