NOT TO BE PUBLISHED

95-ORD-5

January 18, 1995

In re: Sudeep Bhatia/Cabinet for Human Resources- Department for Social Services

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Cabinet for Human Resources' denial of Mr. Sudeep Bhatia's request to inspect records concerning his client, Mr. Pete Evans's, five-year-old child. On behalf of the Cabinet for Human Resources, Ms. Peggy Wallace, Commissioner of the Department for Social Services, denied Mr. Bhatia's request. Relying on KRS 61.878(1)(l) and KRS 620.050(4), she advised him that the latter statute prohibits the release of information obtained by the Department in the course of an investigation into an incident of alleged child abuse or neglect, except under certain enumerated circumstances, or to certain identified persons. Since Mr. Bhatia's client is not the custodial parent of the named child, and the alleged abuse was not substantiated, he was not allowed to review the requested records.

We are asked to determine if the Cabinet properly relied on KRS 61.878(1)(l) and KRS 620.050(4) in denying Mr. Bhatia's request. We have dealt with the issue raised in this appeal in a number of prior decisions. For example, in OAG 92-53, we held that KRS 620.050(4) clearly required that the Cabinet for Human Resources and the Department for Social Services withhold from all persons information acquired as a result of an investigation conducted pursuant to KRS 620.050, unless the requesting party can demonstrate that he or she satisfies one of the requirements set forth in KRS 620.050(4)(a) through (f). See also, OAG 92-54; 92-ORD-1502; 94-ORD-134. We believe that this line of decisions is dispositive of the present appeal.

KRS 61.878(1)(l) exempts from mandatory disclosure:

Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.

KRS 620.050(4) insures the confidentiality of information gathered by the Cabinet for Human Resources in cases of reported dependency, neglect, and abuse, and establishes certain circumstances under which, and classes of persons to whom, such information may be made available. It provides:

(4) All information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this section, shall not be divulged to anyone except:

(a) Persons suspected of causing dependency, neglect or abuse, provided that in such cases names of informants shall be withheld unless ordered by the court;

(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected or abused;

(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;

(d) Other medical, psychological, educational, or social service agencies, corrections personnel or law enforcement agencies, including the county attorney's office, that have a legitimate interest in the case;

(e) A noncustodial parent when the dependency, neglect or abuse is substantiated; or

(f) Those persons so authorized by court order.

(Emphasis added.)

This statute clearly requires that the Cabinet for Human Resources and the Department for Social Services withhold from all persons information acquired as a result of an investigation conducted pursuant to KRS 620.050, unless the requesting party can demonstrate that he or she satisfies one of the requirements set forth in KRS 620.050(4)(a) through (f). Mr. Bhatia has not demonstrated that his client falls under any of the statutorily recognized classifications or that his particular situation warrants the release of the requested material. Ms. Wallace confirms this in a letter to this office dated November 7, 1994. Although Mr. Evans is the child's noncustodial parent, the alleged dependency, neglect, or abuse was not substantiated. Accordingly, Mr. Bhatia's client cannot be said to satisfy the requirements of KRS 620.050(4)(e).

While there may be occasions when the unequivocal language of KRS 620.050(4) works an apparent injustice on a noncustodial parent, this office has consistently held that both the Cabinet and the Department are strictly prohibited from releasing information gathered in an investigation, except as otherwise provided in that statute. OAG 87-82; OAG 88-4; OAG 91-93. Accordingly, it is our opinion that the Cabinet properly denied Mr. Bhatia's request.

Mr. Bhatia may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall 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/1405

Distributed to:

Commissioner Peggy Wallace

Department for Social Services

Cabinet for Human Resources

275 East Main Street

Frankfort, Kentucky 40621

Hon. Sudeep Bhatia

Attorney at Law

Appalachian Research and

Defense Fund of Kentucky, Inc.

460 Court Square

Barbourville, KY 40906