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 denying Sentinel-News Editor Steven L. Doyle's June 26, 2013, request for access to "all records and transcripts concerning child custody issues involving Jacklene Lane," a fifteen-year-old girl who was found dead in a creek in Shelby County on June 17, 2013. The Cabinet denied Mr. Doyle's request by letter dated June 28, 2013, explaining that it had received no report of abuse or neglect committed by a parent, guardian, or person exercising custodial control or supervision over Ms. Lane and that, "therefore, records of Ms. Lane, if any, in the possession of the Cabinet would be confidential pursuant to KRS 620.050(5)." On August 16, Mr. Doyle initiated this appeal. We find that the Cabinet's reliance on KRS 620.050(5) was misplaced.
KRS 620.050(5) provides:
The report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet for 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?
The statute then identifies eight excepted categories of persons or entities entitled to the report and information. Mr. Doyle did not request a report of suspected child abuse, neglect, or dependency relating to Jacklene Lane or information obtained in the investigation of such a report, but instead requested all records "pertinent to any custody matters pertaining to Jacklene Lane." KRS 620.050(5) has no application to the requested records, and the Cabinet, having failed to advance any other argument supporting its position, violated the Open Records Act in withholding those records.
In correspondence directed to this office, the Cabinet expends considerable effort in explaining why KRS 620.050(12) does not compel disclosure of records to Mr. Doyle but does not refute his assertion that "the Cabinet at some point removed Miss Lane from the home of her mother, Pauline Lane Likes, and designated her brother, Brian Lane, of Bagdad, as her custodial guardian. " Clearly, records responsive to Mr. Doyle's request for "all documents, court transcripts and correspondence pertinent to any custody matters pertaining to Jacklene Lane" exist. Such records do not qualify for exclusion under KRS 620.050(5) insofar as they do not constitute a "report of suspected child abuse, neglect, or dependency . . . [or] information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter." The Cabinet itself declares that it "has not received a report of abuse or neglect committed by a parent, guardian, or person exercising custodial control or supervision over Ms. Lane." KRS 620.050(5) provides no support for its position.
KRS 620.050(12) imposes a duty on the Cabinet to publicly disclose information "in a case where child abuse or neglect has resulted in a child fatality or near fatality. " At the time of Mr. Doyle's request, the Cabinet subsequently advised, the Department for Community Based Services "was not investigating the death of Ms. Lane as a fatality that was the result of abuse or neglect by a custodial party." After Mr. Doyle initiated this appeal, DCBS received information from the police investigation that prompted it to launch an investigation to determine if Ms. Lane's death was a result of neglect by a custodial party. As of August 26, 2013, that investigation was "ongoing." When that investigation is concluded, and a determination is made, information relating to it will be available to Mr. Doyle, should he request it, if DCBS concludes that Ms. Lane's death resulted from neglect by a custodial party. Should the Cabinet conclude otherwise, and deny any subsequent request for information obtained in its investigation, the requester may appeal that denial to the Attorney General or the courts for a review of the propriety of that denial. That issue is not presented in the appeal before us.
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:Steven L. DoyleChristina Heavrin