NOT TO BE PUBLISHED
May 8, 1995
In re: Carol Bottoms/Cabinet for Human Resources
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Cabinet for Human Resources' denial of Ms. Carol Bottoms's open records request, on behalf of Rockford Manor, Shively, Kentucky, to inspect a copy of a complaint investigation which was conducted by Adult Protective Services, Division for Social Services, Cabinet for Human Resources (hereafter referred to as "CHR"), at Rockford Manor involving the alleged sexual misconduct of one resident towards another resident at the facility.
Ms. Peggy Wallace, Commissioner, Division for Social Services, CHR, denied Ms. Bottoms's request. In support of her denial, Ms. Wallace cited KRS 61.878(1)(a) and KRS 209.140.
KRS 61.878(1)(a) provides:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction...
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 209.140 provides:
All information obtained by the department staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except: (a) persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless ordered by the court; (b) persons within the department or cabinet with a legitimate interest or responsibility related to the case; (c) other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case; (d) cases where a court orders release of such information; and (e) the alleged abused or neglected or exploited person.
Relying upon these statutes, Ms. Wallace explained that Ms. Bottoms's request to inspect a copy of the Department of Social Services' investigation record regarding the above complaint "must be denied because she did not fall within the above statutory definitions."
In her letter of appeal, Ms. Bottoms states:
Attached is a copy of a letter I received from Mrs. Peggy Wallace of the Department of Social Services, denying my request for a complaint investigation done at this facility by Adult Protective Services. I find this denial strange, as my staff initiated the complaint to APS and furnished all information regarding the investigation. It is my responsibility as Administrator of the facility to safeguard my residents from abuse from other residents, which was the problem in this case. Since my staff was not suspected of the abuse and we were the ones bringing it to APS's attention, I feel it is silly to withhold the results of the investigation from us. As (c) of KRS 209.140 states,
"Medical agencies that have a legitimate interest in the case" are allowed access to the information. Does this not qualify us to receive the records requested?
For the reasons set forth below, it is the decision of this office that the Department for Social Services properly denied Ms. Bottoms's request to inspect the investigation record.
Among the documents which may be excluded from public inspection, in the absence of a court order, are "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l).
KRS 209.140 requires the Department for Social Services to keep confidential information obtained as a result of an investigation of adult abuse except to certain enumerated classes of individuals.
In order for Ms. Bottoms to be allowed to inspect this information, she must demonstrate that she satisfies one of the exceptions set forth in KRS 209.140(1) through (f). On appeal, she argues that Rockford Manor qualifies under subsection (c) as a medical agency that has a legitimate interest in the case. The term "medical agency" is not defined in the statutes, nor can we find a definition in any recognized legal reference consistent with the rule of statutory construction, codified at KRS 446.080, that "[a]ll words and phrases shall be construed according to the common and approved usage of language." "Medical" is defined in Webster's New World Dictionary, Second College Edition, as "of or connected with medicine or the practice or study of medicine." Thus, we believe "medical agencies," as referred to in KRS 209.140, would be agencies that provide direct medical services to a victim of adult abuse as a result of such abuse.
Rockford Manor does not fall within the definition of medical agency as contemplated by KRS 209.140. Under authority of KRS 61.880(2)(b), we contacted Ms. Elaine Campbell, Records Management, Division for Social Services, to obtain additional information as to how Rockford Manor, as a facility, was classified. Ms. Campbell stated that it was classified as an adult nursing home facility and not as a medical agency.
Accordingly, the Department for Social Services properly denied Ms. Bottoms's request to inspect a copy of the complaint investigation as she did not fall within a classification of persons excepted from the confidentiality requirements of KRS 209.140.
Because of the result reached above, we will not address the agency's additional reliance upon KRS 61.878(1)(a) as a basis for denying disclosure. However, we would note that an agency's response denying inspection on the basis of a privacy interest should provide a brief explanation of how the exception applies to the record withheld. Mere citation of the specific exception is not enough.
Ms. Bottoms may challenge this decision 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 proceedings.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Commissioner Peggy Wallace
Department for Social Services
Cabinet for Human Resources
Department for Social Services
275 East Main Street
Frankfort, KY 40621
Ms. Carol Bottoms, Administrator
4700 Quinn Drive
Shively, KY 40216