95-ORD-053

TO BE PUBLISHED

95-ORD-53

April 4, 1995

In re: Theodore E. Cowen/Cabinet for Human Resources

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Cabinet for Human Resources' denial of Mr. Theodore E. Cowen's open records request.

On December 13, 1994, Mr. Cowen, on behalf of Educare Learning Center of Lexington, Inc., Linda McGee and Kim Toohey, requested the following documents under the Open Records Act:

All records concerning investigations of alleged child abuse and/or neglect occurring at Educare Infant & Toddler Center in Lexington, Kentucky and with respect to the following children: [five named children].

Mr. Cowen explains in his letter that Ms. McGee and Ms. Toohey are Directors of the Center within the meaning of 905 KAR 2:001E §1(5). Educare Learning Center of Lexington, Inc., is the corporate owner and operator of Educare Infant & Toddler Center.

On December 15, 1994, Ms. Peggy Wallace, Commissioner, Department for Social Services, Cabinet for Human Resources, denied Mr. Cowen's request. In support of her denial, Ms. Wallace cited KRS 61.878(1)(l) and KRS 620.050(4).

KRS 61.878(1)(l) provides:

The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:

(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.

The specific statute or enactment of the General Assembly relied upon by the Cabinet for Human Resources in its letter of denial was KRS 620.050(4), which provides:

All information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter, 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;

(d) Other medical, psychological, educational, or social services 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.

We are asked to determine if the Cabinet properly relied on KRS 61.878(1) and KRS 620.050(4) in denying Mr. Cowen's request.

This office has held in prior opinions that KRS 620.050(4) 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 he or she satisfies one of the requirements set forth in KRS 620.050(4)(a) through (f). 92-ORD-1502; OAG 88-4; and OAG 87-82.

In her letter of denial, Ms. Wallace stated that Mr. Cowen's request must be denied because his clients did not fall within the exceptions listed in KRS 620.050(4).

In his request letter, Mr. Cowen stated that pursuant to KRS 620.050(4)(a), these letters should be made available to his clients with appropriate redaction of any informants' names. Along with his request, Mr. Cowen included a signed authorization for him to act on his clients' behalf.

KRS 620.050(4)(a) provides:

(4) All information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter, 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[.]

(Emphasis added.)

Mr. Cowen argues that his clients Kim Toohey and Linda McGee are "Directors" of the Center within the meaning of 905 KRS 2:001E §1(5) (this emergency regulation has been adopted by the legislature and is now promulgated as 905 KAR 2:001 §1(6), effective 10-13-93) and with the responsibilities outlined in 905 KAR 2:110 for child day care facilities.

Mr. Cowen states that the Cabinet, through its Division of Licensing and Regulation, has cited the Center with a deficiency for the failure of its directors to insure the safety and welfare of one child who was also named in the child abuse investigations which are the subject of his open records request.

Mr. Cowen then reasons that because the Center has been cited for the failure of its directors--Ms. Toohey and Ms. McGee--to provide for the safety of this child, that they are each a "person suspected of causing dependency, neglect or abuse" under KRS 620.050(4)(a) and, as such, they are entitled to receive a copy of all records related to the investigation of any alleged abuse or neglect of this child.

We do not find authority to support this argument and we are reluctant to entertain subtle distinctions in defining the word "person" under KRS 620.050(4)(a) when the statute is plain on its face. From Mr. Cowen's description, the Center was cited for a deficiency in meeting requirements relating to the safety and welfare of a child, presumably provided for in KRS 199.894, et seq., relating to day care centers and regulations, promulgated under authority of KRS 199.896(2), which establish standards of care and service for the day care centers. 905 KAR 2:110.

This is to be distinguished from an investigation, pursuant to KRS Chapter 620, of a report of dependency, neglect or abuse of a child. Under KRS 620.050(4), the Cabinet is required to withhold from the public information obtained as a result of its investigation unless the requester satisfies one of the exceptions set out in KRS 620.050(4)(a) through (f).

Mr. Cowen states his clients each satisfies KRS 620.050(4)(a), i.e., a "person suspected of causing dependency, neglect, or abuse" of a child.

Ms. Wallace denied Mr. Cowen's request stating that his clients did not fall within any of the exceptions set forth in KRS 620.050(4)(a) through (f).

The undersigned, pursuant to KRS 61.880(2)(b). contacted Ms. Elaine Campbell, Open Records Coordinator, Cabinet for Human Resources, to obtain additional documentation regarding this open records request. Ms. Campbell stated that Mr. Cowen's request was denied because his clients, Ms. Toohey and Ms. McGee, were not persons suspected of causing dependency, neglect or abuse of a child under KRS Chapter 620 and, thus, did not fall within the exceptions which would entitle them to the reports they requested.

It is the decision of this office that the Cabinet properly denied Mr. Cowen's request for all the reports concerning investigations of alleged child abuse at Educare Infant and Toddler Center, because his clients were not persons suspected of causing child abuse,and thus did not satisfy the requirements of KRS 620.050(4)(a).

Mr. Cowen may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/1698

Distributed to:

Peggy Wallace, MSSW

Commissioner

Department for Social Services

Cabinet for Human Resources

275 East Main Street

Frankfort, KY 40621

Theodore E. Cowen

Miller, Griffin & Marks, P.S.C.

271 West Short Street

Suite 700 Security Trust Building

Lexington, KY 40507-1292