Request By:
Ms. Glenda Gambrel
Offender Records Officer
Bell County Forestry Camp
Pineville, Kentucky 40977
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Tommy Basham, an inmate at the Bell County Forestry Camp, has appealed to the Attorney General, pursuant to KRS 61.880 (2), your denial of his February 6, 1992, request for a copy of his presentence/ postsentence investigation report (PSI). You denied Mr. Basham's request in a memorandum dated February 7, 1992, relying on KRS 61.878 (1) (j) and KRS 532.050 (4). You indicated that Mr. Basham was advised of the factual contents and conclusions contained in his PSI at the time of final sentencing, and was afforded an opportunity to refute the contents.
In a conversation with the undersigned which took place on March 12, 1992, you stated that the judgment entered in the criminal action against Mr. Basham recited that he was advised of the factual contents and conclusions in his PSI at the time of sentencing. You have since provided this Office with a copy of the judgment, which confirms your earlier statements.
In his letter of appeal to this Office, Mr. Basham argues that he was never given an opportunity to examine his PSI. Continuing, he asserts:
[N]or did I get any opportunity to refute factual contents, due to the extremely ineffective counsel that handled my so called defense. This is only one of numerous ways in which my counsel was grossly ineffective.
He asks that this Office review your denial of his request to determine if you acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Basham's request.
OPINION OF THE ATTORNEY GENERAL
Among the records excluded from the application of the Open Records Act are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. " KRS 61.878(1) (j). KRS 439.510 makes confidential:
All information obtained in the discharge of official duty by any probation or parole official . . . . such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet . . . unless otherwise ordered by such court, board or cabinet.
The Kentucky Supreme Court has interpreted this provision to extend to the
PSI. Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987).
In Bush, supra, the Supreme Court addressed the question whether a criminal defendant is entitled to a copy of his or her PSI at the pre-sentence and post-conviction stages. There the court held that KRS 532.050(4), which requires a court to "advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation . . . ," does not require that court to release a copy of the report. Directly addressing the question of whether the PSI falls within the purview of the Open Records Act, the Supreme Court observed:
The PSI would be a public record subject to the Open Records law, KRS 61.870, except for the fact that it is excluded from public inspection by virtue of KRS 61.878 (1) (j) which exempt any records made confidential by the General Assembly.
Bush, supra at 944. The court concluded that in order to satisfy the "fair opportunity" requirements of KRS 532.050 (4), a defendant who waived his PSI at sentencing, like Mr. Bush, "is entitled to being advised by the prison official who has custody of the PSI of the factual contents and conclusions therein." Bush, supra at 944, (Emphasis in original). The Corrections Cabinet policy, to which Mr. Basham objects, merely implements the Court's decision in Bush , which, in turn, interprets the relevant statutes. OAG 91-194.
You indicate that the judgment entered in the criminal action against Mr. Basham states that he was advised of the factual contents and conclusions in his PSI at the time of sentencing. A copy of that judgment is attached. We must assume that this notation accurately reflects the course of Mr. Basham's sentencing proceedings.
It should be noted that KRS 532.050 (4) was amended in 1990, and now precludes waiver of the presentence investigation report. In addition, it requires a court to provide defendant's counsel with a copy of the report, excluding the sources of confidential information. These amendments should eliminate any doubt as to whether the requirements of KRS 532.050 have been satisfied.
As required by statute, a copy of this opinion will be sent to Mr. Tommy Basham. He may challenge it in the appropriate circuit court pursuant to KRS 61.880 (5).