23-ORD-129
June 12, 2023
In re: Morgan Adams/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (the “Cabinet”)
violated the Open Records Act (“the Act”) when it denied a request
without adequately explaining how the exception on which it relied
applied to the records it withheld. However, because the issues
presented in this appeal are currently before the McCracken County
Circuit Court, Family Division, this Office declines to render a decision
on the merits of the appeal.
Open Records Decision
On April 13, 2023, Morgan Adams (“Appellant”) submitted a request to the
Cabinet for all records pertaining to her and her children, including various
documents she specifically describes. On April 26, 2023, the Cabinet denied the
Appellant’s request because she “is not entitled to the records based on
KRS 209.140.”1 This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). If the agency chooses to deny the request, it “shall include a statement
of the specific exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” Id. In an open
1
Under the Act, only a “resident of the Commonwealth” has the right to inspect public records.
KRS 61.872. Here, the Appellant lists a Tennessee address and it is unclear if she is a “resident of the
Commonwealth” as defined by KRS 61.870(10). However, the Cabinet does not contest the Appellant’s
residency.records appeal, “[t]he burden of proof in sustaining the action shall rest with the
agency.” KRS 61.880(2)(c). Although KRS 61.880(1) requires the explanation in
support of denial to be “brief,” the response cannot be “limited and perfunctory.”
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). In Edmondson, the agency’s
response to a request stated only that “the information you seek is exempt under
KRS 61.878(1)(a)(k)(l) [sic].” Id. The agency failed to explain how any of the three
exemptions applied to the records it withheld, and for that reason, the court held it
had violated KRS 61.880(1). Id.
KRS 209.140 makes confidential “[a]ll information obtained by the department
staff or its delegated representative, as a result of an investigation made” involving
adult abuse under KRS Chapter 209. However, under KRS 209.140(1), “[p]ersons
suspected of abuse or neglect or exploitation” may have access to the information,
“provided that in such cases names of informants may be withheld, unless ordered by
the court.” KRS 209.140 is incorporated into the Act under KRS 61.878(1)(l), which
exempts from inspection “[p]ublic records or information the disclosure of which is
prohibited or restricted or otherwise made confidential by enactment of the General
Assembly.”
Here, the Cabinet’s written response denying the Appellant’s request merely
stated she “is not entitled to the records based on KRS 209.140.” The Cabinet’s limited
response did not explain how KRS 209.140 applies to the records it withheld. Without
any further explanation from the Cabinet, it is unclear how KRS 209.140 would apply
given the fact that the records relate to the Appellant and her children, not records
pertaining to alleged abuse of adults. Therefore, the Cabinet violated the Act when it
denied the Appellant’s request for records without adequately explaining how the
exception on which it relied applied to the records it withheld. KRS 61.880(1).2
On appeal, the Cabinet states it “erroneously relied on KRS 209.140 rather
than KRS 620.050” as the exception authorizing it to withhold the records.3 The
Cabinet further states that the McCracken County Circuit Court, Family Division
2
It is not clear from this record when the Cabinet received the Appellant’s request, but its response
is dated 13 days from the date of the request. Under the Act, an agency must respond within five
business days of receiving a request to inspect records. KRS 61.880(1). However, the Appellant did not
challenge the timeliness of the Cabinet’s response.
3
Although the Cabinet does not specify on which part of KRS 620.050 it relies, KRS 620.050(5)
exempts from inspection information similar to that exempted by KRS 209.140, but rather than adult
abuse it applies to an investigation of child abuse. Specifically, KRS 620.050(5) permits disclosure of
information in several scenarios. For example, KRS 620(5)(a) permits the person suspected of
committing child abuse to inspect the report of abuse made against her. Moreover, KRS 620.050(5)(i)
permits inspection of such reports by “[t]hose persons so authorized by court order.”“already addressed [the Appellant’s] request for records” and, as part of that dispute,
the Cabinet has “provided the records to her attorney.” Finally, the Cabinet argues it
cannot provide the records directly to the Appellant because that “would give her
unrestricted access to the records and directly contravene the Court’s Order.” As
proof, the Cabinet provides a copy of the order, which states in relevant part:
There are warranted concerns about [the Appellant] having unrestricted
access to these records, as they are confidential and she has repeatedly
violated the Court’s orders and the Cabinet’s attempts at securing
confidentiality. The Court accommodates her desire/right to review
these records and the Court’s obligation to protect the children’s
confidentiality. [The Appellant] shall be allowed to review the records in
the Courtroom, which will be recorded and monitored, on April 26, 2023
from 8:30 a.m. until 4:30 p.m. She shall not be allowed to access any
recording devices, including her cellphone, while reviewing the records
(emphasis added).
The Office has previously declined to render a decision on the merits where the issues
presented on appeal are also currently before a court of competent jurisdiction. See,
e.g., 17-ORD-096. Here, it is clear the question of whether the Appellant may inspect
these records has been presented to a court of competent jurisdiction, and the court
has held that her access to such records must be restricted. Indeed, the court
expressly prohibited the Appellant from using recording devices while she inspected
the records, clearly indicating she may not possess copies of them. The court’s stated
basis for its ruling is, in part, the Appellant’s repeated violations of its previous
orders. This Office will not assist her in attempting to again violate the court’s orders.
Accordingly, because the Appellant’s right to inspect these records has already been
decided by a court of competent jurisdiction, the Office declines to adjudicate the
merits of the Appellant’s appeal.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#188
Distributed to:
Morgan Adams
David T. Lovely