Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, 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 partially denying Mountain Citizen editor Gary Ball's June 21, 2012, request for records relating to the Cabinet's "role in the custodial placement of Watson Adkins, a two year old found dead in his aunt and uncle's home in Prestonsburg (Floyd County) on September 29, 2011." We find that the Cabinet violated the procedural and substantive requirements of the Act in partially denying Mr. Ball's request. To the extent our analysis in 07-ORD-145 and 09-ORD-149 is inconsistent with this decision, those open records decisions are withdrawn.
On July 2, 2012, 1 the Cabinet issued a written response in which it advised Mr. Ball that it had reviewed the case file and identified responsive records that would be available on July 6, 2012. The Cabinet indicated that the following information would be redacted:
. Social Security Numbers and reports of unsubstantiated complaints pursuant to KRS 61.878(1)(k);
. family court records pursuant to KRS 61.878(1)(l); and
. the names of children in the file other than Watson Adkins, financial information, and information relating to individuals with no connection to the placement pursuant to KRS 61.878(1)(a).
When the records were released to Mr. Ball one day later, the Cabinet stated that it had redacted:
. confidential information in compliance with KRS 61.878(1)(a);
. Social Security Numbers for all parties involved;
. Social Services information;
. unrelated records;
. unsubstantiated reports;
. name of school attended by surviving siblings;
. duplicates;
. uninvolved adults information; and
. information on minors.
The Cabinet offered no explanation for these redactions and invoked no exception to disclosure other than KRS 61.878(1)(a).
Mr. Ball subsequently appealed, objecting to the Cabinet's handling of his request and emphasizing that his intent was to obtain copies of substantiated and unsubstantiated reports of abuse and/or neglect involving Watson. He acknowledged receipt of:
. records detailing Watson's removal from his mother's home;
. relative home evaluation (Form DPP-1276);
. records containing a social worker's observation of Watson's interaction with his aunt;
. criminal background checks on the aunt and uncle with whom Watson was placed; and
. a power of attorney signed by Watson's mother.
Nevertheless, it was his position that he was entitled to records relating to substantiated and unsubstantiated reports of abuse and/or neglect and the documentation supporting the Cabinet's determination that the complaints were substantiated or unsubstantiated, including police reports, home visit reports, interviews with Watson and/or his siblings, and photos tendered by Watson's mother, Rhoda Adkins Lewis, to Cabinet employees and the court. In short, Mr. Ball's request encompassed the investigative file or files relating to Watson Adkins.
In correspondence directed to this office after Mr. Ball initiated his appeal, the Cabinet explained:
The Cabinet supplied the requested information from the case file prior to September 29, 2011, as well as information on the records not being provided. 2 The Cabinet sent records on the placement of Watson Adkins with his aunt and uncle, which satisfied Mr. Bell's first request. The other records in the case file prior to the September 29, 2011, death of Watson Adkins were two investigations in which no abuse or neglect was substantiated. KRS 620.050(12) provides for the release of records concerning a child fatality or near fatality as a result of abuse or neglect. The Cabinet is currently in the Court of Appeals on the extent of the redactions that may be made in such case files. 3
Consistent with the litigation, the Cabinet has declined to release records from a child fatality or near fatality case file while a criminal matter is pending pursuant to KRS 61.878(1)(h) lest the information being released negatively impacts the judicial process. The original release to Mr. Ball, while there is a criminal matter still pending, was technically in the case file of the mother who lost custody of the children. The decision to release this much of a case was an attempt to be responsive and yet consistent with the issues on appeal.
The Cabinet thus maintained that although unsubstantiated reports of abuse or neglect "may not fall under the KRS 620.050(12) 4 exception, and therefore . . . should not be released pursuant to KRS 61.878(1)(k)," it might elect to release the "redacted unsubstantiated reports to Mr. Ball as soon as [the Cabinet] receives the go-ahead from the prosecutor. "
One week later, the Cabinet elected to provide Mr. Ball with copies of two unsubstantiated reports concerning Watson Adkins, but indicated that "the names of the adults and children, except for Watson Adkins, [were redacted] pursuant to KRS 61.878(1)(k) because the reports were unsubstantiated. " Assuming this represents the sum total of all investigative files relating to Watson's removal from his mother's home and placement in his aunt's and uncle's home, and thus that all responsive records have been disclosed to Mr. Ball, albeit in redacted form, we nevertheless find that the information withheld exceeds the scope of permissible redactions under the Open Records Act and that the Cabinet's response to his request was deficient. We are guided by the holdings of the Franklin Circuit Court and the Court of Appeals in reaching this conclusion.
The issue of access to the records in dispute in this appeal has not been presented to the courts. 5 The records relate to the death of two year old Watson Adkins in September 2011. 6 Although the circumstances surrounding Watson's death are tragically unique, the types of records at issue here are nearly identical to those at issue in the referenced rulings. Having considered those rulings, and finding the courts' analysis wholly persuasive, we withdraw 07-ORD-145 and 09-ORD-149 and hold that "under the Kentucky Open Records Act, the public records related to the death of a child under the protection of the state foster care system are open to public investigation." Lexington H-L Services, Inc., et al. v. Cabinet for Health and Family Services , No. 09-CI-1742, p. 12 (Franklin Circuit Court, May 3, 2010). The courts' ruling is not, of course, legally binding until the cases from which they arise are fully and finally resolved. 7 We depart from 07-ORD-145 and 09-ORD-149 in recognition of the superior analysis found in the courts' rulings. In weighing the competing public and private interests under KRS 61.878(1)(a), we agree that "there is the strongest possible legitimate public interest in the information requested, concerning the state's discharge of its statutory duties to dependent and neglected children, which outweighs any privacy interests of any party or other person." Id. at 8. The Cabinet too concedes the necessity of disclosure, albeit limited disclosure.
The Cabinet continues to resist full disclosure by vaguely asserting the right to withhold "the names of individuals with no connection to the placement, " "confidential information, " "unrelated records," "uninvolved adults information," "information on minors," "juvenile/Family Court documentation," and, finally, "the names of the adults. " In some instances, the Cabinet invokes KRS 61.878(1)(a) and (h) but provides no particularized proof of the privacy interests, if any, implicated in Watson's case, or of the harm to the enforcement action arising from his death that would result from premature disclosure of the records. In other instances, the Cabinet invokes KRS 61.878(1)(k) and (l) without reference to the corresponding federal or state laws. 8 In still other instances, the Cabinet invokes no exception supporting its position.
Having also considered the courts' analysis of the scope of permissible redactions, we agree that:
a. The name of a private citizen who reports the child abuse or neglect may be redacted, unless the informant is a family member. No redactions shall be made when the informant is law enforcement personnel, school personnel, medical personnel, or social service personnel;
b. The names of minor siblings, who are mentioned only because of their sibling relationship with a victim, may be redacted; and
c. Social Security numbers and other identifying information regarding benefits programs may be redacted. 9
The courts narrowly circumscribed the scope of permissible exceptions, reasoning:
In cases involving a death or near death of a child who the state agency has been charged with protecting, full public disclosure of such information is the rule. Full disclosure is often necessary to prevent such tragedies from reoccurring. The Cabinet's proposed [redaction] protocol allows the Cabinet to keep a vast amount of this information private without balancing the public's right to know, the need to hold the Cabinet accountable, and the necessity of policy changes to prevent such tragic outcomes in the future.
Courier-Journal, et al. v. Cabinet for Health and Family Services, et al., No. 11-CI-00141 (Franklin Circuit Court, Div. 1 January 19, 2012). In adopting the courts' redaction protocol, we also adopt the analysis supporting that protocol. We find that the Cabinet improperly withheld "the names of the adults, " including "individuals with no connection to the placement, " "uninvolved adults information," "names of schools attended by surviving siblings, " family court records, and unsubstantiated reports of abuse or neglect until it "receive[d] the go-ahead from the prosecutor. " 10 We affirm the Cabinet's redaction of the names of minor siblings, Social Security numbers, and identifying information regarding benefits programs. Any other redactions in any of the records disclosed to Mr. Ball are impermissible.
With reference to procedural irregularities in the Cabinet's disposition of Mr. Ball's request, we note its failure to respond in writing within three business days, and, when it belatedly responded in writing, its failure to make "a specific and individualized showing of a recognized exception to the rule of public disclosure codified in the Open Records Act" with respect to the records, or groups of records, withheld. The Courier-Journal, Inc. et al. v. Cabinet for Health and Family Services, et al., Memorandum Opinion No. 11-CI-00141, p. 7. (Franklin Circuit Court Div. I January 19, 2012). Not until expressly asked to do so by this office, under authority of KRS 61.880(2)(c), did the Cabinet provide citation to state and federal laws upon which it relied in invoking KRS 61.878(1)(k) and (l), or identify records vaguely described in its original denial. Hence, neither Mr. Ball nor this office could ascertain what records were withheld and why. Such obfuscation is clearly impermissible under KRS 61.880 insofar as that statute imposes the burden of proof in sustaining its action on the Cabinet. 11 We therefore find that the Cabinet for Health and Family Services' partial denial of Mr. Ball's request constituted both a substantive and a procedural violation of the Open Records Act.
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:
Gary BallChristina Heavrin
Footnotes
Footnotes
1 The record reflects that the Cabinet orally responded to Mr. Ball's request on June 26. Because that response was not reduced to writing, we have no way of determining its contents.
2 Mr. Ball did not request, nor did the Cabinet provide, a copy of the internal review prepared after Watson's death.
3 The Court of Appeals resolved this issue against the Cabinet in an order issued on July 9, 2012, Cabinet for Health and Family Services, et al. v. Courier-Journal, Inc., et al. , Nos. 2012-CA-000179-MR, 2012-CA-000482-MR, and 2012-CA-000902-I, page 18 (Motion for CR 65.09 Relief filed on July 16, 2012, 2012-SC-000417). The court concluded that "the question of the Cabinet's responsibility under the Open Records Act regarding cases of fatality or near-fatality is settled. The unappealed conclusion of the May 3, 2010, judgment [ Lexington H-L Services, Inc., et al. v. Cabinet for Health and Family Services (No. 09-CI-1142 Franklin Circuit Court Div. I] represents the status quo in this case." With reference to the scope of permissible exclusions, the court determined that "the Cabinet's claimed authority to redact cannot be reconciled with its duty to disclose under the Open Records Act." Id. at 19.
4 KRS 620.050(12) is an enactment of the General Assembly. It is not a federal law or regulation prohibiting disclosure of public records per KRS 61.878(1)(k).
5 Under the rule that KRS 61.882 "vests the circuit courts with authority overriding that of the Attorney General in determining open records questions," this office will not "attempt to substantively determine an open records question when the same question is before a circuit court." OAG 78-88; OAG 88-78; 93-ORD-81; 97-ORD-73; 09-ORD-211. In each of these instances, the Attorney General declined jurisdiction when the appellant simultaneously filed an appeal with this office and an original action in circuit court involving the same alleged violation of the Open Records Act and requesting the same relief in both forums. We recognized that the courts' authority "to substantively determine the open records question clearly supersedes that of the Attorney General." 97-ORD 073, p. 3. Because the violation of the Open Records Act that Mr. Ball alleges is not under review by the courts, these open records decisions are inapplicable.
6 The requests at issue in 2012-CA-000179-MR, 2012-CA-000482-MR, and 2012-CA-000902-I encompassed child fatality reviews from July 1, 2009, to December 17, 2010.
7 See note 3, above.
8 The Cabinet identifies no clearly defined record or group of records for which specific federal or state protection exists.
9 In the case of a near fatality, the courts recognized that the name of the child victim could be redacted. In the case of a fatality or near fatality, the courts also recognized that the names of perpetrators who are minors could be redacted. Given the facts of Watson's death, neither of these redactions is implicated.
10 While the courts have not had occasion to fully address this issue, KRS 61.878(1)(h), like KRS 61.878(1)(a), requires particularized proof to support a claim of exclusion. The Cabinet denied Mr. Ball's request, as it related to unsubstantiated reports of abuse and neglect, without attempting to provide proof of harm from disclosure. Indeed, the Cabinet did not cite KRS 61.878(1)(h) in its original response to Mr. Ball's request, but invoked it for the first time in responding to this office's notification of receipt of his appeal. When asked, the prosecutor offered no objection to disclosure.
11 KRS 61.880(2)(c) thus 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.)