Request By:
Ms. Karen S. DeFew, Administrator
Offender Records
Office of Administrative Services
Corrections Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Jon L. Fleischaker has appealed to the Attorney General pursuant to KRS 61.880 your denial of the request by Andrew Wolfson, staff writer for the Courier-Journal, to examine and copy various documents in the possession of the Corrections Cabinet or Parole Board concerning former inmate Charles W. Burton.
Andrew Wolfson requested the opportunity to examine and copy the following documents by letters dated August 16, 1990, and addressed to John C. Runda, Chairman of the Kentucky Parole Board and Shirley Sharpe, Administrator of Offender Records for the Corrections Cabinet:
Any and all records or documents reflecting why -- pursuant to the Parole Board's December 1988 regulations -- Burton was considered this year for early parole . . . .
I would also like to inspect and/or receive copies of any and all letters or other documents from the U.S. Attorney for the Eastern District of Kentucky, from the U.S. grand jury for the Eastern District of Kentucky, or from the Federal Bureau of Investigation, requesting documents concerning Charles W. Burton compiled by the Parole Board or the Corrections Cabinet.
Your letter of partial denial dated August 27, 1990, acknowledged receipt of this request on August 22, 1990. Your letter provided the following explanation in denying the documents in question:
Correspondence received, either in favor of or against parole, are exempt from inspection under KRS 61.878(1)(h) as they express opinions and makes (sic) recommendations and therefore, given out only upon an order from a court of competent jurisdiction. Therefore, we are unable to furnish you with copies of same.
Your request for letters or other documents from the U.S. Attorney for the Eastern District of Kentucky, from the U.S. Grand Jury for the Eastern District of Kentucky, or from the Federal Bureau of Investigation requesting documents concerning Charles W. Burton is being denied. This information is part of an ongoing criminal investigation and is exempt from inspection under KRS 61.878(1)(f).
Jon L. Fleischaker, an attorney with Wyatt, Tarrant & Combs, filed an appeal of this denial on behalf of Andrew Wolfson and the Courier-Journal by letter dated September 13, 1990, and received in this office on September 14, 1990. Mr. Fleischaker argues that KRS 61.878(1)(h) [which he inadvertently misquotes in his letter] is inapplicable in the instant situation stating in part that the documents involve "final recommendations" not "preliminary recommendations" and that the correspondence sought does not concern private individuals, but elected public officials, specifically the sentencing judge and the prosecuting attorney, who acted within their official capacities in generating and sending the documents now at issue.
Mr. Fleischaker also argues that KRS 61.878(1)(f) is irrelevant in the instant situation because neither the Corrections Cabinet nor the Parole Board is in the process of detecting or investigating statutory or regulatory violations. Mr. Fleischaker states that the documents requested relate directly to an investigation being conducted by the federal government and there is nothing to indicate that disclosure of this information would harm either the Corrections Cabinet or the Parole Board "by revealing the identity of informants not otherwise known" or "by prematurely releasing information to be used in a law enforcement action or administrative adjudication of either the Parole Board or the Corrections Cabinet." Mr. Fleischaker has requested a written opinion from this Office that the Corrections Cabinet has not acted consistent with the provisions of KRS 61.870 to 61.884.
The undersigned Assistant Attorney General talked with you and other employees of the Corrections Cabinet concerning this appeal on several occasions. The undersigned Assistant Attorney General also inspected some of the documents in question pursuant to KRS 61.880(2).
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this office that the documents for which you have denied inspection are exempt from public inspection pursuant to KRS 61.878(1) (f) and (h) and that the Corrections Cabinet has acted consistently with the provisions of KRS 61.870 to 61.884. The denial of the request to inspect these documents was properly based upon KRS 61.878(1)(f) and (h) which provide as follows:
(f) Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
The issue raised in this Open Records Appeal concerning inspection of documents written by the sentencing judge and prosecuting attorney to the Parole Board in which opinions were expressed concerning the parole of Charles W. Burton is controlled by a previous opinion of this Office in which it was stated as follows:
[I]t is the opinion of the Attorney General that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether the Board should or should not grant a parole is a preliminary document expressing personal opinions and recommendations and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter.
[OAG 87-24, p. 4. ] [Copy of opinion enclosed. ]
Mr. Fleischaker's argument that these documents are "final recommendations" not "preliminary recommendations" and therefore are not exempt from inspection pursuant to KRS 61.878(1)(h) is disingenuous. Most recommendations to the Parole Board concerning the paroling of an inmate are probably "final" in the sense that the person making the recommendation does not intend to make a subsequent recommendation. However, the word "preliminary" as used in KRS 61.878(1)(h) obviously refers to recommendations made by a person prior to a final decision or action being made by a state agency. It does not matter whether the recommendation is the first, second or last recommendation if the state agency has not yet taken final action.
It is the opinion of the Attorney General that a letter or document written by an elected public official such as a sentencing judge or prosecuting attorney which contains an opinion as to whether the Parole Board should or should not grant a parole hearing is exempt from inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In the instant case, the documents from elected public officials contain opinions which were not incorporated into or made a part of the Parole Board's final decision on the matter and therefore were properly denied by the Corrections Cabinet.
The issue raised in this Open Records Appeal concerning inspection of documents from the U.S. Attorney for the Eastern District of Kentucky, the U.S. Grand Jury for the Eastern District of Kentucky, or the Federal Bureau of Investigation is also controlled by prior opinions of this Office in which it has been held that documents are exempt form inspection pursuant to KRS 61.878(1)(f) even though the agency in possession of the documents is not the agency involved in a prospective law enforcement action or administrative adjudication. See OAG 85-118 and 83-39. [Copies enclosed. ]
Premature release of information contained in these documents would harm the federal agency involved in the investigation and would reveal the identity of potential informants not otherwise known and therefore were properly denied by the Corrections Cabinet pursuant to KRS 61.878(1)(f).
Andrew Wolfson or the Courier-Journal may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public records sought for inspection are maintained pursuant to KRS 61.880(5).