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 Delmar D. White's March 8, 2010, request for records related to James Lewis White. For the reasons that follow, we find that the Cabinet's actions did not violate the Act.
Delmar D. White was born in Todd County in 1929, the youngest of four children, the elder three of whom were placed with an orphanage after their mother was widowed in 1930. Some years after remarrying, his mother was able to regain custody of her first two children in 1936, but not the third child, James Lewis White, who was eventually adopted in 1944. James Lewis White was never seen again by his birth family after he entered the orphanage.
On March 8, 2010, Delmar White submitted an open records request form to the Cabinet's Division of Protection and Permanency, requesting records on James Lewis White, born in February 1927 to Gertrude White. Although he did not specify particular documents he wished to inspect, he indicated that the "County Where Incident Occurred" was Christian County and the "Date of Incident" was "1930 or 1931," which would correspond to his brother's placement with the orphanage. Open Records Specialist Carrie Hall replied to him on that same date:
While the Records Management Section is required to respond to all records requests, we are also subject to state and federal laws that govern the privacy of records. The records you requested have been ordered from the custodian and will be sent to this office for a final review to determine what, if anything, may be released to you. This review will be performed as soon as possible upon receipt of the records in this office. If your request requires additional documentation, such as a birth certificate or a court order, you will be notified.
?
State and federal law requires this office to protect the privacy and confidentiality of any individuals who may be mentioned in our records. Personal information about other people may be redacted from the documents that you receive.
Pursuant to 922 KAR 1:510, Section 3(1), Carrie Hall enclosed an "Authorization for Disclosure of Protected Health Information" form. 1 In the blank on the form labeled "The purpose for disclosure is," Mr. White filled in: "to locate my brother."
The Cabinet received the completed form on March 15, 2010. That same day, Records Administrative Supervisor Gina Oney sent Mr. White the final disposition, the pertinent part of which stated simply: "It has been determined that you are not entitled to the requested information as defined by KRS 194A.060." This office received Mr. White's appeal on April 5, 2010.
On April 12, 2010, Assistant Counsel Jon R. Klein responded to this appeal, citing "KRS 194A.060, which restricts the release of information about former patients and clients of the Cabinet to the patient, the patient's guardian, [or] as otherwise permitted by state or federal law. " He further cites KRS 61.878(1)(l), and then provides the following information in regard to adoption records:
Under Kentucky's adoption laws, once an adoption has been granted all information about the case is sealed and may only be released by a court order from the court that issued the judgment of adoption. KRS 199.570(1)(c); KRS 61.878(1)(l). In this case, the Petition was filed in October 1943, and the Order granting the adoption was issued by the Barren County Court (Glasgow, Kentucky), March Term, on April 1, 1944, Carroll M. Redford, County Judge.
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(1) provides that the Cabinet Secretary is "to protect the confidential nature of all records and reports of the cabinet that directly or indirectly identify a client or patient or former client or patient of the cabinet, " and that such records shall only be disclosed if the client or guardian gives consent or if disclosure is "permitted under state or federal law. " KRS 199.570(1)(c) provides more specifically:
No person having charge of any adoption records shall disclose the names of any parties appearing in such records or furnish any copy of any such records to any person or other entity that does not meet the requirements of KRS 199.572, except upon order of the court which entered the judgment of adoption.
(Emphasis added.) 2 KRS 199.572, in turn, mentions no "person or other entity" except for an adult adoptee, the biological parents, and a contractor engaged by the Cabinet to locate the biological parents.
Faced with these statutes, we can only conclude that Mr. White must obtain a court order to secure a copy of his brother's adoption records from the Cabinet. See 93-ORD-84 (the Cabinet "is absolutely foreclosed from releasing adoption records to an adoptive parent, a relative, or any other person, in the absence of a court order"). Although the law might be perceived as operating unreasonably in this particular case, the Attorney General is bound to decide appeals in accordance with the enactments of the General Assembly. There is no exception made in the statutes for a situation such as Mr. White's. "Whatever injustice the law may work in such instances, we are constrained by the express language of the statute." 94-ORD-123, p. 2 (construing the predecessor to KRS 194A.060).
Apart from obtaining a court order, we are aware of only one other statutory means for Mr. White to locate his brother through the Cabinet. 3 KRS 199.575(1) provides:
In all cases, an adopted person eighteen (18) years of age or older or a preadoptive sibling eighteen (18) years of age or older of an adopted person may file information concerning himself, his present location, and his known antecedents with the Cabinet for Health and Family Services, stating his interest in being reunited with his preadoptive siblings and authorizing the cabinet to release such information to his preadoptive siblings who may make similar inquiry.
Once that information is on file, subsection (2) of KRS 199.575 requires the Cabinet to release the information to the other sibling if the other sibling makes a similar inquiry. That process, obviously, would be effective for Mr. White only if his brother were also looking for him.
In summary, KRS 194A.060(1) and KRS 199.570(1)(c) restrict the Cabinet's disclosure of adoption records and are incorporated into the Open Records Act by KRS 61.878(1)(l). For that reason, we find no error in the Cabinet's disposition of Mr. White'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.
Delmar D. WhiteJon R. Klein, Esq.
Footnotes
Footnotes
1 Presumably this form was required from Mr. White because the scope of his request was broad enough to include health information.
2 We note that in this instance "the court which entered the judgment of adoption" was the Barren County Court. Since Kentucky's unified judicial system was implemented, the county courts no longer operate. Given that the circuit courts now have jurisdiction over adoptions, we believe the Barren Circuit Court would be the forum in which Mr. White could seek a remedy.
3 Archived court records relating to the adoption may also exist in the possession of the Kentucky Department for Libraries and Archives. Mr. White can contact the Department for Libraries and Archives at 300 Coffee Tree Road, Frankfort, Kentucky 40601, telephone (800) 928-7000.