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, Division of Protection and Permanency violated the Kentucky Open Records Act in denying Kyle McPherson's December 17, 2009, request for "[a]ll Child Advocacy Center [r]eports" concerning his daughter. In a timely written response, Gina Oney, Records Administrative Supervisor, advised Mr. McPherson that he was "not entitled to the requested information [records] as defined by KRS 620.050(7)." 1 Shortly thereafter, Mr. McPherson initiated this appeal, noting that he "was the person under investigation in both cases" which "came back unsubstantiated. " 2 In the absence of any objective proof to substantiate Mr. McPherson's assertion, this office finds that the CHFS properly denied his request on the basis of KRS 620.050(7), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 3 because he remains the subject of two pending investigations.
Upon receiving notification of Mr. McPherson's appeal from this office, Jon R. Klein, Assistant Counsel, CHFS, responded on behalf of the agency. Having quoted the language of KRS 620.050(7), Mr. Klein advised that according to Rosa Browning, "the administrative specialist who handled Mr. McPherson's request, Mr. McPherson is the subject of two (2) investigations by the Cabinet that are currently open and pending." Citing KRS 61.878(1)(l), Mr. Klein argued that the denial of Mr. McPherson's request was appropriate. Even if two investigations were not currently pending, Mr. Klein asserted, his request still would have been denied on the basis of KRS 620.050(6)(a), pursuant to which: "Files, reports, notes, photographs, records, electronic and other communications, and working papers used or developed by a children's advocacy center in providing services under this chapter are confidential and shall not be disclosed" except for limited classes of individuals to which Mr. McPherson does not belong. Mr. Klein relied upon 07-ORD-036 in support of this alternative basis for denial; however, KRS 620.050(7) was not implicated on the facts presented in that appeal.
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.
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 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(7), pursuant to which:
Nothing in this section shall prohibit a parent or guardian from accessing records for his or her child providing that the parent or guardian is not currently under investigation by a law enforcement agency or the cabinet relating to the abuse of a child.
(Emphasis added). When viewed in conjunction, KRS 61.878(1)(l) and KRS 620.050(7) operate to ensure that any parent or guardian shall be permitted to access records concerning his or her child unless the parent or guardian is currently under investigation by the CHFS or a law enforcement agency. Both initially and in responding to Mr. McPherson's appeal, the CHFS has confirmed that he is the subject of two investigations that are currently open and pending.
In the absence of any objective proof to refute the agency's position that Mr. McPherson remained under investigation at the time of his request (and his appeal for that matter), this office must affirm its denial in accordance with KRS 620.050(7) notwithstanding his apparent belief that any investigations were resolved in his favor as the allegations were "unsubstantiated. " The intent of the italicized language quoted above was clearly to ensure that records concerning a child are not disclosed to a parent(s) being investigated for abuse of that child as evidenced by the literal language of this provision. Although the Attorney General has not previously had occasion to address the exact issue presented, this office has generally upheld agency denials based on confidentiality provisions incorporated into the Act, including denials by the CHFS based on related subsections of KRS 620.050. See, for example, 99-ORD-197 and 03-ORD-070, applying KRS 620.050(5) (previously codified as 620.050(4)); see also 04-ORD-228; 08-ORD-127. Assuming that Mr. McPherson is currently under investigation by law enforcement or the CHFS, KRS 620.050(7) expressly prohibits the CHFS from providing him with "[a]ll Child Advocacy Center [r]eports" concerning his daughter and its denial of his request is therefore affirmed. Because the question presented is resolved on the basis of KRS 620.050(7), consideration of the secondary argument relative to KRS 620.050(6)(a) is unnecessary.
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.
Kyle McPhersonGina OneyJon R. Klein
Footnotes
Footnotes
1 In failing to provide a "brief explanation of how the exception applies to the record withheld," the CHFS violated KRS 61.880(1).
2 It is unclear what formed the basis for this assertion; the record on appeal contains no supporting documentation.
3 KRS 61.878(1)(l) removes from application of the Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
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