Request By:
Mr. Richard N. Belding, State Archivist
Department for Libraries and Archives
P.O. Box 537, Coffee Tree Road
Frankfort, Kentucky 40602
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You have written to this office for an Opinion of the Attorney General as to whether certain index books of birth and death records are public records within the meaning of Kentucky law. You also ask whether these records should be made available for public inspection. This is an advisory opinion issued pursuant to KRS 15.025. We do not exercise adjudicatory authority to determine rights of inspection of public records under KRS 61.880; however, this opinion may be utilized should a formal request for inspection of records be made at some future date.
We are of the opinion that the index books are public records and that they should be made available for public inspection. Although the state registrar may lawfully retrieve the books from local health departments and store them, he may not authorize their destruction without the approval of the Archives and Records Commission or authorize the transfer of the records to other agencies without the approval of the Department for Libraries and Archives.
Until recently, birth and death certificates maintained by the Vital Records Office of the Cabinet for Human Resources have been considered public records which were open for public inspection under KRS 61.872. The Office of Vital Statistics has published a series of 142 index books known as the Kentucky Register of Births & Deaths , which alphabetically list the names of each person who either was born or died in the Commonwealth from 1911 until 1969. An aspect of the Register is that, since the names of newborn children would be listed alongside the full maiden name of the natural mother, children who were subsequently adopted might still be listed in the Register under their names at birth. In writing this opinion, we recognize that the confidentiality restrictions implicit in various state laws are designed to protect the interests of adopted children as well as their natural parents.
At least one copy of the Register series has been published and distributed to each of the various county health departments across the Commonwealth. Additionally, several sets of the Register , at one time or another, have been distributed to public libraries and other institutions. The Register has even been copied and microfilmed by private institutions, such as the Church of Jesus Christ of Latter Day Saints, which microfilmed the Register in 1970. Some of the microfilm copies have been distributed to various libraries across the country. In fact, the Latter Day Saints gave copies of their microfilm to some of the Kentucky university libraries, where the microfilm continues to be available for public inspection.
In the past, thousands of researchers have visited the Office of Vital Statistics in order to inspect various birth and death records stored there. Due to the overwhelming number of requests, meeting the various requests to inspect the birth and death records has sometimes presented a burden to the employees of the Office of Vital Statistics. Apparently in response to some of the problems incurred at the Office of Vital Statistics, the 1990 Kentucky General Assembly enacted H.B. 64, designated as "An Act relating to vital statistics, " which made several changes to Kentucky laws relating to the maintenance of vital statistics. The new law also somewhat limited public access to vital records. The sponsors of the new law apparently intended to improve the accuracy and integrity of the records and to limit what the Cabinet for Human Resources perceived as an overwhelming burden in complying with various researchers' requests to inspect birth and death records.
At some point subsequent to the enactment of H.B. 64, the Cabinet decided to discard the sets of the Register and replace them with microfiche copies. Officials of the Cabinet believed this decision would solve several problems. Microfiche requires less space than the 142 volume set of the Register . Microfiche is also easier to update, and the state registrar can more conveniently delete entries of births in the microfiche in the event that at some subsequent date the entry became confidential due to adoption proceedings. When the decision to destroy the various sets of the Register was made, various concerned individuals requested that the sets of the Register be given to private libraries and other public institutions, since the Register was often utilized for research purposes. The idea to give away the old sets of the Register was apparently considered by the Cabinet and later rejected.
On August 31, 1990, a memorandum was mailed by the Cabinet to the local registrars which stated, "Upon receipt of this memo you are instructed to destroy all black indexes [the Register ] in your possession." This decision created enormous public resistance, prompting various officials to reevaluate the decision to destroy. Five days later, on September 5, 1990, another memorandum was sent out by the Cabinet, requesting local registrars to ignore the August 31 memorandum which had directed the local registrars to destroy their sets of the Register .
We first address whether the copies of the Kentucky Register of Births & Deaths are public records and whether they are subject to public inspection under the Open Records Law. Under KRS 213.031(5) and 213.131(2), the state registrar is required to distibute copies of updated indexes of birth and death records to the local registrars. The microfiche index will be updated periodically, about once every five years, with confidential information relating to adoptions deleted from the microfiche with each update. Both the microfiche copies and the index books are nevertheless public records under KRS 61.870(2) and clearly are available for public inspection under KRS 61.872(1) and 213.131(2) and (3). KRS 446.080(3) states, "No statute shall be construed to be retroactive, unless expressly so declared." Since the Register has been available for public inspection for many years, we believe that the new legislation does not in any way make confidential records which have been open to the public for such a lengthy period of time.
KRS 213.031 designates the state registrar of Vital Statistics as the custodian of all of the index books which are presently in the possession of local registrars or in the possession of the Cabinet. KRS 213.031(1) grants the state registrar broad powers with regard to administering the objectives of the laws pertaining to vital statistics. We believe that these powers include the power to retrieve and collect the sets of the Register from the local registrars and to properly store them in accordance with other regulations. Although the state registrar has the authority to retrieve the indexes, as noted, and to store them at a suitable location in his discretion, we are of the opinion that he does not have the authority to discard or destroy them without the approval of the Archives and Records Commission, as will be discussed in greater detail in this opinion.
Next we discuss the extent to which the state registrar or the Cabinet for Human Resources would be held liable in a situation in which information relating to adoptions was divulged by the Cabinet. It is difficult to provide a definitive answer as to what the Kentucky Board of Claims might rule in proceedings which might be instituted by a party who felt aggrieved by a disclosure. We believe that the result will largely depend upon the facts and circumstances of an individual case. For this reason, we decline to speculate as to what the result would be in such a proceeding, but we will endeavor to provide a comprehensive summary of the law pertaining to the liabilities of the Cabinet should state employees make an unlawful disclosure of confidential birth records.
In general, the state, its departments, and agencies are immune from lawsuits under the doctrine of sovereign immunity, with certain limited exceptions specified in the statutes. See KRS 44.072. Claims for negligence on the part of the Commonwealth, its departments, agencies, officers, agents, or employees acting in their official capacities must be filed in the Kentucky Board of Claims, which has exclusive jurisdiction of such matters under KRS 44.070 and 44.072. Thus, a party claiming to be aggrieved by the Cabinet's disclosure of information relating to an adoption would have to prove that the Commonwealth or its agent was negligent. With regard to the particular question at hand, the elements of negligence include (1) an affirmative duty that the Cabinet not divulge the information at the moment the information was released; (2) breach of that duty; and (3) damages. We will discuss each of these elements with the question at hand.
With regard to proving breach of an affirmative duty, we believe that a complaining party would have to show that, at the moment the Cabinet released the information complained of, the Cabinet was legally prohibited from disclosing the information. The time at which the information was released is crucial because we perceive that there may be circumstances in which, at the moment the information was released, there was no statute which prohibited the Cabinet from releasing it. For example, if a child continued to live with his natural parents for a number of years before he was legally adopted, his original birth certificate is considered a public record under prior law until a court of competent jurisdiction had entered an order that the child had been legally adopted. If the Cabinet had released the child's birth certificate to some party sometime between the time of his birth and the date of his legal adoption, the Cabinet would have been within its statutory authority. In other words, the Cabinet had no affirmative duty to hold confidential the birth certificate of a child who had not been legally adopted. After the adoption was ordered by a court of competent jurisdiction, under prior law the child's original birth certificate then became a confidential record, and the Cabinet could no longer lawfully release a copy of the original birth certificate under KRS 199.570. Nevertheless, we note that under both prior law and under present law, there is no requirement that the Cabinet retrieve copies of birth certificates which were issued prior to an adoption taking effect, nor do we believe that the Cabinet has an affirmative duty to locate and destroy information which has been released to the public prior to the disposition of an adoption proceeding. Applying these principles to the facts at hand, we do not believe that the mere fact that sets of the Register are presently available for public inspection would violate any Kentucky statutes, simply because, at the time the Register was published, the information contained in the Register was not confidential and the Cabinet had no affirmative duty to restrict public access to the information.
With regard to proving neglect of duty, we believe that a complaining party would have to prove that on the date of release of the records, the Cabinet breached its duty to withhold the information. The complaining party would have to establish the date of the injury in order to avoid a time bar within the applicable statute of limitations. The most recent index book published by the Cabinet bears the date of 1969, some twenty-one years ago. Under the authority of KRS 44.110, we believe that an alleged injury resulting from the release of birth records would have occurred at the moment the record was released for public inspection. Under KRS 44.110(3), the applicable statute of limitations for negligence cases against the Commonwealth or its agents, an action for damages cannot be brought if more than two years has elapsed from the date of the alleged negligent act. In the case of the various sets of the Register , we believe that the statute of limitations has already expired since the information has been released more than two years ago. For this reason, we do not believe that the Cabinet is liable for divulging information that has been available for public inspection for at least twenty-one years.
Next, we address the question as to whether the Cabinet for Human Resources has the authority to retrieve the sets of the Register which have been given to various public and private libraries and other institutions. We believe that the sets of the Register are "property" within the legal definition of the term. We further believe that the answer to this question concerns the common law of property as it relates to gifts of personalty. Under the common law, two elements are necessary to establish that a gift has been made, i.e. donative intent and possession. We believe that private or public institutions which own copies of the Register are under no legal obligation to return this property to the Cabinet for Human Resources. We note however that if the institution is in possession of copies of the Register under a loan agreement with the Cabinet, the Cabinet as the owner might request that they be promptly returned depending upon the specifications of the loan agreement.
We now turn to the question as to whether the Department for Libraries and Archives must comply with a request from the Cabinet that copies of the index books stored at the archives be removed from public inspection. The statutes provide little direction as to who becomes the legal custodian of records which are transferred to the Kentucky Department for Libraries and Archives. KRS 61.870 defines "custodian" as "the official custodian or any authorized person having personal custody and control of public records. " (Emphasis added.) Under this statute, we believe that either the state archives or the official custodian of the agency might be legally deemed to be the custodian of the records. Since we believe that the copies of the Register are open to public inspection, we do not believe that the Department for Libraries and Archives need comply with the request of the Cabinet to restrict access to the records.
The Cabinet has requested that the Department for Libraries and Archives collect copies of the Register from the various libraries which possess copies under KRS 171.140. We have carefully examined KRS 171.140 and conclude that the Department for Libraries and Archives does not have the power to retrieve the various copies of the Register from public libraries. KRS 171.140 empowers the Department to "give assistance and advice" to various local libraries with regard to "organizing such libraries or assist[ing] in the improvement of those already established," but the statute does not empower the Department to remove books or other research materials from public libraries in the Commonwealth. Our opinion here rests in part upon the fact that there are various ways in which public libraries are organized. Local public libraries are local agencies subject to the control of their local boards, as set forth in KRS 173. University libraries are subject to the control of the university's governing body and the hierarchy of university officers in charge. No statute gives such broad supervisory authority to the Department for Libraries and Archives.
Next, we address the issue as to whether state university libraries are required to remove their copies of the Register from public inspection or to tender their copies to the Cabinet. We believe that state university libraries are not legally required to tender their copies of the Register to the Cabinet. Our reasoning here is based upon several factors. According to the information which we have at hand, the copies of the Register now in possession of state university libraries are actually microfilm copies given to them by the Latter Day Saints, a private organization. There is no indication that the microfilm was unlawfully copied by the Latter Day Saints. As such, the university libraries are in possession of a private publication, similar in most respects to a privately published book, and we are aware of no state law which permits the removal of books or other materials from university libraries simply because they contain information which might be sensitive. Thus, the microfilm copies now in the possession of the university libraries are private publications, and the Cabinet has no legal authority to replevin these materials. The legislature could have enacted a law which would have required the state universities to tender their copies of the index books to the Cabinet, but the legislature chose not to do so.
Finally, we address the question as to whether the Cabinet might legally give the sets of the Register to various public institutions without incurring civil liability. We emphasize that the transfer of public records is within the authority of the Department for Libraries and Archives under KRS 171.560, 171.580. The destruction of public records is within the authority of the Archives and Records Commission under KRS 171.420; see also KRS 171.670. We believe that the Department for Libraries and Archives can lawfully authorize transfer of the records to suitable facilities, should it choose to do so. Since we do not believe that the Cabinet for Human Resources or the Department for Libraries and Archives will incur liability for the release of information in the records, we do not believe that there would be any liability to either state agency should a decision be made to transfer the copies of the Register to other agencies. Should the Department for Libraries and Archives elect to authorize the transfer of the copies of the Register to other agencies, we recommend that a disclaimer be placed inside each of the volumes of the Register which would indicate that the information contained in the Register may not be accurate and that the Register does not represent an update-to-date listing of Kentucky births and deaths.
We wish to admonish all state agencies that under present law, they should not destroy public records without the authority of the Archives and Records Commission, except under specific circumstances. Although the Cabinet for Human Resources has rescinded its memorandum which directed local registrars "to destroy all black indexes in your possession" upon receipt of the memorandum, we note that the order was sent by the Cabinet without the approval of the Archives and Records Commission. KRS 171.420 designates the Archives and Records Commission as the sole authority in the Commonwealth which may authorize the destruction of state or local public records. KRS 519.060 provides criminal penalties to a person who "Knowing he lacks authority to do so, he intentionally destroys , mutilates, conceals, removes or otherwise impairs the availability of public records. " (Emphasis added.)
After considering the various elements of law which are outlined above, we are of the opinion that the index books are public records and that they should be made available for public inspection. Although the state registrar may lawfully retrieve the books from local health departments and store them, he may not authorize their destruction without the approval of the Archives and Records Commission or authorize the transfer of the records to other agencies without the approval of the Department for Libraries and Archives.
We trust that this opinion will be of some assistance to you.