Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in two separate requests for public records submitted to the Cabinet for Human Resources, Department for Social Services, the first on November 9, 1993, by Howard and Betty Milburn, and the second on November 13, 1993, by their daughter, Deborah Susan Milburn. The Milburns requested access to the record or records which disclose the identity of the person who filed a complaint with Adult Protective Services alleging that Deborah was being abused by her parents. Deborah is an adult who has cerebral palsy. Although she cannot speak, she communicates through a computer.
On November 11, 1993, Ms. Becky Fritts, Records Officer for Cabinet for Human Resources's Department for Social Services, denied Mr. and Mrs. Milburn's request. Ms. Fritts did not cite any exception to the Open Records Law authorizing the denial of the Milburn's request, but explained that KRS 209.140 "prohibits the sharing of names of informants. " On November 19, 1993, Commissioner Peggy Wallace responded to Deborah Susan Milburn's request. Commissioner Wallace stated:
Your father had made it clear in an earlier letter dated November 3, 1993, that he wishes to take action against this referral source. The Cabinet for Human Resources does not wish to contribute, either directly or indirectly, to any possible retaliation on the part of you or your father.
Without citing an exception authorizing the Cabinet's position, Commissioner Wallace denied Ms. Milburn's request.
On behalf of the Milburns, Mr. Charles H. Schaffner, Esq., submitted this appeal to the Attorney General, challenging the Cabinet's denial of his clients' requests. In his letter of appeal, Mr. Schaffner asserts:
There is no question that Ms. Deborah Susan Milburn is entitled to the disclosure of ALL INFORMATION, including the name of the complaining party. Further, her parents may obtain the information with a court order, KRS 209.140(a); and recent authority from your office suggests that the identity of the complaining party will be released to them[.]
In support of this position, Mr. Schaffner cites OAG 91-230 in which we held that KRS 209.140 and KRS 61.878(j), now (k), 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 persons suspected of abuse, neglect, or exploitation, inter alia.
We are asked to determine if the Department of Social Services properly denied the Milburns' requests for access to records containing the name of the complaining party. For the reasons set forth below, we conclude that the Department's denials were procedurally deficient, and that it erred in refusing to release the name of the complaining party to Deborah Susan Milburn, the alleged victim of abuse, on the grounds asserted. Although its response was deficient, the Department's denial of Mr. and Mrs. Milburn's request was substantively correct.
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)(k). KRS 209.140 provides:
All information obtained by the department [for Social Services] staff or its delegated representative, as a result of an investigation [into suspected adult abuse] 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;
(b) persons within the department or cabinet with a legitimate interest or responsibility related to the case;
(c) other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
(d) cases where a court orders release of such information; and
(e) the alleged abused or neglected or exploited person.
As noted, KRS 209.140 is incorporated into the Open Records Law by operation of KRS 61.878(1)(k). Together, these provisions authorize the Department to withhold information compiled in the course of an investigation of adult abuse except to certain enumerated classes of individuals. OAG 91-230.
Deborah Susan Milburn falls within one of these classes. She is "the alleged abused or neglected or exploited person." Thus, the Department may not rely on these provisions in denying her request. As "the persons suspected of abuse, neglect, or exploitation, " Ms. Milburn's parents also fall within one of the statutory exceptions in KRS 209.140; pursuant to this exception, however, it is proper for the Department to withhold the names of informants. Since this is precisely the information which Ms. Milburn's parents sought, we believe the Department for Social Services was justified in withholding records which disclose that name.
Both responses were technically deficient insofar as the Department failed to 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). The Department should review the cited provision to insure that future responses conform to the Open Records Law.
Mr. and Mrs. Milburn and the Department for Social Services may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.