96-ORD-198

NOT TO BE PUBLISHED

96-ORD-198

September 17, 1996

In re: William K. Burkhead/Cabinet for Families and Children

Open Records Decision

This matter comes to the Attorney General on appeal from the Cabinet for Families and Children's partial denial of Billy R. Davis's request to inspect various records relating to the Cabinet's investigation into allegations of sexual abuse leveled against Mr. Davis. Although the Cabinet for Families and Children released 54 pages of its report to Mr. Davis on July 10, 1996, the Cabinet apparently withheld certain unidentified records which he was not “permitted to review . . . in accordance with KRS 194.060 and KRS 61.878(1)(l). . . .”

On behalf of Mr. Davis, William K. Burkhead, assistant public advocate, initiated this appeal. Mr. Burkhead identified four documents which Mr. Davis did not receive, [1] and asserted that KRS 620.050(4)(a) entitles him to those documents because he was the person charged with abuse.

We are asked to determine if the Cabinet for Families and Children violated provisions of the Open Records Act in denying Mr. Davis's request. For the reasons set forth below, we conclude that the Cabinet's response was largely consistent with the Act.

In response to this office's “Notification of Receipt of Open Records Appeal,” Elaine Campbell, records section supervisor, advised this office that the documents identified in numbered paragraphs 1, 2, and 4 of Mr. Burkhead's letter of appeal do not exist. It is our understanding that although there is no July 15, 1994, report responsive to the third item identified in Mr. Burkhead's letter of appeal, the Cabinet has now provided Mr. Burkhead and Mr. Davis with a June 15, 1994, report, as well as a related entry, which may be responsive to this request. Nevertheless, Ms. Campbell asserts that Mr. Davis has received “all of the reports of neglect, physical abuse and sexual abuse . . . that he is eligible to receive according to KRS 620.050(4).” [2] She observes:

Mr. Davis is not [the victim's] father or guardian. . . . According to KRS 620.050(4)(a), he has been provided with copies of all of the information that [the Cabinet has] concerning him as an alleged perpetrator.

Ms. Campbell concludes that because “[h]e does not fall within any of the exceptions listed in the above statute to receive any other reports . . . concerning [the victim],” he is not entitled to inspect them.

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 Families and Children 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;

(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.

This statute clearly requires that the Cabinet for Families and Children 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). OAG 87-82; OAG 88-4; OAG 91-93; OAG 92-53; 92-ORD-1502. Mr. Davis has been furnished with copies of all of those records of the Cabinet to which he is entitled as the person suspected of causing dependency, neglect, or abuse. The Cabinet denies the existence of three of the records which he believes it has wrongfully withheld, and released the fourth record to him. The Open Records Act does not require more. OAG 86-38; OAG 90-69; OAG 91-220; 96-ORD-101; 96-ORD-164.

A party aggrieved by this decision may appeal it 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 proceeding.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

1005

Distributed to:

Elaine Campbell

Records Section Supervisor

Cabinet for Families and Children

275 East Main Street

Frankfort KY 40601

William K. Burkhead

Assistant Public Advocate

Department of Public Advocacy

260 Commerce Street

P. O. Box 50

Eddyville KY 42038

Billy R. Davis #121366

Western Kentucky Correctional Complex

P. O. Box 5000

Eddyville KY 42038

Footnotes

[1] Those records consist of a July, 1986, social worker's report, a report by Judge Stewart wherein he placed the victim in the custody of the Department of Social Services, a July 15, 1994, report from a social worker supervisor to a State Police detective, and an October 17, 1994, order issued by Judge Stewart releasing the victim from state custody, and returning her to Mr. Davis's home.

[2] Ms. Campbell relies on KRS 620.050(4) to partially deny Mr. Davis access to records. In its original response, the Cabinet relied on KRS 194.060, relating to records which identify a client or patient of the Cabinet. Although Ms. Campbell does not explain this discrepancy, we are satisfied that both provisions operate to permit the Cabinet to withhold public records.