Until the law can be amended, there is a temporary solution in the form of a carefully drafted memorandum of agreement for sharing the records with the auditor's ombudsman under terms of strict confidentiality and only for the legitimate governmental purpose stipulated. (Getty Images)
Gov. Andy Beshear and Auditor of Public Accounts Allison Ball squared off earlier this month in a legal dispute over the auditor’s access to iTWIST, a database maintained by the Cabinet for Health and Family Services that “track[s] the state’s efforts to assist its most vulnerable citizens” and that was available to the ombudsman attached to CHFS until July 1, 2024.
Senate Bill 48 , enacted in the 2023 regular session with a delayed effective date, “moved the ombudsman’s office from CHFS to the newly created Commonwealth Office of the Ombudsman in the auditor’s office. The auditor maintains she must have full access to iTWIST in order for the commonwealth ombudsman’s office to discharge its newly assigned duty.
The bill’s primary sponsor, Sen. Stephen Meredith, insists that the bill’s “clear intent was for the [auditor’s] office to have access to the iTWIST database. This common-sense reform ends the practice of the cabinet investigating itself. The language of this bill is clear and undeniable.”
The governor, however, is not convinced. He maintains that in reassigning the duties of ombudsman to the auditor in the 2023 regular session, the General Assembly neglected to revise current laws restricting disclosure of information stored in iTWIST.
Welcome move to boost child protection in Kentucky trips over conflicting views of the law
He has not publicly described the compromise the administration proposed to the auditor until the CHFS confidentiality statutes can be revised. Instead, he asserted that he is statutorily foreclosed from giving the auditor full access to the database until next year’s session and a legislative fix.
According to Kentucky Lantern contributor Deborah Yetter, Beshear has ignored a “demand letter” for access to iTWIST that Ball’s office delivered to his office in early July.
Yetter knows a bit about the subject, having successfully litigated an open records case involving child fatality and near fatality records under KRS 620.050 — the same statute the governor belatedly invoked to deny the auditor access — as a reporter with the Courier Journal during the gubernatorial administration of Beshear’s father, Steve Beshear.
With due respect to the warring constitutional officers, this dispute is a political tempest in a public records teapot.
Yes, multiple CHFS-specific confidentiality statutes are embedded in Kentucky law. In fact, KRS 620.050 —- on which, as noted, Gov. Beshear relies — according to the Lantern — led to Yetter’s, and other newspapers’, open records appeals. The appeals culminated in two scathing Kentucky Court of Appeals 2016 opinions denouncing the “culture of secrecy” at CHFS — then operating under Gov. Steve Beshear — for its refusal to disclose child fatality and near fatality reports.
Some of these CHFS-specific confidentiality statutes are broadly worded; some are narrowly worded; most establish statutory carve outs for classes of individuals or entities with a legislatively recognized need for access.
One thing is certain, the existence of a statutory confidentiality provision has not — at least in the past — precluded the exchange of confidential records or the sharing of confidential information between public agencies “when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.”
This statutory language — which appears at KRS 61.878(5) — has long been construed to “promote agency sharing of otherwise exempt public records” for legitimate government purposes. Although “there is no unqualified right for one entity to examine” the confidential records of another “in their entirety and without restrictions,” past attorneys general have deemed responsible agency sharing of protected records between public agencies, under terms of strict confidentiality, a “laudable goal” that is to be “strongly encouraged.”
This sharing “ eliminates duplication of effort and conserves resources” when the recipient public agency verifies to the custodial public agency that the shared information “is necessary in the performance of a legitimate government function” and agrees to observe the records’ confidentiality.
For example, a 2011 open records decision turned on the existence of a memorandum of agreement between the Medicaid Fraud and Abuse Control Unit of the Kentucky Attorney General’s Office and the Cabinet for Health and Family Services’ Department of Community Based Services under the terms of which the Medicaid Fraud Unit received statutorily protected records — on condition of strict confidentiality — compiled by CHFS in investigating criminal abuse or neglect cases to discharge the attorney general’s duty to prosecute Medicaid fraud.
While it is true that “nothing contained [in KRS 61.878(5)] entitles one governmental agency to demand from another information which does not serve a governmental need,” where — as here — the government need is strongly substantiated by the auditor (not to mention the General Assembly), Beshear is on shaky legal ground.
Ideally, our lawmakers would exercise far less haste and far greater care in languaging new laws. Here, their “intent” may have been “clear.” The bill’s language was not.
But abused and neglected children should not be further victimized because of legislative ineptitude or gubernatorial stubbornness.
We’ve witnessed the former in multiple instances and the latter in former Gov. Steve Beshear’s past endorsement of CHFS secrecy at the expense of vulnerable Kentuckians. We are witnessing it again.
Until the law can be amended to everyone’s satisfaction, there is a temporary solution in the form of a carefully drafted memorandum of agreement for CHFS sharing of iTWIST with the Auditor’s ombudsman under terms of strict confidentiality and only for the legitimate governmental purpose stipulated.
Can these warring constitutional officers set aside their political wrangling for the public good?
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