TO BE PUBLISHED 

93-ORD-132

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 Mr. Nathan Goldman to the Cabinet for Human Resources, Department for Social Services, on January 5, 1993. Mr. Goldman, General Counsel for the Kentucky Board of Nursing, requested copies of "any and all documents concerning accusations of or substantiation of abuse of patients by Mary Sharber, R.N., while employed at Cumberland Hall Psychiatric Hospital, Hopkinsville, Kentucky, which were investigated by the Cabinet for Human Resources." These records were subsequently released to Mr. Goldman with the following admonition:

Mr. Goldman then requested certain medical records referenced in the report. He invoked KRS 61.878(5) of the Open Records Act, which states:

It was Mr. Goldman's position that these documents should be released to the Board of Nursing in the discharge of its statutorily imposed duty to enforce the provision of KRS Chapter 314, the Kentucky Nursing Law.

Although the Department initially released documents relating to its investigation of Mary Sharber, on April 13, 1993, Commissioner Peggy Wallace denied Mr. Goldman's request for the medical records referenced in the investigative report, advising him:

Commissioner Wallace maintained that the Board of Nursing "does not fall within the list of agencies enumerated in KRS 620.050(4)," and that Mr. Goldman's request must therefore be denied.

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

In closing, he noted that since Chapter 620 is intended to insure that the state investigate and take all necessary action to prohibit child abuse and to punish those found guilty of child abuse, it is "inconsistent with this clear intent to prohibit another agency from taking appropriate action, if in fact, a nurse is guilty of abuse of a minor patient."

We are asked to determine if the Department of Social Services properly denied Mr. Goldman's request for medical records referenced in a report prepared by the Department in the course of an investigation into suspected child abuse pursuant to KRS 620.050(4), 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 Mr. Goldman's request was improperly denied.

As Mr. Goldman notes in his letter of appeal to this Office, the Board of Nursing is empowered by statute "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 enforcement agency within the meaning of KRS 620.050(4), 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. 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, revocation, 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

jlh/584

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