Request By:
Steven Farmer
P. O. Box 603
Dyersburg, TN 38025-0603April Dada
Dept. of Community Based Services/
Dept. of Public Protection
P. O. Box 236
Brooksville, KY 41004John H. Walker
Cabinet for Health and Family Services
Office of Legal Services
275 East Main Street 5WA
Frankfort, KY 40621Lashane Harris
Cabinet for Health and Family Services
Records Management Section
275 E. Main Street
3E-G
Frankfort, KY 40621Jon Klein
Cabinet for Health and Family Services
Office of Legal Counsel
275 E. Main Street
4W-C
Frankfort, KY 40621David Fleenor
Cabinet for Health and Family Services
Office of Legal Counsel
275 E. Main Street
4W-C
Frankfort, KY 40621
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in these consolidated open records appeals is whether the Cabinet for Health and Family Services, Department for Community Based Services, violated the Open Records Act in the disposition of records requests relating to a child in the custody and care of a state agency submitted by Steven Farmer in the period from September 16, 2004, through October 12, 2004. For the reasons that follow, and in the continued absence of conclusive proof that Mr. Farmer is the father of that child, we find that the Cabinet properly relied on KRS 620.050, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 in denying these requests. We believe that 04-ORD-173 and 04-ORD-189 are controlling on the issue of access to records statutorily deemed confidential except as to certain enumerated parties, including the custodial parent or legal guardian of a child alleged to be dependent, neglected or abused (KRS 620.050(5)(b)), and the noncustodial parent of such a child when the dependence, neglect, or abuse is substantiated (KRS 620.050(5)(e)), in those cases where the paternity of the child whose records are sought has not been conclusively established.
In September 2004, Mr. Farmer requested copies of materials relating to psychological evaluations conducted at the direction of the Bracken County Juvenile Court in an action pending before that court and concerning a child who he claims to have fathered. In October 2004, Mr. Farmer requested the "gag order" issued by the Bracken County Juvenile Court relative to this matter. The Cabinet denied each of these requests on the basis of, inter alia , KRS 620.050 and this office's open records decision, 04-ORD-173. 2 In the cited decision, a copy of which is attached hereto and incorporated by reference, the Attorney General affirmed the Bracken County Board of Education's denial of Mr. Farmer's request for the child's educational records under authority of 20 USC § 1232g, the Family Educational Rights and Privacy Act (FERPA), emphasizing "the importance of conclusively establishing the identity of the requester and his legal entitlement, or lack thereof, to the records requested." At page 4 of that decision, we observed:
The voluminous record before us contains a 1991 divorce decree from Harris County, Texas, identifying Mr. Farmer as N. F.'s father, but does not contain a copy of N. F.'s birth certificate. That birth certificate, which is on file with the Bracken County Board of Education, does not identify Mr. Farmer as N. F.'s father. Because the Board risks forfeiture of federal funding not just for denying parents access to their child's education record, but also for releasing education records to persons not entitled to such records, we find that the Board's denial of Mr. Farmer's request, absent conclusive proof of his paternity, did not constitute a violation of the Open Records Act.
See also, 04-ORD-189 (affirming Ramey Estep High School's denial of Mr. Farmer's request for the child's educational records, and again emphasizing that "the record is devoid of conclusive proof of his paternity and paternity must be established as a precondition to disclosure under . . . 20 USC § 1232g").
The reasoning of the cited decisions applies with equal force to the consolidated open records appeals now before us. The Cabinet relies on KRS 620.050(5), which provides:
The report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter, except for those records provided for in subsection (6) of this section, shall not be divulged to anyone except:
(a) Persons suspected of causing dependency, neglect, or abuse;
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected, or abused;
(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;
(d) Other medical, psychological, educational, or social service agencies, child care administrators, corrections personnel, or law enforcement agencies, including the county attorney's office, the coroner, and the local child fatality response team, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect, or abuse is substantiated;
(f) Members of multidisciplinary teams as defined by KRS 620.020 and which operate pursuant to KRS 431.600;
(g) Employees or designated agents of a children's advocacy center; or
(h) Those persons so authorized by court order.
Pursuant to KRS 620.990(1), "[a]ny person intentionally violating the provisions of [Chapter 620] shall be guilty of a Class B misdemeanor." Thus, although different in kind, penalties attach for the disclosure of protected information to unauthorized persons under both 20 USC § 1232g and KRS 620.050(5). It is for this reason that the Cabinet employees properly resisted Mr. Farmer's attempts to access protected information in the absence of conclusive proof of paternity. KRS 620.050(5) operates as an absolute bar to disclosure of information "obtained by the Cabinet or its delegated representative, as a result of an investigation made" under Chapter 620. In construing this provision, the Attorney General has recognized that unless the requester can demonstrate that he falls within one of the excepted classes of individuals or entities codified at KRS 620.050(5)(a) through (h), neither the Cabinet nor its delegated representative may release the information to him. See, e.g., OAG 87-82; OAG 88-4; 92-ORD-1502; 95-ORD-53; 98-ORD-68; 99-ORD-197.
Although Mr. Farmer has continually asserted that he is the father of the child whose records are the subject of these consolidated appeals, and has flooded this office with records purportedly establishing this fact, we are left, in the final analysis, with a birth certificate that does not identify him as such, and "an apparent dispute between competing jurisdictions" into which we have twice declined to interpose ourselves. 04-ORD-173, p. 4. As before, we encourage Mr. Farmer to proceed to a final resolution of this dispute in the court before which this matter is pending. We affirm the Cabinet's denial of Mr. Farmer's requests for records relating to the child that were obtained as a result of an investigation or assessment made pursuant to Chapter 620 on the basis of KRS 620.050(5) , and the denial of his request for the court's "gag order" on the basis of the nonexistence of that record.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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 proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 The Cabinet also predicated its denial of Mr. Farmer's request for the "gag order" on the nonexistence of a written court order, explaining that the court issued an oral order that was not reduced to writing, and advising that the order therefore could not be produced. This response was consistent with the requirements of the Open Records Act. See, e.g., 02-ORD-144, p. 3 (holding that a public agency's inability to produce a record due to its nonexistence is tantamount to a denial of the request, and the agency discharges its statutory duty under the Act by issuing a written response which "so state[s] in clear and direct terms").