Request By:
Mr. Larry Michalczyk
Commissioner
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Katherine K. Kendall, attorney representing Jack and Creeda Kessling, has appealed to the Attorney General pursuant to KRS 61.880 your denial of her open records request to inspect the case record of Angela Phipps. Ms. Kendall initially requested to inspect the case record of Angela Phipps by letter dated November 26, 1990, and received by the Cabinet for Human Resources on November 28, 1990. You responded to this request four working days later by letter dated December 4, 1990. This letter denied inspection based upon KRS 610.304(1). Ms. kendall responded to this denial with a letter dated December 10, 1990, and received by the Cabinet for Human Resources on December 12, 1990. This letter essentially clarified her initial request and explained that she was not seeking to review juvenile court records, but records maintained by the Cabinet regarding the treatment provided to Angela Phipps. Ms. Kendall requested that the Attorney General's Office or some other objective party be consulted to determine whether her request should be granted or denied. You responded by letter dated December 21, 1990. This response denied Ms. Kendall's second request for inspection based upon KRS 61.878(1)(a)(j) and KRS 194.060. Your letter also provided a brief explanation that since Ms. Kendall did not represent Angela Phipps, the legal guardian of Angela Phipps, or a governmental agency, her open records request could not be granted without a court order.
Ms. Kendall filed an open records appeal of this second denial by letter dated January 28, 1991, and received in this Office on February 1, 1991. Ms. Kendall states that Jack and Creeda Kessling were the "foster" parents of Angela Phipps for one year. During this one year period, the Kesslings were informed of Angela Phipps' circumstances, and "kept abreast of her development and situation during the time that she was in their care." Ms. Kessling essentially argues that the privacy exemption of KRS 61.878(1)(a) is not applicable because the Kesslings have already been provided this information and therefore "these records concerning Angel's condition and past have already been revealed to the Kesslings. " Ms. Kendall states that the Kesslings have a quality assurance hearing before the Cabinet for Human Resources to determine whether or not the Department for Social Services complied with its own regulations and that is the reason for their attempt to inspect Angela Phipps' case file. Ms. Kendall further argues that the exemptions of KRS 61.878(1)(j) and KRS 194.060 are not applicable because the Kesslings fit within the exception of KRS 194.060(1)(a) since they were the former guardians of Angela Phipps, although there was admittedly no guardianship order. Ms. Kendall cites OAG 77-45 in support of this argument.
The undersigned Assistant Attorney General talked with Ms. Kendall by telephone and with representatives of the Cabinet for Human Resources to obtain clarification of some of the underlying facts. It would appear that on or about April 19, 1990, the parental rights of Angela Phipps' natural parents(s) were terminated. The Kesslings apparently were "entrusted" with the care of Angela Phipps for approximately one year until August of 1990.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part as follows:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three(3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request within the three(3) day period, of its decision . An agency response denying , in whole or in part, inspection of any record shall include 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). [Emphasis added.]
Neither of your denial letters complied with the three (3) working day requirement for responding to open record requests. To this extent the Cabinet for Human Resources failed to act consistently with the provisions of KRS 61.870 to KRS 61.884. Furthermore, your denial letter of December 21, 1990, failed to provide a proper explanation of how the exception of KRS 61.878(1)(a) was applicable as required by KRS 61.880(1). It is not sufficient to merely recite the specific statutory exception that is applicable and to quote the statutory language. Your concluding paragraph did provide a brief explanation of the applicability of KRS 61.878(1)(j) and KRS 194.060 to the extent that you stated as follows:
Since you do not represent the client, the client's legal guardian, or a governmental agency, your request must be denied in accordance with the above statutes, unless you obtain a court order.
It is expected that the Cabinet for Human Resources will strictly comply with the statutory requirements of KRS 61.880 in the future when denying inspection of records.
Your denial letter partially relied upon the statutory exemption of KRS 61.878(1)(j) which provides as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon an order of a court of competent jurisdiction:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
The general assembly enacted KRS 194.060(1) in order to prohibit or restrict or otherwise make confidential specific records and reports of the Cabinet for Human Resources, with certain exceptions. KRS 194.060(1) provides as follows:
The secretary shall develop and adopt regulations and rules which protect the confidential nature of all records and reports of the cabinet which directly or indirectly identify a client or patient or former client or patient of the cabinet for human resources and which insure that these records are not disclosed to or by any person except as, and insofar as:
(a) The person identified, or his guardian, if any, shall give his consent; or
(b) Disclosure may be permitted under state or federal law.
Pursuant to this statutory mandate, the Secretary of the Cabinet for Human Resources has promulgated regulations to protect the confidential nature of records and reports of the Cabinet which identify present and former clients and patients of the Cabinet. See 905 KAR 1:005 Section 5(6) making all case records confidential.
Ms. Kendall argues that the Kesslings fall within the exception of KRS 194.060(1)(a) because "they were individuals entrusted with the custody of the child" and therefore were the guardians of Angela Phipps. In support of this argument, Ms. Kendall refers to OAG 77-45. This Office rejects this argument and opines that the Cabinet for Human Resources acted consistently with the open records law when the Cabinet denied inspection based upon the exemption of KRS 61.878(1)(j) and KRS 194.060 1). It is therefore not necessary to consider whether the Cabinet for Human Resources properly relied upon the exemption of KRS 61.878(1)(a) and this Office declines to render an opinion on this issue in view of the Cabinet's failure to explain how this statutory exemption is applicable.
In OAG 77-45, this Office interpreted the meaning of the word "guardian" as used within KRS 194.060(1)(a). This office opined as follows:
You asked specifically if the word "guardian" includes the child's parents, court appointed guardian and/or relatives or friends who have been entrusted with the mere custody of the child in the absence of a guardianship order. We believe that it applies to all of the three above . . . .
A person who has custody of a child without an appointment by a court is a voluntary or de facto guardian . . . . Although a de facto guardian does not have control over the property of the child, we think that his interest is sufficient that he should be included under this statute pertaining to confidentiality of records.
We would point out that the child himself would not be capable of giving consent to disclosure of his records unless he has attained his majority, that is, his eighteenth birthday.
Based upon representations made to the undersigned Assistant Attorney General, it would appear that the Kesslings were formally "de facto" guardians of Angela Phipps. However, this status as "de facto" guardians ceased in August of 1990. At the time of the open records request by Ms. Kendall on behalf of the kesslings, this relationship had ceased to exist and Angela Phipps was no longer in the actual custody of the Kesslings. This Office is of the opinion that the word "guardian" as used in KRS 194.060(1)(a) does not include former guardians, but refers to present guardians. OAG 77-45 is therefore distinguishable and not controlling in this open records appeal.
The Cabinet for Human Resources acted consistently with the open records law by denying inspection of Angela Phipps case record pursuant to KRS 61.878(1)(j) and KRS 194.060(1) and regulations promulgated thereunder. Katherine K. Kendall may institute proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the records are maintained pursuant to KRS 61.880(5).