Preview:

RENDERED: MAY 3, 2013; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-000396-MR THE COUNCIL ON DEVELOPMENTAL DISABILITIES, INC.

APPELLANT

v.

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 10-CI-01325

CABINET FOR HEALTH AND FAMILY SERVICES

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; MOORE AND VANMETER, JUDGES. VANMETER, JUDGE: The Council on Developmental Disabilities, Inc. ("Council") appeals from the February 9, 2011, opinion and order of the Franklin Circuit Court denying its motion for declaratory judgment which sought to compel the Cabinet for Health and Family Services ("Cabinet") to produce certain

documents related to individuals who died in community placements. For the following reasons, we affirm. The Council is a nonprofit corporation located in Kentucky that claims to advocate for "children and adults with mental retardation and their families and other interested persons in the community." In January 2010, April Duval, the Executive Director of the Council, requested from the Cabinet "copies of all investigative and follow-up activities completed on behalf of Richard Tardy[,]" a recipient of Cabinet services. The Cabinet denied the request, citing KRS1 209.140 as the basis for its refusal. KRS 209.140 provides that: All information obtained by the department staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except: (1) Persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld; (2) Persons within the department or cabinet with a legitimate interest or responsibility related to the case; (3) Other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case; (4) Cases where a court orders release of such information; and (5) The alleged abused or neglected or exploited person.

1

Kentucky Revised Statutes.

-2-

(emphasis added). The Cabinet determined the Council was not a social service agency with a legitimate interest in the case in which it sought records, and thus, the Cabinet was not authorized to disclose the records. The Council appealed to the Office of the Attorney General ("OAG"), which affirmed the Cabinet's denial of the open records request. The Council did not appeal the OAG's decision. The Council then submitted a second request to the Cabinet, seeking documents related to the death of Gary Farris, or the deaths of any other individuals who were transferred by the Cabinet and who died in a community placement. The Cabinet again denied the request, relying on KRS 209.140 and the prior OAG decision.2 The Council did not appeal to the OAG, and instead filed the underlying action for declaratory judgment seeking an order requiring the Cabinet to disclose the requested records.3 Agreeing with the OAG and the Cabinet, the trial court determined that the Council failed to prove it had a "legitimate interest" in the cases in which it sought otherwise confidential records, as required under KRS 209.140(3). This appeal followed.

2

In accordance with KRS 61.880(5)(b), if an OAG decision is not appealed to circuit court within thirty days, the decision has the force and effect of law and is enforceable in the circuit court where the public agency has its principal place of business or the county in which the records are maintained. Here, the Council sought documents related to any other individuals who died in a community placement. This request necessarily includes the documents related to Richard Tardy's death, and is barred under the principles of res judicata. See Kentucky Bar Ass'n v. Harris, 269 S.W.3d 414, 418 (Ky. 2008) (holding that "[d]ecisions of administrative agencies acting in a judicial capacity are entitled to the same res judicata effect as judgments of a court[]") (citation omitted).
3

Persons alleging violations of the Kentucky Open Records Act are not required to exhaust their remedies under KRS 61.880 before filing for a declaration of rights in Circuit Court. KRS 61.882(2).

-3-

On appeal, the Council argues the trial court erred by holding the Cabinet records were exempt from disclosure under the Kentucky Open Records Act. We disagree. Judicial review of an agency's decision to deny an open records request is approached on a case-by-case basis. Palmer v. Driggers, 60 S.W.3d 591, 597 (Ky. App. 2001) (citing Kentucky Bd. of Exam'rs v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324 (Ky. 1992)). The trial court's decisions on questions of law are considered under de novo review. Medley v. Bd. of Educ., 168 S.W.3d 398, 402 (Ky. App. 2004). Kentucky's Open Records Act, KRS 61.871 et seq., seeks to ensure the free and open examination of public records. KRS 61.871. Certain public records remain exempt from disclosure under KRS 61.878, including "[p]ublic 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 details the confidential nature of information obtained by the Cabinet with respect to investigations it conducts in the furtherance of services it provides to certain adults in the Commonwealth. Of particular relevance to the case at hand is the provision of KRS 209.140 which provides that information obtained by the Cabinet as a result of an investigation "shall not be divulged to anyone" except certain persons and entities, including "medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case[.]" KRS 209.140(3). The Council claims to be a social service agency -4-

with a legitimate interest in the cases of Farris, and other individuals transferred by the Cabinet to a community placement who subsequently died. The trial court determined that the Council was most likely not a social service agency as contemplated by KRS 209.140(3); however, it did not address that issue in depth because it concluded the Council did not have a legitimate interest in the case. The trial court found that "legitimate interest" was ambiguous because the statute did not define it and the phrase can lend itself to more than one meaning. Under the rules of statutory construction, the trial court defined "legitimate" in accordance with Black's Law Dictionary4 as "[t]hat which is lawful, legal, recognized by law or according to law . . . real, valid or genuine." Finding no law recognizing the Council's interest in the case, and finding it did not provide any social services to the persons whose records it requested, the trial court concluded that the Council failed to establish a legitimate interest in the case within the meaning of KRS 209.140(3). The Council argues the trial court's interpretation of KRS 209.140(3) is unduly restrictive of the purpose of the Open Records Act. In support of its claim to have a legitimate interest in the case, the Council cites to KRS 209.030(11), which provides, in part, that the Cabinet "shall consult with local agencies and advocacy groups . . . to encourage the sharing of information, provision of training, and promotion of awareness of adult abuse, neglect, and exploitation, crimes against the elderly, and adult protective services." However, this provision merely
4

Abridged 6th ed. 1991.

-5-

reinforces the Cabinet's duty "[t]o provide for the protection of adults who may be suffering from abuse, neglect, or exploitation, and to bring said cases under the purview of the Circuit or District Court[.]" KRS 209.010(1)(a). We read KRS 209.030(11) as encouraging the Cabinet to gather information from various agencies and other entities, rather than increasing the obligations of the Cabinet to disclose information under KRS 209.140(3). Simply put, KRS 209.030(11) does not grant the Council a legitimate interest in the Cabinet's case on Farris or other individuals. The Council further argues that it has a legitimate interest in the case due to its general advocacy efforts such as monitoring and publicizing problems with community placement programs, though it concedes it did not provide any direct services to Farris or the other individuals whose records it seeks. Despite the Council's stated goal and efforts to achieve such, we are bound to construe KRS 209.140 in accordance with its plain language in order to effectuate the legislative purpose behind the statute. Cabinet for Families & Children v. Cummings, 163 S.W.3d 425, 430 (Ky. 2005) (citation omitted). We find the trial court's interpretation of legitimate interest to be sound. Since the Council has no legallyrecognizable interest in this case, the Cabinet met its burden of proof for denying the Council's open records request. The opinion and order of the Franklin Circuit Court is affirmed. ACREE, CHIEF JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION. -6-

MOORE, JUDGE, DISSENTS AND FILES SEPARATE OPINION. ACREE, CHIEF JUDGE, CONCURRING: Respectfully, I concur in result only. I would not base the holding on the Council's failure to establish a legitimate interest in the circumstances surrounding Farris's death or other individuals similarly situated. My analysis does not reach this second hurdle; if it did, I likely would agree with the dissent. However, I conclude that the Council cannot clear the first hurdle; it is not an "agency" as the term is used in KRS 209.140(3). For the following reasons, I believe the legislature intended that term to include only government agencies, not private entities such as the Council. This is a case of pure statutory interpretation. KRS 209.140 is a restriction on the authority of the "department" to disclose information. The "department" is the Department for Community Based Services, KRS 209.020(3), and it is an agency of state government. KRS 12.020.II.8.(n). Within state government, there are several "[o]ther medical, psychological, or social service agencies[,]" KRS 209.140(3), including the Office of Health Policy, the Department for Public Health, the Department for Medicaid Services, the Department for Behavioral Health, Developmental and Intellectual Disabilities, and the Department for Aging and Independent Living, to name a few within the same Cabinet. KRS 12.020.II.8.(b), (j) - (m). I understand subsection (3) of KRS 209.140 to authorize disclosure of confidential information by that agency (the Department for Community Based Services) only to such "other medical, -7-

psychological, or social service agencies" as the examples listed above

Download 2011-ca-000396-mr.pdf

Kentucky Law