NOT TO BE PUBLISHED
January 18, 1996
In re: Rosemary Hollingsworth/Department for Social Services
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Cabinet for Human Resources, Department for Social Services (hereafter Department), in responding to Ms. Rosemary D. Hollingsworth's request to inspect records which relate to the case file of her grandfather, Earl (Short) Hollingsworth. Mr. Hollingsworth's case file is in the Department's custody as a result of his having been a former resident of Kentucky Children's Home which was maintained and operated by the Commonwealth of Kentucky.
In her open records request and her letter of appeal, Ms. Hollingsworth indicates the Department had initially informed her that in order for her to inspect the case file of her grandfather, she needed a signed release from the executor of her grandfather's estate. However, her grandfather died intestate leaving no estate to administer. Ms. Hollingsworth was then advised she would need to furnish the Department with the guardian record of her grandmother, Myrtle Hollingsworth, and a signed release from her grandmother's guardian, Paul Hollingsworth.
Along with her open records request, Ms. Hollingsworth enclosed a Warranty Deed to show that her grandfather had died intestate; court records to show the appointment of Paul Hollingsworth as her grandmother's guardian; and a release signed by Paul Hollingsworth authorizing the release of the Department's case file of Earl (Short) Hollingsworth to Rosemary Hollingsworth.
On behalf of the Department for Social Services, Commissioner Peggy Wallace, relying on KRS 61.878(1)(j) and KRS 199.570 (relating to the confidentiality of adoption records) denied Ms. Hollingsworth's request in accordance with these statutes which prohibit the disclosure of adoption records, except upon order of the court which entered the judgment of adoption.
The undersigned, pursuant to KRS 61.880(2)(b), contacted Ms. Elaine Campbell, Records Section Supervisor, Cabinet for Human Resources, to obtain additional documentation regarding this open records request. Ms. Campbell explained that the Department had inadvertently cited the wrong statute, KRS 199.570, in denying Ms. Hollingsworth's request. In response to our request, Ms. Campbell, by letter, provided additional information concerning the Department's case file records involving Earl (Short) Hollingsworth. In her letter, Ms. Campbell states the following:
Ms. Rosemary Hollingsworth's open records request and her subsequent appeal to the Attorney General's office has been reviewed. It has been determined that this office inadvertently used the wrong statute to deny
Ms. Hollingsworth's request.
Ms. Hollingsworth, in her initial request, stated that her grandfather had died on January 1, 1968. She also stated that an earlier letter to her grandfather stated the home (Meaning Kentucky Children's Home) had never received notification of his legal adoption. In our response, we asked for a release from the executor of her grandfather's estate giving us permission to share this information with her. Mr. Earl Short Hollingsworth's file was reviewed and it was determined that he was never adopted. Ms. Hollingsworth responded with a release of information from her uncle, who was guardian for her mother.
Since we never received a proper release, the request was denied. The correct statutes supporting denial are KRS 61.878(1)(l) and KRS 194.060(1).
KRS 61.878(1)(l) provides:
(1) The following public records are excluded from application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction . . .
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 194.060(1) provides:
(1) The secretary shall develop and adopt regulations and rules which protect the confidential nature of all records and reports of the cabinet which directly or indirectly identify a client or patient or former client or patient of the cabinet for human resources and which insure that these records are not disclosed to or by any person except as, and insofar as: (a) The person identified or his guardian, if any, shall give his consent:
Therefore, denial would still be the appropriate response because we did not receive a request from the person themselves or an executor acting on their behalf.
We are asked to determine if the Department for Social Services violated the Open Records Act when it denied Ms. Hollingsworth's request. For the reasons which follow, we conclude that the Department properly denied her request under the exceptions to the Act cited in Ms. Campbell's response letter to this office, i.e., KRS 61.878(1)(l) and KRS 194.060(1).
KRS 194.060(1) requires the Department to protect the confidential nature of all records of a patient or client and insure that these records are not disclosed to any person except as, and insofar as, the person identified in the records or his guardian has given consent to the release or disclosure of the records.
Ms. Hollingsworth indicates, in her letter of appeal, that her grandfather was taken from the Children's Home and put in the care of Charles and Minnie Hollingsworth with the intention of adoption, but adoption never took place. She states that ninety years have passed and all parties are now deceased. Thus, under the facts presented in this appeal, there could be no release from either Earl (Short) Hollingsworth or his guardians, Charles and Minnie Hollingsworth as required by KRS 194.060(1).
In seeking additional information from the Department concerning this appeal, Ms. Campbell indicated to the undersigned that since neither Ms. Hollingsworth nor Earl (Short) Hollingsworth's wife nor her court appointed guardian fell within that group of persons, i.e., either the person identified in the Department case file or his guardian, to which the records could be released or disclosed, the Department was precluded by KRS 194.060(1) from releasing the records. 93-ORD-78. Under this circumstance, Ms. Campbell stated that the records could only be released by the Department upon order of the appropriate court.
In 95-ORD-20, this office stated:
While there may be occasions when the unequivocal language of KRS 620.050(4) and KRS 194.060(1) work an apparent injustice on a party interested in the welfare of a child, this office has consistently held that the Cabinet and the Department are strictly prohibited from releasing information gathered in an investigation, or which directly or indirectly identifies a client or patient, or former client or patient, except as otherwise directed in the statute.
From the facts presented in this appeal, Ms. Hollingsworth cannot satisfy the requirements of KRS 194.060(1). To obtain access to the case file relating to Earl (Short) Hollingsworth, she must seek a court order from the appropriate court to have the Department release the records to her. Accordingly, it is the decision of this office that the Department properly denied access to the requested records under authority of KRS 61.878(1)(l) and KRS 194.060(1).
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.
A. B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Records Section Supervisor
Cabinet for Human Resources
275 East Main Street
Frankfort, KY 40621
Rosemary D. Hollingsworth
10141 Old Henderson Road
Evansville, Indiana 47712