Tuesday, November 8, 2016

Family Cabinet properly withheld adoption records when requester did not have court order

The Cabinet for Health and Family Services did not violate the Open Records Act when it declined to release adoption records, but did violate it by failing to stick to the time limits.

On Sept. 30, 2016, the Office of Attorney General Andy Beshear issued an opinion in the matter of In re: Mark Hardin/Cabinet for Health and Family Services, 16-ORD-213.

Hardin requested records on Aug. 10 about an adoption of four children in 1927. The Cabinet denied the request multiple times, including by telephone on Aug. 19.

The appeal was initiated by Hardin on Aug. 29.

In its response, the Cabinet stated that the records were of adoption by the state, for them to be adopted out to families. It cited an act of the General Assembly passing legislation that ensured all adoption records remain confidential, citing KRS 199.570, and that that statute is an exemption to the Open Records Act, via KRS 61.878(1)(l).

Beshear noted that the Cabinet failed to meet the timely response requirement of the law, in not responding to the Aug. 10 request in writing within three days, meaning if failed in two ways: the writing and the time period.

Beshear also noted that there was another procedural violation, when the Cabinet failed to provide a statement of the specific exception to Hardin and an explanation of how the exception applies.

Lastly, Beshear held that Hardin is required to get a court order to be able to review the requested records, per statute, and that the Cabinet did not err in withholding the records from Hardin until such time as he has a court order.

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