Request By:
Mr. Buddy Adams, Secretary
Cabinet for Human Resources
Commonwealth of Kentucky
Frankfort, Kentucky 40621
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Ms. Pam Clay, Residential Advocate, Protection and Advocacy Division, Office of Public Advocacy, has appealed to the Attorney General pursuant to KRS 61.880 the denial by the Bureau for Social Services, Department for Human Resources, to inspect certain public records in custody of the Bureau. The request was denied by letter from Mr. Paul F. Fauri, General Counsel, to Mr. Tom Uno, Attorney, Office for Public Advocacy dated June 8, 1981. Mr. Fauri based his denial on KRS 199.335(9) which makes confidential information in public records concerning child abuse. The records requested were described in the request as:
"Investigative report done by Bureau for Social Services of the alleged abuse of five residents of Hazelwood, including Virginia Neal, Judy Sweat, Michael Whited, Stephen Brown, and Stephanie Rainey."
In her letter of appeal Ms. Clay states that she is requesting the inspection of the record, "on behalf of Mrs. Rosemary Leach, the mother of Stephanie Rainey. She states: "It is reasonable for me to assume that as a parent, Mrs. Leach has a right to know the circumstances surrounding the injuries her daughter sustained while receiving care at Hazelwood ICF/MR." Ms. Clay states that she is making her request under KRS 194.060(2) which states in part:
Notwithstanding any existing state statute or regulation to the contrary, any pertinent information concerning individual clients, patients, or applicants in possession of any state agency may be shared with any authorized representative of any other state or local governmental agency, if such agency had a direct, tangible, and legitimate interest in the individual concerned or his immediate family. . . ."
In a letter to Mrs. Margaret Hockensmith, Executive Assistant, Bureau for Social Services, from Mr. Thomas Uno, Residential Advocate, dated May 28, 1981 Mr. Uno stated the following:
"Also, since the Protection and Advocacy Division has the duty to seek remedies to ensure the protection of the rights of the developmentally disabled (KRS 31.030), pursuit of investigation services is a legitimate government function for purposes of KRS 61.878(4) and KRS 194.060(2), which authorize exchange of records and sharing of information between public agencies."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the Bureau for Social Services acted in accordance with the Open Records Law, KRS 61.870 to 61.884, in denying inspection of the requested records.
As stated above, Ms. Clay states that she is making the request to inspect the investigative report on behalf of Mrs. Rosemary Leach, mother of Stephanie Rainey, one of the alleged victims of child abuse at Hazelwood. Mrs. Clay does not state that the request for the records is made for a governmental purpose and, therefore, we believe that the Bureau for Social Services is not required under KRS 61.878(4) to make the investigative report available to the Office for Public Advocacy which avowedly is making the request on the behalf of an interested individual. In OAG 82-548 we said:
"When one public agency requests of another the inspection of records under KRS 61.878(4) the requesting agency has the duty to assure the responding agency that it needs to inspect the records in the performance of a legitimate government function. "
In the case Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981) the Court said on page 111:
"We do not consider our views to be violative of KRS 61.878(4) because nothing contained therein entitled one governmental agency to demand from another information which does not serve a governmental need. In other words, there is no unqualified right for one entity to examine the total personnel files of another."
The Office for Public Advocacy is a governmental agency which has duties pertaining to "the pursuit of legal, administrative, and other appropriate remedies to insure the protection of the rights of the developmentally disabled. " When the Office of Public Advocacy can give assurance that it is seeking the inspection of records in another agency in carrying out its statutory function it is entitled to inspect records in the custody of the other agency even though the records are made confidential by statute. When it is acting only on behalf of an individual who desires access to records which are unavailable to him because of a confidentiality statute, the responding agency is not required to allow inspection of the records by the Office of Public Advocacy.
The requested records on this appeal have to do with an investigation of alleged child abuse. In OAG 82-39 we said: "We believe that no interpretation should be made of the statute which would inhibit persons having knowledge of a case of child abuse from reporting such knowledge to the authorities. We, therefore, believe that all facts connected with the report of child abuse, even the fact that a report was made, should be kept confidential. "
In summary, we conclude that the request on this appeal was not made in carrying out a governmental function but was made on behalf of an individual and was therefore properly denied.
As directed by statute a copy of this opinion is being sent to the requester who has the right to challenge it in court.