Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in denying Aldean Henderson's February 3 and March 24, 1999, requests for copies of his pre-parole progress reports prepared by the Department in 1990 and 1995, and furnished to the Parole Board. For the reasons that follow, we conclude that although its response was not issued in a timely fashion, the Department properly denied Mr. Henderson's request.
In its April 8, 1999, response, 1 the Department of Corrections advised Mr. Henderson that the pre-parole progress reports to which he had requested access, "are exempt from inspection under the provisions of KRS 61.878(1)(j), as they are preliminary in nature and express opinions and make recommendations. " In a supplemental response submitted to this office after Mr. Henderson initiated his appeal, Department of Corrections' staff attorney, Tamela Biggs, explained that the reports contain the opinions of caseworkers and are "advisory in character." Citing OAG 92-15, in which this office affirmed the Department's denial of a request for a pre-parole progress report on the basis of KRS 61.878(1)(j), she acknowledged that the Department "could have stated that the opinion expressed was that of the officer (and . . . other staff members), that the document was preliminary to the decision reached by the Board (and could not be released unless incorporated into the Board's final decision) , and that preliminary recommendations may be contained therein regarding the inmate's future release and/or housing, etc." Ms. Biggs also asserted that the reports qualified for exclusion under KRS 61.878(1)(l) and KRS 439.510, a confidentiality provision aimed at protecting from disclosure "all information obtained in the discharge of official duty by an probation or parole officer. . . ." We affirm the Department of Corrections' denial of Mr. Henderson's request.
In OAG 92-125, this office addressed the same issue with which we are presented today. There we concluded that an inmate's pre-parole progress 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)[(j)].
OAG 92-125, p. 2. That decision is directly controlling.
We have examined the documents containing the Parole Board's final decision relative to Mr. Henderson's parole, and have confirmed that the preparole progress reports identified in his request were neither physically attached to, nor incorporated by reference in, those final decisions. Accordingly, the reports did not forfeit their preliminary characterization but remained exempt under KRS 61.878(1)(j).
We also note that some pre-parole progress reports are prepared by institutional parole officers, and therefore qualify for exclusion under KRS 439.150, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 2 KRS 439.510 mandates confidentiality for "all information obtained in the discharge of official duty by any probation or parole officer. . . ." This provision, Kentucky's Supreme Court has observed, is intended "to protect the sources of confidential information . . .," so that valid opinions concerning the general character of an inmate may be obtained. Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987); see also OAG 90-32 (special report prepared by parole officer and tendered to Parole Board is excluded from inspection by KRS 439.510). Although it is not altogether clear, in the instant appeal, that Mr. Henderson's pre-parole progress report was prepared by an institutional parole officer, the report might also qualify for exclusion under KRS 61.878(1)(l) and KRS 439.510 if so prepared. Finally, such a report might fall within the parameters of KRS 197.025(1), also incorporated into the Open Records Act by KRS 61.878(1)(l), if the Commissioner of the Department of Corrections, or his designee, determine that disclosure of the report to Mr. Henderson "constitute[s] a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person."
In closing, we note that each of the Department's responses to Mr. Henderson's requests were delinquent. Although KRS 197.025(7) extends the standard three day deadline for agency response to five days, the Department's response to Mr. Henderson's February 3 request was dated March 4 and apparently mailed on March 22, well over one and one-half months after its receipt. The Department's response to his March 24 request was dated April 8, some eleven business days after the request was mailed. The Department offers no explanation for this delay in the issuance of its responses. We remind the Department that "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. We urge the Department to address these problems to insure that future responses are issued in a timely fashion.
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.
Footnotes
Footnotes
1 In response to this request, as well as his earlier request, the Department asserted that Mr. Henderson must be more exact in describing the records which he wished to inspect. Although we believe that in both instances Mr. Henderson's request was sufficiently specific, we see no need for additional comment inasmuch as the Department ultimately identified the correct records and advanced a legally supportable basis for denying him access to those records.
2 KRS 61.878(1)(l) permits public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.