Request By:
Mr. Woody Dunn, Director
Division of Licensing and Regulation
Office of the Inspector General
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
This opinion is in response to a request made of this Office by Mr. Kenneth S. Handmaker, Middleton & Reutlinger, 2500 Brown & Williamson Tower, Louisville, Kentucky 40202-3410. Mr. Handmaker stated in his request that on February 9, 1990, the Commonwealth of Kentucky, Cabinet for Human Resources (CHR), conducted an investigation of his clients, Garrard Convalescent Home, Inc., and Mr. Ralph L. Stacey, Jr. The investigation was prompted by a complaint of resident abuse at the home. The residents who were alleged to have been abused were minors. The CHR investigation concluded with a finding that all of the allegations were unsubstantiated.
Mr. Handmaker made a request to CHR for records relative to these allegations and the resultant investigation, pursuant to Kentucky's Open Records Law, KRS 61.870 - 61.884. He specifically requested:
. . . all documents that relate, refer to or constitute evidence of: (i) all written or verbal complaints received and the identity of the complainant(s); (ii) the investigations and their findings; and (iii) the recommendations and conclusions that the claims or complaints were not substantiated.
CHR timely responded to the request by providing a copy of its six-page investigation report. CHR deleted from the copy forwarded to Mr. Handmaker the name of the complainant and the names of the alleged victims, citing certain exclusions listed at KRS 61.878(1), with a brief explanation of why it felt those exclusions were applicable. CHR viewed the disclosure of the identities of the complainant and alleged victims as a "clearly unwarranted invasion of personal privacy." KRS 61.878(1) (a). As to the identities of the alleged victims, CHR cited as an additional ground KRS 61.878(1) (j), which excludes from mandatory disclosure information "made confidential by enactment of the general assembly. " The Act of the general assembly cited by CHR was KRS 620.050(4). All of the other requested documents were denied on the grounds that these records constituted preliminary documents within the exclusions of KRS 61.878(1) (g) and (h).
Mr. Handmaker asked on behalf of his clients for the opinion of this Office as to whether CHR acted consistently with the Open Records Act. The gravamen of his dissatisfaction with CHR's response appears to be that CHR denied him a copy of the complaint and the name of the complainant. Mr. Handmaker relies upon the authority of Kentucky State Board of Medical Licensure v. Courier-Journal, Ky.App., 663 S.W.2d 953 (1983) in support of his argument that these records are not exempt from inspection.
This Office, pursuant to KRS 61.880(2), visited the offices of CHR and reviewed its file on this investigation. The undersigned Assistant Attorney General also had telephone conversations concerning the denial with a representative from CHR. This discussion revealed that the initial complaint was verbally transmitted to an employee of CHR. This CHR employee then prepared a written complaint which was forwarded to the appropriate office within CHR. The essence of that written complaint is contained on the first two pages of the six-page investigation report.
OPINION OF THE ATTORNEY GENERAL
The issue of inspection and copying of the written complaint is controlled by prior case law. The Kentucky Court of Appeals has twice held that the exclusions under KRS 61.878(1) (g) and (h) "do not extend to the complaints which initially spawned the investigations. The public has a right to know what complaints have been made . . . ." City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658, 660 (1982). "[O]nce final action is taken . . . the initial complaints must be subject to public scrutiny." Kentucky State Bd. of Med. Licensure v. Courier-Journal and Louisville Times Co., Ky.App., 663 S.W.2d 953, 956 (1984). The essence of the initial written complaint is essentially contained on the first two pages of the six-page investigation report. Thus, denial of inspection cannot be justified on the privacy exemption of KRS 61.878(1)(a). Finally, KRS 61.878(1)(j) and KRS 620.050(4) is not applicable to the complaint or report which preceded and prompted CHR's investigation. Thus, this Office is of the opinion that CHR's denial of inspection of the written complaint which spawned the investigation was inconsistent with the Open Records Law.
The issue of disclosure of the verbal complaint or oral allegations which resulted in the CHR employee preparing a written complaint is somewhat more difficult to resolve. There is no actual document or public record of this verbal complaint other than the written complaint referred to above. Thus, there is nothing to inspect. Furthermore, it was not the verbal complaint or oral allegations which triggered or initiated the investigation by CHR, but rather the written complaint prepared by a CHR employee. This issue is controlled by a previous opinion of this Office in which it was stated as follows:
While, normally, the complaint which spawned the investigation and the report setting forth the final action taken by the public agency relative to the investigation are public records, in this particular situation an oral allegation rather than a written complaint initiated the investigation . . . [and therefore] is excluded from public inspection pursuant to KRS 61.878(1)(g) and (h).
[OAG 86-78, p. 4.] [Bracketed language added.] Also see OAG 90-58. Therefore, this Office if of the opinion that CHR properly denied "inspection" of the verbal complaint or oral allegations.
CHR's refusal to permit inspection or to divulge the identity of the complainant was based upon KRS 61.878(1)(a). However, a more appropriate exemption that is clearly applicable is KRS 61.878(1)(j), which excludes from inspection "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the general assembly. " KRS 620.050(4) was enacted by the general assembly and expressly provides that the "names of informants shall be withheld unless ordered by the court." KRS 620.050(4)(a). This Office has previously opined that it is proper for CHR to withhold from the public, including the alleged perpetrator of the abuse, the names of informants in situations of alleged child abuse. OAG 87-82. [Copy enclosed.]
CHR informed the undersigned Assistant Attorney General that Mr. Ralph L. Stacey, Jr., was not one of the persons suspected of causing abuse of minors at Garrard Convalescent Home, Inc. Therefore, he would not be entitled to any information obtained by CHR or its delegated representative as a result of the investigation conducted by CHR. KRS 620.050(4). Whether or not Mr. Handmaker, attorney for Garrard Convalescent Home, Inc., is entitled to information or inspection of documents obtained by CHR as the result of the investigation conducted by CHR is debatable. Arguably Garrard Convalescent Home, Inc., may be considered a 'person' suspected of causing abuse and therefore entitled to have information or public records divulged to its attorney provided that the attorney has written authorization from Garrard Convalescent Home, Inc., to make an open records request on its behalf. See KRS 620.050(4)(a) and KRS 446.010(26). However, this issue has not been expressly raised by Mr. Handmaker and it is unknown whether Mr. Handmaker tendered written authorization from his client, Garrard Convalescent Home, Inc., with his written request for inspection of records. It is felt unnecessary to address this issue in view of the above holding by this Office opining that the names of informants shall be withheld even from persons suspected of causing abuse. Mr. Handmaker has not objected to the deletion of the names of the alleged victims from the public records and therefore this Office declines to address this issue.
CONCLUSION
CHR acted consistently with the Open Records Law to the extent that it withheld from inspection the names of informants which spawned its investigation pursuant to KRS 61.878(1)(a) and (j) and KRS 620.050(4)(a). CHR also acted consistently with the Open Records Law to the extent that it denied inspection of the verbal complaint or oral allegations made by an individual to an employee of CHR. However, CHR acted inconsistently with the Open Records Law to the extent that it denied inspection of the written complaint which initially spawned the investigation. However, the names of informants contained within the written complaint may properly be withheld.
The Cabinet for Human Resources or Kenneth S. Handmaker may institute proceedings within thirty (30) days for injunctive or declaratory relief in the circuit court of the district where the public records sought for inspection are maintained pursuant to KRS 61.880(5).