Request By:
Mr. Richard Newman, Manager
Adult Services Branch
Department for Social Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
On behalf of her client, Mr. Shayne Ferguson, Ms. Lisa English Hord has appealed to the Attorney General, pursuant to KRS 61.880, your response to her August 6, 1991, request to inspect certain records believed to be in the possession of the Adult Services Branch of the Department for Social Services. Specifically, Ms. Hord requests access to "any and all records the aforementioned agencies might have concerning any investigation" involving her client and Kathy Rice, including:
(a) any statements which may have been made by any person concerning Shayne Ferguson or Kathy Rice;
(b) a copy of any alleged incident report;
(c) A copy of any notes which the investigators might have made documenting conversations with persons contacted during the course of the investigation; and
(d) any other information concerning Kathy Rice or Shayne Ferguson.
Ms. Hord explains that Mr. Ferguson is a physical therapy student at the University of Kentucky who observed Ms. Rice, in a nursing home environment, to fulfill an academic requirement. She indicates that he wishes to cooperate in the investigation or respond to any charges leveled against him.
You responded to Ms. Hord's request through Angela M. Houlihan, a paralegal employed by her firm, in a letter dated August 12, 1991, advising her that because Mr. Ferguson "is not '. . . a person suspected of abuse, neglect, or exploitation . . .' [see KRS 209.140(a)] pertaining to any adult protective services investigation, there is no Departmental information which may be furnished you or your client."
In her letter of appeal to this Office, Ms. Hord renews her request for records pertaining to the investigation, noting, "It is difficult to be more specific concerning this request because my office has received nothing from any state agency which would allow us to pinpoint whatever documents which may be necessary." She asks that we review your agency's response to her request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that although your response was technically deficient, you correctly advised Mr. Hord that no records exist which satisfy her request.
OPINION OF THE ATTORNEY GENERAL
Among the documents which may be excluded from public inspection in the absence of a court order are public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. KRS 61.878(1)(j). KRS 209.140 provides in part:
All information obtained by the department [for social services] staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except: (a) persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless ordered by the court . . . .
These provisions operate in tandem in authorizing the department of Social Services to withhold information compiled in the course of an investigation of adult abuse except to certain enumerated classes of individuals.
In your August 12, 1991, letter to Ms. Hord, you stated that because Mr. Ferguson is not suspected of abuse, neglect, or exploitation, within the meaning of KRS 209.140(a), your agency has no information which can be furnished to her or her client. You confirmed this in a conversation with the undersigned on December 11, 1991, explaining that Mr. Ferguson is not an alleged perpetrator of adult abuse. A second review of the documents pertaining to the Department's client, Kathy Rice, was conducted by Mr. Michael Deep, an attorney employed by the Cabinet for Human Resources, on December 12, 1991. That review disclosed that although the Department received a report of an incident involving Ms. Rice from Homestead Nursing Home on July 15, 1991, Mr. Ferguson was not identified as the perpetrator. Further, the Department did not possess any documents naming Mr. Ferguson, other than correspondence between Ms. Hord and various employees of the Department.
It is the opinion of this Office that although your response to Ms. Hord's open records request was technically deficient, insofar as you did not cite an exception authorizing nondisclosure or provide a brief explanation of how the exception applies to the records withheld, as required by KRS 61.880(1), you properly advised Ms. Hord that no records exist which satisfy her request.
KRS 209.140 prohibits the release of information obtained by the Department for Social Services as a result of an investigation of adult abuse to anyone except, inter alia, persons suspected of abuse, neglect, or exploitation. None of the documents generated in the course of the investigation of the incident involving Kathy Rice referenced Mr. Ferguson, nor was he suspected of abuse, neglect, or exploitation. Accordingly, the Department cannot divulge the information compiled in the investigation pursuant to KRS 209.140, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(j).
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Lisa English Hord, who has the right to challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).