Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Hope's Place, 1 a child advocacy center located in Ashland, Kentucky, violated the Open Records Act in denying Wayne Eplion access to "all investigative materials in the possession of or generated through the counseling function . . ." and relating to five individuals identified by name, date of birth, and in some instances, social security number, 2 on the basis of KRS 620.050(6). For the reasons that follow, we affirm Hope's Place's denial of Mr. Eplion's request.
In supplemental correspondence directed to this office following commencement of Mr. Eplion's appeal, Clinic Coordinator Linda Shelton advised:
Our records were denied to Mr. Eplion because they are exempt under KRS 61.878(1), (h), (k), & (l). All records in our possession on the named individuals were given to the Boyd County Commonwealth Attorney who then made copies available to Mr. Eplion's attorney during the investigation of his case. 3 We have no other records. However if we did have other records, we would deny their release without a court order according to KRS 620.050(6) and (7). Our records are highly confidential and sensitive in nature and it would never be in the best interest of our children to disclose such records to a convicted sex offender.
Please note that none of our records include counseling information. Pathways, Inc. did all counseling for these children. Our records contain only forensic evidence of the crime.
Cabinet for Health and Family Services Assistant Counsel Jon R. Klein echoed Ms. Shelton's position in a letter to this office dated February 14, 2007. Mr. Klein observed:
[T]he statutory provisions cited by Ms. Shelton are applicable. Mr. Eplion requested records from a child advocacy center, and the provisions recited are the confidentiality provisions that apply to such centers. The cited provisions describe exactly who is entitled to disclosure of the records Mr. Eplion requested. A little deductive reasoning should have led Mr. Eplion to the conclusion that he was denied the records he requested on the basis of KRS 620.050(6) and (7) through KRS 61.878(1)(l) at the very least.
I note that the appeal stated that, "MS. SHELTON FAILS TO PROVIDE ANY REASON OR EXPLANATION WHATOSEVER IN JUSTIFICATION OF HER DENIAL AS CONCERNS TWO (2) OF THE FIVE (5) INDIVIDUALS SPECIFIED IN MY REQUEST." The undersigned can only assume that Mr. Eplion is referring to the two adults that are the subject of his request.
The statutory provisions recited by Ms. Shelton clearly state that "Files, reports, notes photographs, records, electronic and other communications, and working papers used or developed by a children's advocacy center in providing services under [Chapter 620] are confidential and shall not be disclosed" except to certain classes of individuals, none of which has Mr. Eplion even alleged he is a member. Finally, as a child advocacy center, Hope's Place does not maintain records on adults. Accordingly, Hope's Place cannot provide records that are not in their possession. See 02-ORD-144, p. 3.
We concur, and applaud the thoroughness and alacrity with which Hope's Place and the Cabinet disposed of Mr. Eplion's request.
KRS 61.878(1)(l) excludes from the mandatory disclosure provisions of the Open Records Act, "public records or information the disclosure of which is prohibited or restricted otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 620.050(6) to insure the confidentiality of:
(a) Files, reports, notes, photographs, records, electronic and other communications, and working papers used or developed by a children's advocacy center in providing services under this chapter . . . . [Such records] shall not be disclosed except to the following persons:
Under the express terms of this statute, Hope's Place must withhold all records which it "use[s] or develop[s] . . . in providing services" except under certain circumstances or to certain specifically enumerated classes of persons. Unless the requester can demonstrate that he or she falls within one of the excepted classes, he or she is foreclosed from accessing those records. Mr. Eplion has not demonstrated that he qualifies under one of these excepted classes, and is therefore not entitled to receive copies of the requested records. Accord, 96-ORD-43; 98-ORD-145; 03-ORD-070. 4 We find no error in the decision of Hope's Place to deny Mr. Eplion's request.
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.
Wayne Eplion, # 161020 GB/H218Little Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Linda SheltonClinic CoordinatorHope's Place1100 Greenup AvenueAshland, KY 41101
Jon R. KleinAssistant CounselOffice of Legal ServicesCabinet for Health and Family Services275 East Main Street, 5W-BFrankfort, KY
Carlton ShierAssistant General CounselOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 5W-BFrankfort, KY 40601
Footnotes
Footnotes
1 Neither Hope's Place, nor the Cabinet for Health and Family Services, disputes the advocacy center's status as a public agency under the Open Records Act, and KRS 61.870(1) in particular.
2 This information is omitted in deference to the privacy interests of the individuals.
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3 Given the language that appears at KRS 171.680, requiring "[t]he head of each state or local agency [to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency," and KRS 61.8715, recognizing an "essential relationship" between records management and records access, this action may be problematic. Because Hope's Place is charged with exercising continuous control over, and custody of, public records, the apparent decision to relinquish custody of its records, without retaining a copy, was ill-advised.
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4 On appeal, Hope's Place provides additional information relative to the current repository, and content, of records responsive to Mr. Eplion's request. This information does not alter our analysis or necessitate a different conclusion. It is our decision that Hope's Place did not violate the Open Records Act in refusing to release records to Mr. Eplion.
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