Commonwealth v. Lexington H-L Servs., Inc., 382 S.W.3d 875 (Ky. App.,
2012) October 19, 2012

In a letter written on June 5, 2009, the Cabinet denied Estep’s request, claiming that the requested records were uniformly exempt from disclosure under various state and federal laws, including the confidentiality provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Open Records Act’s personal privacy exemption (KRS 61.878(1)(a)), the Act’s exemption for records or information prohibited from disclosure by state or federal law (KRS 61.878(1)(k) and ( l )), and other statutes that generally provide for the confidentiality of the Cabinet’s child abuse investigation records (KRS 194A.060, KRS 620.050(5)). The Herald-Leader appealed the Cabinet’s denial to the Attorney General pursuant to KRS 61.880(2), and on September 11, 2009, the Attorney General issued Open Records Decision 09-ORD-149, which determined that the Cabinet’s actions had not violated the Open Records Act.

The Attorney General determined that the Cabinet had properly withheld the requested information pursuant to KRS 61.878(1)( l ). That provision exempts from inspection “[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]”

The Attorney General found that the exemption applied in this case in light of KRS 194A.060(1), which generally “protect[s] the confidential nature of all records and reports of the cabinet that directly or indirectly identify a client or patient or former client or patient of the cabinet,” and KRS 620.050(5), which limits the individuals to whom a “report of suspected child abuse, neglect, or dependency and all information obtained by the cabinet or its delegated representative, as a result of an investigation or assessment made pursuant to this chapter” may be disclosed. Because Appellees did not fit within the categories of individuals permitted to review the subject records under KRS 620.050(5), the Attorney General concluded that the Cabinet had not acted improperly in declining to disclose those records.

We agree with the circuit court that the Cabinet’s failure to disclose the requested records in this case constituted a “willful” violation of the Open Records Act. Had the Cabinet considered Appellees’ requests on their merits and denied disclosure upon a reasonable basis, perhaps our opinion would be different. However, it is apparent that the Cabinet failed to make particularized analysis and instead relied on an all-encompassing policy of nondisclosure despite the purpose of the Act and despite the acknowledged applicability of KRS 620.050(12)(a) under these circumstances. The circuit court concluded that these denials were made in “bad faith,” and we see no grounds to disagree with that conclusion.

In light of our decision, and per Appellees’ request, we remand this matter to the circuit court for a supplemental award of attorneys’ fees and costs incurred on appeal. Under KRS 61.882(5), upon a showing of a willful withholding, Appellees are entitled to any fees and costs “incurred in connection with the legal action,” which would necessarily include fees and costs incurred in defending the judgment on appeal. Since Appellees have requested a determination on this issue, remand is appropriate. See Moorhead v. Dodd, 265 S.W.3d 201, 205 n. 1 (Ky.2008).

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