TO: Sherry Currens, Executive Director, Kentucky Domestic Violence Association

FROM: Mary Savage, Legal Counsel, Kentucky Domestic Violence Association

DATE: July19, 2010

SUBJ: CONFIDENTIALITY OF DECEASED CLIENT RECORDS

Cc: Kentucky Domestic Violence Association Board of Directors

This memo is written in reply to your inquiry regarding whether there are legal requirements to maintain confidentiality of client records once the client is deceased. The answer is that confidentiality should be maintained absent appropriate documentation from the decedent’s administrator/executor or a court order.

There is no Kentucky statute which specifically addresses this question. KRS 209A.070 states:

“All records, requests for services, and reports that contain information that identifies a

current or former client of a domestic violence program are confidential and shall not be

disclosed by any person except as provided by law. The cabinet shall have access to client records, requests for services, and reports relating to any domestic violence program for the limited purpose of monitoring the program.”

There is no appellate case law in Kentucky which interprets this statute in regards to records of a deceased client. However, in an opinion of the Kentucky Attorney General (herinafter AG), a similar, though not identical, question was addressed and analyzed.

In 95-ORD-7, the AG was called upon to render an opinion re an open records request filed by the Lexington Herald Leader ( the Herald) newspaper with the Lexington-Fayette Urban County Government (LFUCG). The Herald wanted all records in the possession of LFUCG regarding two teenage (minor) boys who had committed suicide in a public park in Lexington. The Herald argued that the juvenile code statute which held such records to be confidential (KRS 610.320) “expired” at the death of the juvenile. LFUCG argued that, as the statute which required confidentiality was silent as to that specific point, that neither the LFUCG, nor the AG, nor the courts, can change the plain meaning of the statute in question. Thus, a very similar question to that of deceased domestic violence shelter client records was at issue in this case.

KRS 61.878(1)(l), part of the Open Records law, 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.”

The AG concluded that, as the juvenile code statute did not expressly, or implicitly, limit the confidentiality provisions to living juveniles, it would be improper to supply “omitted” provisions. That is the purview of the Legislature. The AG relied on Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1961) to support this position, in which the Kentucky Supreme Court held that;

“Where a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision.” Id. At 251

The AG opinion went on to cite an earlier opinion wherein they had upheld the denial of a deceased University of Kentucky student’s academic records, which were similarly protected by state statues in terms of all students, once again no distinction being made in the relevant statute between living or deceased students.

In a more recent opinion, the AG held that, under that part of the child abuse and neglect statutes which mandated confidentiality of reports of suspected abuse (KRS 620.050(5)), records of child fatalities and near fatalities would be exempt from disclosure under the Open Records laws. The AG states,

“The provision is intended to protect families affected by allegations of child abuse, neglect, or dependency, and in particular, the affected children.” 07-ORD-145 (2007)

Please note, opinions of the AG are not court opinions and are not biding upon any court. However, they are given “great weight” as to their reasoning and opinions by the Kentucky Court of Appeals.

Based on the above opinions of the AG, it would appear that a similar analysis can be made of KRS209A.070. Programs are required to maintain strict confidentiality of client records. The legislature did not address the issue of records of deceased clients. It would be improper for any other body, be it the AG or a court, to insert any provision limiting the requirements of the statute. Therefore, the statutorily mandated confidentiality remains in place, regardless of the state of being of the client.

Additionally, KRE 506, the counselor-client privilege, states that the privilege can be asserted by a deceased client’s representative (executor or administrator). So that further bolsters the idea that the privilege survives the death of the client.

Therefore, the recommended course of action for programs would be to maintain confidentiality of deceased client records until and unless a duly court appointed administrator (when there is no will) or executor (when there is a will) presents a court order of appointment to the program along with a request for the records. As such orders of appointment vary greatly in form and content, should one be presented, it is recommended that the program director contact an attorney (either Kentucky Domestic Violence Association’s Legal Counsel or any other qualified attorney) to determine the validity/legality of such document, before releasing any records. In some instances, it may be necessary to make a motion before a court to try to prevent the release. For example, if the deceased client’s abuser is the person requesting the records. In the event that a request is made under the auspices of the Open Records law, again, contact an attorney.