Request By:
Donald Ray Hall
Jon R. Klein, Esq.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in the disposition of Donald Ray Hall's November 13, 2008, request for records resulting from a complaint made to the Cabinet against Melissa Lynn Hall. For the reasons that follow, we find that the Cabinet did not substantively violate the Act.
In his November 13 request, Mr. Hall asked for "a copy of any records generated on or between May 27th - June 18th, 2000, where as [sic] a complaint was made against Melissa Lynn Hall, D.O.B. [removed]- Social Security Number [removed]. ? This complaint was allegedly made by a phone call by Mrs. Hall's husband, (I am Mrs. Hall's EX- Husband, Donald Ray Hall)." Having received no response, Mr. Hall initiated an open records appeal on December 9, 2008, in which he elaborated upon his reason for seeking the records: "Commonwealth's Attorney for the 47th District Edison G. Banks II made claims in my criminal trial of charges against Mrs. Hall that I call in a complaint to Social Serveses [ sic ] ? I ask for verification if infact [ sic ] such a call was ever made."
The Cabinet's response, submitted by Assistant Counsel Jon R. Klein, asserts that the Cabinet's records custodian never received Mr. Hall's request and further states, in part, as follows:
The requested records likely contain medical information of a personal nature regarding clients of the Cabinet. Release of these records absent a legally effective authorization or court order would constitute an unreasonable invasion of personal privacy. KRS 61.878(1)(a). Likewise, the requested records are made confidential by state and federal law and are exempt from disclosure on that ground. KRS 194A.060; 45 CFR 164.502(a); KRS 61.878(1)(k) and (l). In addition, since Mr. Hall appears to be requesting records from either adult or child protective services, he must comply with either KRS 209.140 or 620.050(5), and 922 KAR 1:510. KRS 61.878(1)(l).
Whether any employee or agent of the Cabinet ever received Mr. Hall's request is a factual issue which cannot be conclusively resolved in the context of this appeal. Substantively, however, we believe the Kentucky statutes cited by Mr. Klein are dispositive of this matter.
KRS 61.878(1)(l) exempts from public disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Complaints made to the Cabinet against individuals are investigated pursuant to either KRS Chapter 620 (child abuse) or Chapter 209 (adult abuse).
KRS 620.050 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 section, shall not be divulged to anyone except:
It is well established that the Cabinet can withhold records acquired as a result of an investigation conducted pursuant to KRS Chapter 620 unless the requester can demonstrate that he falls within the excepted categories in KRS 620.050(5)(a)-(h). ( See 07-ORD-123 and decisions cited therein.) The record on appeal does not demonstrate that Mr. Hall falls within any of these categories.
KRS 209.140 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 Chapter 209 unless the requester can demonstrate that he falls within one of the excepted categories enumerated in subsections (1) through (5). 08-ORD-051; 04-ORD-047. The record on appeal does not demonstrate that Mr. Hall falls within an excepted category under KRS 209.140(1)-(5). Therefore, pursuant to KRS 61.878(1)(l), he is not entitled to inspect records containing information of this nature. We therefore find no error in the Cabinet's disposition of Mr. Hall's request, including the alleged constructive denial of that 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 proceedings.