Request By:
Ms. Elizabeth Stuart
Offender Records Specialist
Kentucky State Penitentiary
Box 128
Eddyville, Kentucky 42038-0128
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Bobby Mayes, an inmate at Kentucky State Penitentiary, has appealed to the Attorney General, pursuant to KRS 61.880(2), your response to his June 16, 1992, request for a copy of his most recent pre-parole progress report. You denied Mr. Mayes' request in a letter dated June 18, 1992. Relying on KRS 61.878(1)(h), you explained that the report is a "preliminary form and may contain opinions or preliminary recommendations. "
Mr. Mayes asks that we review your denial of his request to determine if your actions violated the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Mayes' request.
OPINION OF THE ATTORNEY GENERAL
Among the records which may be excluded from public inspection, in the absence of a court order authorizing inspection, are those described as, "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" KRS 61.878(1)(h) (as amended, KRS 61.878(1)(i), effective July 14, 1992). This provision has been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within a public agency. OAG 81-285; OAG 85-96; OAG 87-24; OAG 91-97. Those reports and memoranda that are strictly advisory, and that are submitted for review and consideration by the agency relative to a final decision, but which are not incorporated into the final decision, are exempt from public inspection.
In OAG 87-24, we recognized that a letter setting forth an opinion as to the merits of paroling an individual was not subject to public inspection, unless it was incorporated into, or made a part of, the Parole Board's final decision on the matter. We upheld the agency's invocation of KRS 61.878(1)(h), noting that the letter was a preliminary document in which personal opinions were expressed and recommendations were made.
We have not had occasion to address the specific issue raised in this appeal, that is, whether a pre-parole progress report may be withheld under authority of KRS 61.878(1)(h). In our view, however, the logic of OAG 87-24 may be extended to the present appeal. In a conversation with the undersigned on July 14, 1992, you explained that the report is prepared by the inmate's caseworker, and that it represents a summary of his progress. The report contains the caseworker's opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance. It may also include an inmate's formal psychological evaluation. Clearly, the pre-parole progress report is a preliminary document containing opinions, observations, and recommendations. It is purely advisory and is one of several documents submitted to the Parole Board for its consideration. Unless it is incorporated into the Parole Board's final decision, it is exempt from public inspection pursuant to KRS 61.878(1)(h). We therefore conclude that you properly denied Mr. Mayes' request.
As required by statute, a copies of this opinion will be mailed to Mr. Mayes and Kentucky State Penitentiary. Mr. Mayes may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.