NOT TO BE PUBLISHED
94-ORD-123
October 25, 1994
In re: Betty J. Clark/Cabinet for Human Resources,
Department for Social Services
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Ms. Betty J. Clark, to the Cabinet for Human Resources, Department for Social Services. Ms. Clark requested records pertaining to the Department's investigation into the abuse, neglect, and ultimate death of her mother, Ms. Rhoda E. Bagwell. The Department responded to Ms. Clark's request in a letter dated September 6, 1994. Relying on KRS 209.140, Commissioner Peggy Wallace advised Ms. Clark that her request was denied "in accordance with [this] statute."
We are asked to determine if the Department for Social Services properly denied Ms. Clark's request for records relating to its investigation into the abuse and neglect of her mother. For the reasons set forth below, we conclude that the Department's response, although procedurally deficient, was substantively correct.
Commissioner Wallace's response was technically deficient insofar as she failed to cite an exception authorizing nondisclosure or provide a brief explanation of how
the exception applies to the records withheld as required by KRS 61.880(1). The Department should review this provision to insure that future responses conform to the Open Records Law.
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 provides:
All information obtained by the department [for Social Services] staff or its delegated representative, as a result of an investigation [into suspected adult abuse] 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.
As noted, KRS 209.140 is incorporated into the Open Records Law by operation of KRS 61.878(1)(l). Together, these provisions authorize the Department to withhold information compiled in the course of an investigation of adult abuse except to certain enumerated classes of individuals. OAG 91-230; 94-ORD-82.
Ms. Clark does not fall within one of these classes. Although she has a legitimate interest in the case, that interest is one of an aggrieved relative, and not that of a member of one of the recognized classes. Whatever injustice the law may work in such instances, we are constrained by the express language of the statute. KRS 209.140 authorizes the
Department for Social Services to withhold records obtained by the Department as a result of an investigation into suspected adult abuse from all persons except those specifically identified. Therefore, the Department properly denied Ms. Clark's request.
Ms. Clark may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.
Chris Gorman
Attorney General
Amye B. Majors
Assistant Attorney General
res/1226
Distributed to:
Peggy Wallace, MSSW
Commissioner
Department for Social Services
Cabinet for Human Resources
275 East Main Street
Frankfort, Kentucky 40621
Ms. Betty J. Clark
6514 Ridge Cliff Road
Louisville, Kentucky 40228