Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that, although its original response was deficient, the Cabinet for Health and Family Services properly relied on KRS 620.050(11), incorporated into the Open Records Act by KRS 61.878(1)(l), in masking "identifying information concerning the individual initiating the report" of suspected abuse, neglect, dependency, or exploitation, to which Tammie Nava requested access, before disclosing the report to her. Because Ms. Nava is the "[p]erson[] suspected of causing dependency, neglect, or abuse," she is entitled to a copy of the report pursuant to KRS 620.050(5)(a). Her right of access is not, however, unrestricted. KRS 620.050(11) 1 prohibits disclosure of information identifying the individual who initiated the report, and Ms. Nava is not entitled to this information.
In its original response, the Cabinet denied Ms. Nava's May 2, 2011, request on the basis of KRS 61.878(1)(h). The Cabinet did not explain how that statutory exception applied to the requested report. 2 Several months later, Ms. Nava initiated this appeal, asserting her right to obtain a copy of the report under KRS 620.050(5)(a). In supplemental correspondence directed to this office, the Cabinet explained that, at the time of Ms. Nava's request, both criminal and administrative adjudications were pending and that disclosure of the report would have "harm[ed] the agency by revealing the identity of informants not otherwise known." Because these matters have been concluded, the Cabinet agreed to provide Ms. Nava with a copy of the report after masking "[a]ny information that could reasonably be expected to identify the reporter of suspected child abuse, neglect, or dependency . . . pursuant to KRS 620.050(11) and 61.878(1)(a)" and "information that is not responsive to Ms. Nava's request." The Cabinet attached a redacted copy of the requested report and, at our request, provided this office with an unredacted copy of the report for in camera comparison pursuant to KRS 61.880(2)(c). 3 Having reviewed both the redacted and unredacted copies of the report, we find that the Cabinet properly masked information identifying the individual who initiated the report. Because Ms. Nava requested the "initiating reports Nov. 2009," there is no information on the report "that is not responsive to [her] request." Any redactions exclusively premised on this legal theory are not supportable.
KRS 620.050(5)(a), which is incorporated into the Open Records Act by KRS 61.878(1)(l), 4 provides:
(5) 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 chapter, except for those records provided for in subsection (6) of this section, shall not be divulged to anyone except:
"Under the express terms of this statute," the Attorney General has recognized, "the Cabinet must withhold all information acquired as a result of an investigation conducted pursuant to [this chapter] unless the requester can demonstrate that he [or she] falls within one of the excepted categories codified at KRS [620.050(5)(a) through (h)]." 99-ORD-197, p. 4, cited in 03-ORD-070 and 08-ORD-161. Although Ms. Nava falls within the statutorily recognized exception to the general rule of confidentiality found at KRS 620.050(a), and is therefore entitled to a copy of the report of suspected abuse, neglect, dependency, or exploitation, her entitlement is circumscribed by the prohibition on disclosure of "[i]dentifying information concerning the individual initiating the report" found at KRS 620.050(11). That statute is not limited to information that directly identifies the individual who initiated the report. To promote the purpose for which it was enacted, the statute extends, perforce, to information that indirectly identifies the individual who initiated the request. This would include information known only to the individual initiating the report which, if disclosed, could be used to identify that individual.
The Cabinet redacted information that directly and indirectly identified the individual who initiated the disputed report. Such information is shielded from disclosure by KRS 620.050(11). The Cabinet properly discharged its duties under KRS 620.050(5)(a) and KRS 620.050(11), as well as KRS 61.878(4) 5 and KRS 61.880(1), by providing Ms. Nava with a redacted copy of the "Confidential Suspected Abuse/Neglect, Dependency, or Exploitation Reporting Form" to which she requested access. Any redactions that were made solely because the redacted information "was not responsive to her request" were, however, improper insofar as Ms. Nava requested the November 2009 report and the report, as a whole, was responsive to 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 proceeding.
Distributed to:
Tammie NavaGina OneyCatherine York
Footnotes
Footnotes
1 KRS 620.050(11) thus provides:
Identifying information concerning the individual initiating the report under KRS 620.050 shall not be disclosed except:
(a) To law enforcement officials that have a legitimate interest in the case;
(b) To the agency designated by the cabinet to investigate or assess the report;
(c) To members of multidisciplinary teams as defined by KRS 620.020 that operated under KRS 431.600; or
(d) Under a court order, after the court has conducted an in camera review of the record of the state related to the report and has found reasonable cause to believe that the reporter knowingly made a false report.
2 Because the Cabinet released a copy of the report to Ms. Nava after she filed this appeal, we do not address the propriety of its reliance on KRS 61.878(1)(h) to deny her request in May 2011. We leave this question for another day but remind the Cabinet that mere invocation of the exception, without an accompanying explanation, constitutes a procedural and a substantive violation of the Open Records Act. KRS 61.880(1); Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996).
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
4 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
5 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.