Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services, Department for Community Based Services, Division of Protection and Permanency violated the Kentucky Open Records Act in denying Daniel Scott Bourne's April 29, 2010 request for "cases of suspected abuse" of his son. In a timely written response, Gina Oney, Records Administrative Supervisor, advised Mr. Bourne that he was "not entitled to the requested information" as the subject investigation "is not yet complete (KRS 620.050(7))." Ms. Oney further explained to Mr. Bourne that he could "submit a new request once the investigation has been finished." By letter dated May 3, 2010, Mr. Bourne initiated this appeal. In the absence of any evidence to refute the Cabinet for Health and Family Services' assertion that Mr. Bourne remains under investigation, this office must conclude that his request was properly denied on the basis of KRS 620.050(7), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 1
Upon receiving notification of Mr. Bourne's appeal from this office, Assistant Counsel Jon R. Klein responded on behalf of the CHFS. Having quoted the language of KRS 620.050(7), Mr. Klein advised that according to "Carrie Hall, an administrative specialist who works in the Cabinet's Records Management Section, at least one case involving Mr. Bourne is still listed as being under investigation." According to Mr. Klein, the agency's denial was therefore authorized under KRS 61.878(1)(l). Based upon the unambiguous language of KRS 620.050(7), and the unrefuted evidence presented, this office agrees.
This office recently had occasion to address the application of KRS 620.050(7) on facts which mirrored those presented here. In 10-ORD-018, the decision which resulted from that appeal, this office reasoned as follows:
Among those records excluded from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In other words, confidentiality provisions found in the Kentucky Revised Statutes are incorporated into the Open Records Act by operation of KRS 61.878(1)(l) . Resolution of this appeal turns on the mandatory language of KRS 620.050(7), pursuant to which:
(Emphasis added). When viewed in conjunction, KRS 61.878(1)(l) and KRS 620.050(7) operate to ensure that any parent or guardian shall be permitted to access records concerning his or her child unless the parent or guardian is currently under investigation by the CHFS or a law enforcement agency. Both initially and in responding to Mr. McPherson's [and Mr. Bourne's] appeal, the CHFS has confirmed that he is the subject of two investigations [here, "at least one"] that are currently open and pending.
Id., p. 3.
Here, as in 10-ORD-018, the Attorney General finds that "[i]n the absence of any objective proof to refute the agency's position that Mr. McPherson [Mr. Bourne] remained under investigation at the time of his request (and his appeal for that matter), this office must affirm its denial in accordance with KRS 620.050(7)[.]" The intent of the italicized statutory language quoted above was "clearly to ensure that records concerning a child are not disclosed to a parent(s) being investigated for abuse of that child as evidenced by the literal language of this provision." 10-ORD-018, p. 3. Because "at least one case involving Mr. Bourne remains listed as being under investigation," KRS 620.050(7) expressly prohibits the CHFS from providing him with any of the records in dispute and its denial of his request is therefore affirmed.
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.
Daniel Scott BourneGina OneyJon R. Klein
Footnotes
Footnotes
1 KRS 61.878(1)(l) removes from application of the Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."