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 Kentucky Open Records Act in the disposition of Lexington Herald-Leader reporter Bill Estep's June 3, 2009, requests for "[t]he file maintained by the Cabinet, or any part of the Cabinet, on Alisha Branham, a resident of Wayne County[, and] on Kayden S. Branham, who may also be identified as Kayden S. Daniels, a resident of Wayne County who died May 30, 2009." For the reasons that follow, we find that the Cabinet's actions did not violate the Act.
Anne E. Burnham, Assistant Counsel, responded on behalf of the Cabinet on June 5, 2009, stating in part:
Your request for access to these records is denied. The basis for the denial is that, there were no authorizations or court orders accompanying your request. Any individuals who would be directly or indirectly identified in the records you requested have a right to privacy under Kentucky and federal law. In accordance with KRS 61.878(1)(a), KRS 194A.060, KRS 620.050 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations promulgated there under [sic] at 45 C.F.R. Parts 160 and 164, the Cabinet is required by law to ensure that such information is not released without proper authorization or court order.
This appeal was initiated on behalf of the Herald-Leader by attorney Kif H. Skidmore on June 29, 2009. Ms. Skidmore essentially argues: (1) that any personal privacy interest under KRS 61.878(1)(a) terminates at the time of death; (2) that disclosure of records relating to a child fatality is permitted under KRS 620.050(12)(a) and 42 U.S.C. § 5106a (b)(2)(A)(x) and therefore the Open Records Act requires such disclosure; and (3) that everything other than "protected health information" is unaffected by HIPAA and therefore must be disclosed. In the Cabinet's response to this appeal, dated July 15, 2009, Ms. Burnham reiterates and elaborates on the Cabinet's original grounds for denial.
At the outset, we note that whether the personal privacy interests recognized by KRS 61.878(1)(a) survive the decedent depends upon the circumstances. 05-ORD-075. In this case, however, we need not conduct a privacy analysis because the Kentucky statutes cited by Ms. Burnham 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." KRS 194A.060 is a general confidentiality statute requiring the Cabinet Secretary to protect the confidential nature of records "that directly or indirectly identify a client or patient," while KRS 620.050 is more specific in its subject matter.
Complaints of child abuse made to the Cabinet against individuals are investigated pursuant to KRS Chapter 620. KRS 620.050(5) 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 may 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. Estep falls within any of these categories.
Ms. Skidmore argues that KRS 620.050(12)(a), which allows the Cabinet to make public disclosures of information in the case of a child fatality, entitles Mr. Estep to view the records. As we concluded in 07-ORD-145 (copy attached), however, that provision is permissive rather than mandatory with regard to disclosure, and the Cabinet has reasonable discretion in such matters. Nothing in KRS 620.050(12)(a) compels disclosure; the provision merely allows mitigation of the underlying confidentiality of the Cabinet's records under specific circumstances. Therefore, pursuant to KRS 61.878(1)(l), Mr. Estep was not entitled to inspect records containing information of this nature.
We accordingly find no error in the Cabinet's denial of Mr. Estep's request. Because we find the Kentucky statutes dispositive, we do not address the arguments concerning HIPAA and its associated federal regulations.
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.