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 is before the Attorney General on appeal from the Western Kentucky Correctional Complex's (WKCC) denial of James Earl Flynt's open records requests for copies of certain pages from his Presentence/ Postsentence Investigation Report (PSI).
On August 6, 1998, Mr. Flynt requested copies of pages 4, 5, 6, and 7 of his PSI report. On the same day, Ms. Ellen Cockerham, Offender Records Officer, WKCC, denied his request, stating:
Request denied due to money authorization form not having been received. Per KRS 61.874(1), the custodian may require prepayment of copies. You are serving on 97CR647 and 97CR068. Which one did you want for PSI. Please submit new request with CPO and PSI.
On August 10, 1998, Mr. Flynt resubmitted his request, asking for copies of pages 4, 5, 6, 7, and 8 of his PSI report from case 97CR068. Along with his request he submitted an Inmate Money Transfer Authorization as prepayment for the requested copies.
By letter dated August 11, 1998, Ms. Cockerham denied his request. In her letter, Ms. Cockerham stated:
Presentence/ Postsentence Investigation Reports are privileged by statute and exempt under KRS61.878(1)(l). 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 report 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. 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.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the Department of Corrections and enclosed a copy of Mr. Flynt'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, Ms. Biggs, in part, stated:
Since the inmate did not waive his PSI prior to sentencing, he is not entitled to receive a copy per CPP 28-01-09 and the holding of Commonwealth v. Bush. (Exhibit 2) For your convenience, I have also attached the relevant pages from the Final Judgment - Sentence of Imprisonment (Exhibits 3 & 4)
We are asked to determine whether WKCC's responses denying Mr. Flynt's requests were proper. For the reasons that follow, we conclude that the agency's denials were proper and consistent with the Open Records Act and prior decisions of this office.
The WKCC denied Mr. Flynt's first request for failing to submit a money authorization form, along with his request, as prepayment for the requested records. This office has long recognized that an inmate is entitled to a copy of a nonexempt public record only after he pays for that copy pursuant to KRS 61.874. OAG 91-210; 92-ORD-1363; 94-ORD-90; 95-ORD-90. Accordingly, we conclude that the WKCC properly denied this request.
We next address the WKCC's denial of Mr. Flynt's request for his PSI report. 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). In Bush , the Supreme Court addressed the question whether a criminal defendant is entitled to a copy of his or her PSI at the pre-sentencing and post-conviction stages. There the court held that KRS 532.050(4) [now codified as KRS 532.050(5)], which required a court to "advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation . . .," does not require the 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 Act, KRS 61.870, except for the fact that it is excluded from public inspection by virtue of KRS 61.878(1)[l] which exempt any records made confidential by the General Assembly.
KRS 439.510, in tandem with KRS 61.878(1)(l), makes the PSI confidential and exempt from disclosure under the Open Records Act. Accordingly, we conclude the WKCC properly denied Mr. Flynt'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 copy of the Final Judgment - Sentence of Imprisonment, provided this office by the Department, indicates that Mr. Flynt 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.