Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Department for Community Based Services, Cabinet for Health and Family Services, relative to the open records request of John Wilson violated the Open Records Act. For the reasons that follow, we conclude that the Cabinet's response denying Mr. Wilson's request was proper and did not constitute a violation of the Act.
By letter dated October 2, 2008, Mr. Wilson submitted an open records request to the Department for Community Based Services, Cabinet for Health and Family Services (Cabinet) , for a copy of all investigations and all complaints against Bluegrass/Communities for the time period from November 1, 2006, to the present date.
In a letter dated October 16, 2008, Jon R. Klein, Assistant Counsel for the Cabinet, denied Mr. Wilson's request, advising in relevant part:
Unfortunately, I must inform you that your request is hereby denied. Kentucky Revised Statutes (KRS) section 209.140 governs the release of abuse and neglect investigation information gathered by the Department for Community Based Services. That statute does not allow release of any information except to certain identified groups of people. You have not alleged that you are a member of any of the statutorily recognized groups. As a result, your request must be denied in its entirety. KRS 61.878(1)(l). A copy of KRS 209.140 and a decision from the Attorney General's Office upholding the Cabinet's position on this issue, 04-ORD-047, are enclosed for your convenience.
In his letter of appeal, Mr. Wilson cites another of his open records appeals, involving the Office of the Attorney General, Medicaid Fraud and Abuse Control Division, 08-ORD-021, and asks whether he may have been entitled to some of the requested records that he was denied access to in the instant appeal.
We are asked to determine whether the Cabinet's denial of Mr. Wilson's request violated the Open Records Act. For the reasons that follow, and based on KRS 209.140, in tandem with KRS 61.878(1)(l), we affirm the Cabinet's denial of his request.
KRS 61.878(1)(l) provides for the nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
The specific statute or enactment of the General Assembly relied upon by the Cabinet in its letter of denial was KRS 209.140, which provides:
All information obtained by the department 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:
(1) Persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless ordered by the court;
(2) Persons within the department or cabinet with a legitimate interest or responsibility related to the case;
(3) Other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
(4) Cases where a court orders release of such information; and
(5) The alleged abused or neglected or exploited person.
Under the express terms of this statute, the Cabinet must withhold all information acquired as a result of an investigation conducted pursuant to KRS 209.140 unless the requester can demonstrate that he or she falls within one of the excepted categories codified at KRS 209.140 (1) through (5). 04-ORD-047. Mr. Wilson does not demonstrate that he falls within an excepted category set forth in KRS 209.140(1) - (5). Accordingly, we affirm the Cabinet's denial of this request under authority of KRS 209.140, in tandem with KRS 61.878(1)(l), and 04-ORD-047. Moreover, we find no language in 08-ORD-021 which would override our reliance upon 04-ORD-047 as controlling authority in the instant appeal.
Finally, the record on appeal indicates that Mr. Wilson's request letter is dated October 2, 2007, and the Cabinet's response letter is dated October 16, 2007. KRS 61.880(1), containing procedural guidelines for a public agency's response to an open records request, requires the agency to "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 . . . notify in writing the person making the request, within the three (3) day period, of its decision." From the facts before us, we are unable to determine with precision the date that the Cabinet received Mr. Wilson's request. To the extent the response was issued outside the three business day response time requirement of KRS 61.880(1), it would constitute a procedural violation of the Act.
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 proceedings.