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 violated the Kentucky Open Records Act in denying the January 27, 2010, request of April DuVal, Executive Director of The Council on Developmental Disabilities, Inc., for "copies of all investigations and follow-up activities completed on behalf of Richard Tardy, a recipient of SCL services . . . from the time he left Central State Hospital, ICF-MR/DD unit (Bingham Center) in late 2009 until his death in January 2010." (Original emphasis). Even assuming, for the sake of argument, that the Council is a "social service agenc[y]" within the meaning of KRS 209.140(3), it did not provide services to Mr. Tardy prior to his death nor has it otherwise demonstrated a "legitimate interest in the case" within the meaning of KRS 209.140(3). Because the Council does not fall within any of the other excepted categories found at KRS 209.140(1)-(5), the CHFS properly denied its request on the basis of KRS 209.140, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). However, the CHFS violated KRS 61.880(1) in failing to briefly explain how this exception applies to the records being withheld in a timely manner.
Although the Records Management Section of the CHFS Department for Community Based Services did issue a written response to Ms. DuVal on February 1, 2010, within three business days of receiving her written request per KRS 61.880(1) , it was the kind of generic form letter this office has consistently found to be procedurally deficient (citing "state and federal law," advising that "[p]ersonal information about other people may be redacted," and indicating that "a final review to determine what, if anything, may be released" would be performed upon receipt of the records in that office, with no reference to KRS 61.872(5) or mention of a specific time frame). In this instance, the CHFS did issue a final written response shortly thereafter, on February 9, 2010, upon receipt of her completed CHFS-305 - Authorization for Disclosure of Protected Health Information dated February 5, 2010, 1 but advised Ms. DuVal that she was "not entitled to the requested information as defined by (KRS 209.140) which delineates who is entitled to specific information," attaching a copy of that statute without explaining how it applied in accordance with KRS 61.880(1). By letter dated March 8, 2010, Ms. DuVal and Richard Bush, Board Member, initiated this appeal on behalf of the Council. 2
In prior decisions, the Attorney General has repeatedly admonished the CHFS that "its practice of issuing what appear to be boilerplate responses to records requests in order to secure additional time for final disposition of those requests beyond the statutorily imposed three working day deadline is contrary to both the spirit and the letter of the Open Records Act. " 07-ORD-123, p. 5 (original emphasis). See 07-ORD-030 (acknowledging that "volume of requests directed to CHFS and the nature of the records implicated, in conjunction with the staffing issues CHFS apparently faces, undoubtedly present CHFS with a unique dilemma," but observing in reference to "inherent deficiencies of the standard form letter utilized" by CHFS that the "practice currently employed by CHFS violates both KRS 61.880(1) and KRS 61.872(5)" and the Act "does not contain a provision extending the statutory deadline for CHFS or a waiver of the other procedural requirements"); 08-ORD-014 (noting that 07-ORD-030 "mirrors earlier decisions of this office dating back to at least 1995, all of which were postulated on the proposition that public agencies cannot adopt and implement policies 'which, by design, result in . . . delay[s] in the release of nonexempt public records'")(citation omitted). See also, 05-ORD-134; 96-ORD-168; 95-ORD-115. As in 07-ORD-123, at "the risk of redundancy," this office again reminds the CHFS that "[w]hile the Attorney General cannot compel the [CHFS] to implement a new policy, or otherwise impose penalties for violations of KRS 61.870 to 61.884, the courts are empowered to do so, and, in the face of a pattern of noncompliance, may well elect to do so." Id., p. 5. That being said, the delay was relatively minimal in this instance and there was no substantive error in the agency's final disposition of Ms. DuVal's request.
Upon receiving notification of the Council's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS. Quoting the language of KRS 209.140 , Mr. Klein first observes that the Council disagreed with the CHFS's determination, arguing that it qualifies as a social service agency under subsection (3), misquoted by the Council as (c). In support of its position, the Council noted that it was "established in 1952" and is "funded locally by Metro United Way and other groups." However, Mr. Klein asserts that a "simple review of the 'program sheet' included with the appeal reveals that the Council appears to be more of an advocacy agency than a service agency." Setting aside this issue, Mr. Klein observes that the CHFS "does not believe that the Council has a legitimate interest in this case." Having conducted an "exhaustive search," 3 Mr. Klein notes that he was unable "to locate any cases, whether Open Records Decisions or otherwise," construing the term "legitimate interest. " In accordance "with the established and accepted standards used by the Cabinet to determine access to confidential records," Mr. Klein notes that "for an interest to be legitimate, it must be more than personal or self-serving."
Elaborating upon this issue, Mr. Klein engaged in the following persuasive analysis:
In one of the very few cases in which the [CHFS] lost an Open Records Appeal involving KRS 209.140, the Kentucky Board of Nursing was denied [access to] records by the [CHFS] that pertained to a complaint of suspected patient abuse by a nurse. In reversing the [CHFS]'s decision, the Attorney General found, in 93-ORD-131, that the Board of Nursing was either a law enforcement agency ["relative to its enforcement of the laws relating to nursing"] with a legitimate interest in the case, or, in the alternative, a public agency engaged in the performance of a legitimate government function, namely the enforcement of KRS Chapter 314.
The case before you is very dissimilar to the Kentucky Board of Nursing case. Here, the appeal states:
This paragraph establishes that the Council is an old institution, that people associated with the Council knew Mr. Tardy, and that when he died the people at the Council wanted to know more about the circumstance of Mr. Tardy's death. Nothing in this paragraph qualifies the Council to receive the requested information.
However, there's more. The next paragraph in the Council's letter states:
This paragraph repeats that many people at the Council were Mr. Tardy's friends and that they want to know what happened to him, even listing other ways in which they are attempting to obtain information about Mr. Tardy's death. There is no exception for close friends in KRS 209.140.
The next paragraph in the Council's letter states:
The Council already has all of the information it needs in order to provide information and resources to Kentuckians. As they stated above, the Council already knows that the investigation did not warrant closure of the home. Unfortunately for the Council, there is also no "closure for companions" exception in KRS 209.140.
In the remaining paragraphs of the Council's letter, they claim eligibility to receive the requested information on the grounds that they are a social services agency. They restate how old the Council is, assert that they are funded by the Metro United Way and other groups, and that they offer many services throughout Kentucky. However, there is no allegation that the Council was providing services to Mr. Tardy at the time of his death.
At no point does the letter offer any kind of legitimate interest that the Council has in Mr. Tardy's records other than as friends who want to know about the details of Mr. Tardy's death. These are simply insufficient grounds under KRS 209.140.
In closing, Mr. Klein observes that examples of the kinds of interests deemed legitimate by the CHFS include a law enforcement agency investigating the circumstances surrounding a death, a regulatory agency ensuring that a regulated entity has complied with regulatory standards, and a professional medical or psychological licensing and accreditation body acting to determine whether standards of its profession have been violated. Because the Council's request is not grounded in this kind of interest, the CHFS believes that the "Council's interest in the records is not 'legitimate' in the sense intended by the statute." In the absence of a statutory or judicial definition of "legitimate interest, " and consistent with governing precedents, the Attorney General defers to the CHFS on this determinative question and, therefore, affirms the agency's denial on the basis of KRS 209.140.
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, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 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 the absence of a specific statutory definition, we "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, Ky. App., 661 S.W.2d 477, 480 (1983). 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, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co., above. When viewed in light of these governing principles, the mandatory language of KRS 209.140 validates the agency's position.
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). Complaints made to the CHFS against individuals are investigated pursuant to either KRS Chapter 620 (child abuse, neglect or dependency) or Chapter 209 (adult abuse, neglect or exploitation) . Resolution of this appeal turns on the mandatory language of KRS 209.140, pursuant to which:
All information obtained by the department staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
(1) Persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless ordered by the court;
(2) Persons within the department or cabinet with a legitimate interest or responsibility related to the case;
(3) Other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
(4) Cases where a court orders release of such information; and
(5) The alleged abused or neglected or exploited person.
Under the express terms of this statute, the CHFS must withhold all information acquired as a result of an investigation conducted pursuant to KRS Chapter 209 unless the requester can demonstrate that he or she falls within one of the excepted categories enumerated at subsections (1) through (5). 09-ORD-003; 08-ORD-051; 04-ORD-047. "Whatever injustice the law may work in such instances, we are constrained by the express language of the statute." 94-ORD-123, p. 2. The Council does not even contend that it falls within any of these statutorily recognized exceptions other than subsection (3). Although "social service agency" is not statutorily defined, the Council appears to be more of "an advocacy agency than a social service agency, " judging by the "program sheet" attached to its appeal (which outlines the "social service and advocacy roles" it serves according to the Council), as the CHFS correctly observed. However, even assuming for the sake of argument that the Council can be properly characterized as a "social service agency" for purposes of KRS 209.140, this office makes no finding on that issue as the Council has not demonstrated that it has a "legitimate interest in the case" in the relevant sense. Compare 93-ORD-132; 93-ORD-131.
The term "legitimate interest, " like "social service agency, " is not defined in the statute nor has the CHFS or this office discovered any prior Open Records Decision or governing case law on point. As the CHFS correctly argues, the reasons and circumstances relied upon by the Council do not establish a "legitimate interest in this case" within the meaning of KRS 209.140(3), however "legitimate" the Council's purpose might be in a general sense or from a public policy standpoint. 4 Although this office has not previously had occasion to construe KRS 209.140 under the circumstances presented, the Attorney General has generally upheld agency denials based on confidentiality provisions incorporated into the Act, including denials by the CHFS based on KRS 209.140 . 09-ORD-003; 08-ORD-051; 04-ORD-047; 98-ORD-97. See also 08-ORD-127, 04-ORD-228, 03-ORD-070, and 99-ORD-197, applying provisions of KRS Chapter 620. In fact, as a rule of general application, this office has consistently deferred to agencies' reasonable interpretations of their own confidentiality provisions in a variety of contexts absent binding legal authority to the contrary. 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)). The instant appeal presents no reason to depart from this approach. As in the past, without statutory or judicial authority to the contrary, "we must defer, within reason, to the Cabinet in its interpretation of its own confidentiality provisions." 98-ORD-97, p. 3 (deferring to CHFS relative to interpretation of KRS 209.140).
Because the Council did not provide services directly to Mr. Tardy or advocate specifically on his behalf while he was living, and the Council does not otherwise have a "legitimate interest in the case" based upon the agency's reasonable interpretation of this language, the Attorney General has no basis to find that a violation occurred when the CHFS denied its request on the basis of KRS 209.140.
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.
Richard BushJon R. Klein
Footnotes
Footnotes
1 The Records Management Section enclosed the form with its original response in accordance with 922 KAR 1:510, Section 3(1)(b)1.
2 Relevant excerpts of the Council's appeal were quoted in the agency's response thereto, which is quoted later in this decision.
3 The undersigned counsel was equally unsuccessful in locating either a statutory or judicial definition of this term.
4 In comparison, this office held in 06-ORD-048 that 45 CFR 164.502(g)(1) and (4) required the CHFS to provide the requester with a copy of a report prepared following the death of her mother in a nursing home as her mother would have been entitled to a copy per KRS 209.140(5) as the "alleged abused or neglected or exploited person," and the requester was the administratrix of her mother's estate. 06-ORD-048, p. 4. This office noted that "KRS 209.140 does not vest an executor, administrator, or any other person with authority to act on behalf of a deceased individual or the individual's estate," but recognized that Chapter 395 of the KRS does govern the "grant of 'authority to act on behalf of a deceased individual or of the individual's estate," and "that law, operating in tandem with 45 CFR 164.502(g)(4)," required the CHFS to accord the requester, as her mother's personal representative, the same treatment it would have accorded her mother." Id., p. 5.