Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Green River Correctional Complex's (GRCC) denial of Hung Van Nguyen's open records request for a "Copy of all arrest records within my files in your office that is on my P.S.I."
Teresa Shanklin, Offender Records Supervisor, GRCC, responded to Mr. Nguyen's request, advising him, in pertinent part, that:
Presentence/ Postsentence Investigation Reports (PSI) are privileged by statute and exempt from disclosure under KRS 61.878(1)(j). However, according to Corrections Policies and Procedures 28-01-09, the factual contents and conclusions contained in a waived PSI may be released, per Commonwealth v. Donnie Ray Bush, 740 S.W.2d 943 (Ky. 1987). In addition, the completion of the presentence investigation may be delayed until after sentencing upon written request of the defendant. KRS
532.050(1).
Your file has been reviewed and it has been found that:
. . .
You did not waive your PSI, which was completed upon sentencing. Therefore you were given an opportunity to refute factual contents at the time of sentencing. Pursuant to CPP 28-01-09, Section V, your request may be made for a waived PSI only. Therefore, your request is denied.
(Emphasis in the original.)
In his letter of appeal, Mr. Nguyen indicated that he did not seek a copy of his PSI, but just parts of his PSI, that is, copies of all arrest records within his files that was on his PSI.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Department of Corrections and enclosed a copy of Mr. Nguyen's letter. As authorized by KRS 61.880 (2) and 40 KAR 1:030, Section 2, Tamela Biggs, Office of General Counsel, provided this office with a response to the issues raised in the appeal. In her response, explained and amplified Ms. Shanklin's response, stating:
In light of the wording of the request, the holding in Commonwealth v. Bush, 740 S.W.2d 943 (Ky. 1987) and the fact that inmate Nguyen did not waive his PSI at sentencing, it is the Department's position that the response given by Ms. Shanklin was correct.
Inmate Nguyen requested "copy of all arrest records within my files . . . that is on my PSI. This request is somewhat vague and overly broad, as he asks for "all arrest records within my files." Said request would include arrest records which are exempt from disclosure by federal law or regulation (i.e., the FBI rap sheet, precluded from disclosure by 28 U.S.C. § 534). However, if the preceding clause is coupled with the remainder of the sentence "that is on my PSI", it could be construed as a request for the PSI. In light of this qualifying language, Ms. Shanklin reasonably believed that is what the inmate was requesting.
The rationale in Commonwealth v. Bush stated that a "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) [now codified as KRS 61.878(1)(l)] which exempts any records made confidential by the General Assembly. The PSI is also made confidential by KRS 439.510 . . ." (id at 944) The Court went on to state that a "fair opportunity" should be given Bush, who had waived preparation of the PSI at the time of his final sentencing, to be advised by prison officials of the factual contents and conclusions. KRS 532.050(5) does not alter the Department's position, as this subsection requires a court to advise a defendant or his counsel of the factual contents and conclusions of a PSI and provide a reasonable time to controvert same. It also states that a copy shall be provided to defendant's counsel; however, this is all done before imposing sentence . Pursuant to the holding in Bush and Departmental policies and procedures, an inmate who waived or requested a delay in the completion of a PSI until after sentencing is advised of the factual contents and conclusions. Inmate Nguyen did not waive his PSI; therefore, he is not entitled to a copy.
(Emphasis added.)
We are asked to determine whether the GRCC properly denied Mr. Nguyen's request. For the reasons which follow, we conclude that the agency's denial was proper and consistent with the Open Records Act.
Among the records excluded from the application of the Open Records Act are "public 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)(l). 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 . . . .
Because the PSI Report is prepared by a probation officer, pursuant to KRS 532.050(2), the Kentucky Supreme Court has interpreted this provision to extend to the PSI. Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987).
Although the Department cited KRS 61.878(1)(j) as the exception that authorized the nondisclosure of the requested records, it is clear from the statutory language quoted by the Department that this was a miscite. The appropriate exception is KRS 61.878(1)(l), which is the exception that prohibits the disclosure of public records made confidential by the General Assembly.
Thus, KRS 439.510, in tandem with KRS 61.878(1)(l), makes the PSI confidential and exempt from disclosure under the Open Records Act. Mr. Nguyen stated in his letter of appeal that he did not want a copy of his PSI, just parts of his PSI. However, the copies of arrest records in the PSI file would still be part and parcel of the information in the PSI Report prepared by the probation official, which is required to be kept confidential under KRS 439.510 and KRS 61.878(1)(l). Accordingly, we conclude the Department properly denied Mr. Nguyen's request.
Moreover, KRS 532.050(5) provides:
Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant's counsel a copy of the presentence investigation report. It shall not be necessary to disclose the sources of confidential information.
The Department indicated that Mr. Nguyen was advised of the factual contents and conclusions contained in his PSI at the time of final sentencing and thus was afforded a "fair opportunity" to refute its contents. This would satisfy the requirements of KRS 532.050(5) and the Supreme Court's holding in Bush.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.