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 Kentucky State Penitentiary's (KSP) denial of Donald E. Buckman's two open records requests for "All prewritten reports to the Parole Board from Duke Petit who was my case worker at the time and or any other parties regarding my parole hearing June of 1996."
On December 29, 1998, L. J. Conger, Records, KSP, and on January 12, 1999, Nancy Doom, Records, KSP, responded to Mr. Buckman's requests, respectively, each advising him that his request was denied under authority of KRS 61.878(1) (i), (j) and (l).
In his letter of appeal, Mr. Buckman cites KRS 61.878(3) and argues he is entitled to all written documentation concerning him.
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. Buckman's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Office of General Counsel with the Department, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs explained and amplified the KSP's responses, stating:
I have reviewed the referenced appeal and the original requests and responses. It is the opinion of this office that the requests were responded to in an appropriate manner.
Institutional parole officers ("IPO") and case workers ("CW") routinely prepare pre-parole progress reports for the Parole Board. These reports contain: (1) factual information from the Presentence Investigation Report ("PSI") and institutional records; (2) opinions and recommendations of the IPO or CW; (3) and medical and/or psychological progress. The Attorney General relied upon the exemptions set forth in KRS 61.878(1)(i) and (j) [then (h)] to withhold a preparole progress report in OAG 92-125. (See Exhibit 1) To require the release of the preparole progress report may result in the release of information in the PSI which would be in violation of KRS 439.510 and the holding in Commonwealth v. Bush . Release of these records could also result in a chilling effect on the information provided to the Parole Board, thereby hampering their ability to perform their statutory function. Depending upon the extent and nature of the information contained in the pre-parole report, there may be a question of the impact such release would have on the security of the institution or staff, thereby calling into play KRS 197.025(1).
Mr. Buckman's apparent reliance on KRS 61.878(3) is misplaced. The section provides, in part: "No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee , including university employees, an applicant for employment, or an eligible on a register . . " As an inmate, he does not fulfill the requirements of this section, which permits the referenced individuals to receive copies of even preliminary documentation, even if it pertains to them. KRS 61.884 and the recently enacted KRS 197.025(2) permit an inmate to obtain records which pertain to them; however, said release is made "subject to the provisions of KRS 61.878."
We conclude the Kentucky State Penitentiary properly relied on KRS 61.878(1)(j) and OAG 92-125 in denying Mr. Buckman's requests for a copy of all pre-parole progress reports submitted to the Parole Board by his caseworker.
KRS 61.878(1)(j) authorizes an agency to withhold from disclosure:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In OAG 92-125, this office held that the KSP did not violate the Open Records Act in denying an inmate's request for his most recent pre-parole progress report under authority of what is now KRS 61.878(1)(j). In that opinion, we stated:
The report contains the caseworker's opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance. It may also include an inmate's formal psychological evaluation. Clearly, the pre-parole progress report is a preliminary document containing opinions, observations, and recommendations. It is purely advisory and is one of several documents submitted to the Parole Board for its consideration. Unless it is incorporated into the Parole Board's final decision, it is exempt from public inspection pursuant to KRS 61.878(1)[i].
We believe OAG 92-125, and the authorities cited therein, is controlling. A copy of OAG 92-125 is attached hereto, and incorporated by reference. The KSP did not violate the Open Records Act in denying Mr. Buckman's request for a copy of all his pre-parole progress reports submitted to the Parole Board by his caseworker.
Addressing Mr. Buckman's argument that KRS 61.878(3) entitles him to all written documentation concerning him, we conclude that statute does not apply to Mr. Buckman as that statute pertains only to the right of public agency employees, applicants for public employment, or an eligible on a register for public employment, to receive copies of preliminary documentation, if it pertains to them. As an inmate in the KSP, Mr. Buckman does not fall within the class to which this statute applies.
As noted by Ms. Biggs in her response to the letter of appeal, KRS 61.884 and KRS 197.025(2) permit an inmate to obtain records which pertain to him. However, release of these records to an inmate is subject to the provisions of KRS 61.878.
KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
Accordingly, as we concluded above, the KSP properly relied on KRS 61.878(1)(j) and OAG 92-125 in denying Mr. Buckman's requests.
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.