Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Parole Board violated the Open Records Act in responding to Harry M. Chapman's open records request in which he requested, in relevant part:
I want the procedures, including what paperwork must be filled out by the Department, what processes have to be done, and specifically at what point the warden at an institution must release the inmate on parole.
In short, [what] constitutes the ORDER named in KRS 439.410 requiring the warden to release the inmate on parole.
I want the specific procedural rule or policy which directs the warden to release an inmate on parole once the Parole Certificate has been issued.
Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, on behalf of the Parole Board, responded to Mr. Chapman's request, stating:
I have discussed your request with Parole Board staff and have been told that the Board sends out a Parole Certificate once parole is granted and the inmate has been released. A Notice of Discharge is sent by Offender Records to the institution to notify the appropriate personnel. Northpoint Training Center has in place 25-03-01 Inmate Release Procedures which sets forth staff requirements prior to an inmate's release from the facility. A copy of said policy may be reviewed or obtained at Northpoint. You may also wish to discuss your questions regarding "the procedures . . . what processes have to be done . . ." with the institutional Parole officer, Mr. Jim Carter.
In his letter of appeal, Mr. Chapman stated that the only policy to which he was directed, 25-03-01 Inmate Release Procedures, did not give any of the answers he was seeking. Thus, he argues that the agency failed to comply with his request.
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. Chapman's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Biggs provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs explained, in pertinent part:
Upon receipt of Mr. Chapman's initial request, I almost denied same as a request for information rather than documents, as Mr. Chapman was requesting "what paperwork had to be filled out . . . what processes have to be done . . . at what point the warden . . . must release the inmate on parole. " Instead, I offered to send copies of the Parole Board's Administrative Regulations which set forth everything from the criteria for eligibility to granting of final discharge from parole. Mr. Chapman responded that he wanted a specific rule, policy or procedure for the warden's release of a prisoner once parole has been recommended. I spoke to Parole Board staff and we referred Mr. Chapman to Northpoint Training Center's ("Northpoint") policy regarding Inmate Release Procedures. I had now offered to provide copies of all the regulations and policies which I believed were relevant to his "request." Mr. Chapman has responded that I, on behalf of the Board, have not answered his questions.
501 KAR 1:030, 1:040 and 1:050 are the Administrative Regulations which govern the granting or rescinding of parole. KRS 439.410 states that an order from the Board shall be sufficient warrant and authority for the release of a prisoner on parole. Pursuant to KRS 439.340(2), an inmate "shall be placed on parole only when arrangements have been made for his proper employment or for his maintenance and care, and when the board believes he is able and willing to fulfill the obligations of a law abiding citizen." Mr. Chapman was seen by the Board and recommended for parole. Subsequent to said hearing, the Board received additional information which caused it to reconsider and rescind its previous recommendation. Normally, the Parole Certificate may be considered the "order" referred to in KRS 439.410; however, this may be rescinded by the Board prior to the release of the inmate due to the receipt of new information, the inmate receiving a write-up, receipt of notice of detainer from another jurisdiction, etc.
. . .
The action taken to rescind the previous recommendation was permissible as 501 KAR 1:030 Section 5(2) states: "The board may rescind a parole recommendation anytime prior to the release of an inmate on parole. "
We are asked to determine whether the actions of the Parole Board were proper under the Open Records Act. For the reasons which follow, we conclude that the Board's responses were consistent with the requirements of the Act.
We begin by noting that Mr. Chapman's request, in large part, was for information rather than a request to inspect specific records. This office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. See, for example, OAG 89-77. Our position is premised on the notion that open records provisions address only the inspection of records and do not require public agencies to provide or compile specific information to conform to the parameters of a given request. In OAG 87-84, we observed:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
Thus, the Board was not obligated, under the Open Records Act, to provide answers to Mr. Chapman's requests for information such as "what paperwork had to be filled out . . . what processes have to be done . . . at what point the warden . . . must release the inmate on parole. " Nevertheless, the Board responded to Mr. Chapman's request by attempting to answer his questions and referring him to and offering to provide him copies of the appropriate statutory and regulatory provisions relative to his questions rather than denying his request as one for information rather than records. Accordingly, it is the decision of this office that the Board's responses to Mr. Chapman's requests were proper and consistent with the requirements of the Open Records Act.
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.