TO BE PUBLISHED 

93-ORD-131

November 9, 1993

IN RE: Nathan Goldman/Cabinet for Human Resources,

Department of Social Services

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by The Kentucky Board of Nursing to the Cabinet for Human Resources, Department for Social Services (Department), on March 5, 1993. Mr. Nathan Goldman, General Counsel for the Kentucky Board of Nursing, challenges the Department's denial of a request submitted by Ms. Connie K. Lusher, Credentials Consultant for the Board, for copies of the "[i]nvestigation by Marty Dickerson, DSS, Danville, Kentucky regarding complaint of suspected patient abuse at Friendship House, Danville by Aline C. Ponder, L.P.N."

On behalf of the Department for Social Services, Commissioner Peggy Wallace denied Ms. Lusher's request on April 14, 1993. She relied on KRS 209.140, prohibiting the release of information gathered by the Department in the course of an investigation into allegations of adult abuse except to certain identified individuals or agencies, and under certain circumstances. She explained:

In his letter of appeal to this Office, Mr. Goldman argues that the requested records relate to possible violations of KRS Chapter 314, the Kentucky Nursing Law, which the Board of Nursing is charged with enforcing. He observes:

In closing, Mr. Goldman notes that since Chapter 209 is intended to insure that the state investigate and take all necessary action to prohibit adult abuse, it is "inconsistent with this clear intent to prohibit another state agency from taking appropriate action, if in fact, a nurse is guilty of abuse of a patient."

The question presented in this appeal is whether the Department for Social Services properly denied Ms. Lusher's

request for the report prepared by the Department in the course of its investigation into suspected adult abuse pursuant to KRS 209.140, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(k). For the reasons set forth below, we conclude that Ms. Lusher's request was improperly denied.

As Mr. Goldman notes in his letter of appeal to this Office, the Board of Nursing is empowered by statutes "to deny, limit, revoke, probate or suspend any license to practice nursing issued by the Board or applied for in accordance with [Chapter 314], or to otherwise discipline a licensee, or to deny admission to the licensure examination . . . upon proof that the person . . ." has engaged in conduct, delineated in the statute, which demonstrates that he or she is unfit for the profession. KRS 314.091(1)(a) through (h). In our view, the Board may therefore properly be characterized as a law enforce-

ment agency within the meaning of KRS 209.140, which provides, in part:

* * *

The term "law enforcement 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," we believe that the Board of Nursing may be characterized as a law enforcement agency relative to its enforcement of the laws relating to nursing. In so

characterizing the Board of Nursing, we advance the stated goals of Chapter 209, as well as Chapter 314, by facilitating the acquisition of information which the Board needs to eliminate, through license suspension or revocation, one source of abuse. Moreover, we avoid an unnecessary duplication of efforts by two public agencies whose goals are, at least with respect to the facts giving rise to this appeal, parallel.

Even if the Board of Nursing is not considered to be a law enforcement agency within the meaning of KRS 209.140, we believe that KRS 61.878(5) mandates release of the Department's records to it. That statute provides:

This provision has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies for legitimate governmental purposes. OAG 77-666; OAG 79-475; OAG 79-608; OAG 85-94; OAG 91-22; OAG 91-86. Indeed, we have held that "regardless of the nature of the [records], . . . denial of the request of one public agency to inspect the public records of another public agency [is] improper and in violation of the Open Records Law if the request was made for legitimate governmental purposes." OAG 85-94.

It is abundantly clear that the Department for Social Services and the Board of Nursing are "public agencies" as defined at KRS 61.870(1). It is equally clear that the Board is engaged in the performance of a legitimate government function assigned to it under KRS 314.091(1) and KRS 314.131(1), i.e., it is engaged in a review of charges calling for the discipline of a licensee, or the suspension, revo-

cation, or limitation of her license. We must therefore conclude that none of the recognized exceptions to the Open Records Act applies. Instead, the Act mandates an open exchange of public records and the sharing of information between the Department and the Board.

This Office has also recognized that "the sharing of information among public . . . agencies does not mean that such

information can be made available to the public if it is of a confidential nature." OAG 77-666. The Board should therefore exercise caution in its examination of the disputed records, and should protect against the general release or publication of the materials in view of their sensitive nature.

The Department for Social Services may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any actions in the circuit court, pursuant to KRS 61.880(3), he should not be named as a party in those actions or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

par/583

Distributed to:

Commissioner Peggy Wallace

Department of Social Services

Cabinet for Human Resources

275 East Main Street

Frankfort, KY 40621

Hon. Nathan Goldman

General Counsel

Kentucky Board of Nursing

312 Whittington Parkway, Suite 300

Louisville, KY 40222-5172