Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services ("CHFS" or "Cabinet") violated the Kentucky Open Records Act in the disposition of Mark Hardin's August 10, 2016, request for adoption records relating to children placed with the Kentucky Children's Home in November, 1927. For the reasons that follow, we find that the Cabinet committed procedural violations of KRS 61.880(1) in not citing the specific exception authorizing nondisclosure of the records when it responded to the initial request, and in not responding to Mr. Hardin's request in writing within three business days. On appeal, the Cabinet provided the statutory basis for nondisclosure of the records, and we find no substantive violation in the disposition of this request.
Mark Hardin sent an email to Larry Weese, Department for Community Based Services, CHFS, on August 8, 2016, asking if a group of records 1 were available on microfilm for viewing. Mr. Weese responded the same day stating that the records were not "in the public domain" and that he would need a court order to allow any access. Mr. Weese invited Mr. Hardin to call him if he wanted to discuss the matter. By letter dated August 10, 2016, Mr. Hardin sent a request for the records to Mr. Weese. Mr. Hardin requested the records regarding four children placed into the Kentucky Children's Home on or about November, 1927. Mr. Weese requested the records for a genealogy project he is working on. Mr. Weese sent an email to Mr. Hardin on August 16, 2016, asking that Mr. Hardin call him to discuss the records request. Mr. Weese and Mr. Hardin engaged in a telephone conversation on August 19, 2016, wherein Mr. Weese again denied the request for records. Mr. Hardin filed his appeal to this office by letter received on August 29, 2016.
David T. Lovely, Office of Legal Services, responded to this appeal on behalf of the Cabinet. Mr. Lovely stated that records for youths at the Kentucky Children's Home are adoption records as the children would have been committed to the state. The Cabinet, through the Kentucky Children's Home, took children into state custody in order for them to ultimately become adopted, and if not, to remain in state custody until reaching the age of majority. Mr. Lovely stated: "Records of this nature are sensitive and not for public release, which is why the General Assembly passed legislation to ensure that all adoption records remain confidential unless a court orders the release." He further explained that KRS 199.570 is the statute which makes adoption records confidential (except for release under a court order), and that KRS 199.570 is an exemption to the Open Records Act, incorporated through KRS 61.878(1)(l).
We first note that the Cabinet committed a procedural violation of KRS 61.880(1) in not responding to Mr. Hardin's written request for records of August 10th, as required by the Open Records Act. Although Mr. Weese was clearly operating in good faith in informally responding to Mr. Hardin's email request, and in discussing the request with him over the telephone, the Open Records Act sets out specific actions to be taken upon receipt of a request for records. KRS 61.880(1) requires, in relevant part, that the agency respond in writing to the requester, and that the response be within three business days of receipt of the request for records. The Cabinet first violated KRS 61.880(1) when it failed to respond in writing to the August 10th letter, and also failed to respond within the three day period required by that statute. Again, Mr. Weese's email from August 16th and the phone call on August 19th were meant to respond to the substance of Mr. Hardin's request, but CHFS cannot ignore the requirements of the Open Records Act. In its responses to Mr. Hardin, the Cabinet also failed to provide "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). As CHFS did not cite the specific exception authorizing nondisclosure, and provide an explanation as to how the exception applied to the record withheld, its response was deficient.
As to the substantive question of whether the Cabinet properly denied disclosure of the adoption records, KRS 199.570(1)(c) provides:
No person having charge of any adoption records shall disclose the names of any parties appearing in such records or furnish any copy of any such records to any person or other entity that does not meet the requirements of KRS 199 . 572 , except upon order of the court which entered the judgment of adoption. (Emphasis added.)
Mr. Hardin does not meet the requirements of KRS 199.572, which allows disclosure of adoption records, without a court order, only to an adult adoptee, the biological parents, or a contractor engaged by the Cabinet to locate the biological parents. The restriction set forth in KRS 199.570(1)(c) is deemed incorporated into the Open Records Act by KRS 61.878(1)(l) . 2 In light of these statutes, we can only conclude that Mr. Hardin must obtain a court order in order to gain access to the adoption records he seeks. See 93-ORD-84 (the Cabinet "is absolutely foreclosed from releasing adoption records to an adoptive parent, a relative, or any other person, in the absence of a court order"). For that reason, we find no error in the Cabinet's refusal to provide the requested records.
Either party may appeal this decision 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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