Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
IN RE: Charles Burton/Department of Corrections
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Department of Corrections' denial of Mr. Charles Burton's November 17, 1992, request to inspect a record in the Department's custody. That record is identified as "the letter from Mr. G. P. Doan which was submitted by Mr. John L. Smith, Attorney, as a part of [Mr. Burton's] parole package. . . ." Mr. Burton is an inmate at the Eastern Kentucky Correctional Complex, and his request was made under the Kentucky Open Records Act.
In a letter dated November 24, 1992, Ms. Karen DeFew Cronen, Administrator of Offender Records for the Department of Corrections, responded to Mr. Burton's request. Relying on KRS 61.878(1)(g), now codified and hereinafter referred to as KRS 61.878(1)(h), she denied his request, explaining that "[c]orrespondences [sic] received, either in favor of or against parole, are exempt from inspection . . . as they may express opinions and make recommendations. "
In his letter of appeal to this Office, Mr. Burton states that the requested record was initially sent to him. He explains that the letter was then presented to the parole board. It was also presented to Mr. Jerry Wilson, Program Director, Department of Adult Institutions, as part of an application for a study release program. Mr. Burton did not, however, retain a copy. He expresses the belief that release of the record does not implicate any privacy concerns, nor does it contain any recommendations, and that therefore the record should be released. He asks that we issue a decision consistent with this view.
We are asked to determine if the Department of Corrections properly relied on KRS 61.878(1)(h) in denying Mr. Burton's request. For the reasons set forth below, we conclude that the Department's actions were consistent with the Open Records Law.
This Office has previously recognized 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 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 (copy enclosed). In that opinion, we also stated that although KRS 61.878(1)(h) excludes from disclosure "correspondence with private individuals," that exemption did not extend to correspondence from a public official such as a judge.
We conclude that on the facts presented in this appeal, KRS 61.878(1)(h) and (i) authorize nondisclosure of the requested record. Mr. Doan, who prepared the letter which is the subject of this appeal, is a private individual, apparently Mr. Burton's former high school principal, and not a public official. Accordingly, his letter can properly be characterized as correspondence with a private individual, and is exempt from public inspection under KRS 61.878(1)(h). In addition, the letter is a preliminary document containing opinions and recommendations, within the meaning of KRS 61.878(1)(i), and is not subject to inspection unless incorporated into or made a part of the Parole Board's or the Department of Adult Institutions' final action relative to eligibility for parole or the study release program. OAG 87-24, at p. 4.
Mr. Burton indicates that the disputed document was originally sent to him. By this we assume he means that Mr. Doan directed the letter to him, and that he then turned it over to his attorney, Mr. Smith. We do not believe that this fact, standing alone, removes the document from the principles generally applicable to public records under the Open Records Law. The letter clearly falls within the definition of a "public record" set forth at KRS 61.870(2), insofar as it is "in the possession of or retained by" the Department of Corrections. Mr. Burton's right to inspect the Department's record is thus conditioned on compliance with the Open Records Law. The Department may, and properly did, elect to withhold the record under authority of KRS 61.878(1)(h). We believe that the letter is also exempt from inspection under KRS 61.878(1)(i). Nothing in this decision should be construed to prevent Mr. Burton from obtaining a copy of the letter from Mr. Smith or Mr. Doan.
Mr. Burton may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.