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 Lee Adjustment Center violated the Open Records Act in responding to Stephen Butler's September 27, 1999, request for his presentence investigation report in case number 96-CR-00024. On September 30, 1999, records custodian Lisa Hall denied the request, explaining that "on 4-17-97 WKCC responded to an open records request for a PSI, [and] it was denied." Ms. Hall indicated that Lee Adjustment Center's response was "the same." She attached a copy of a pre-drafted memorandum into which the appropriate information was inserted, including the fact that Mr. Butler "did not waive [his] PSI, which was completed by sentencing. " It was LAC's position that the disputed record was "privileged by statute and exempt from inspection under KRS 61.878(1)(l)," as well as caselaw (Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987)) and Corrections Policy 28-01-09, Section V. For the reasons set forth below, we affirm LAC's denial of Mr. Butler's request.
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 discharged of official duty by any probation or parole officer . . . . Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet.
The Kentucky Supreme Court has interpreted this confidentiality provision to extend to the PSI. Commonwealth v. Bush, supra.
In Bush , the Supreme Court addressed the question whether a criminal defendant is entitled to a copy of his PSI both at the pre-sentence and post-conviction stages. There the Court held that KRS 532.050(4), now codified as KRS 532.050(6), which requires a court to "advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation," does not require that court to release a copy of the report. Directly addressing the question whether the PSI falls within the parameters of the Open Records Act, the Supreme Court observed:
The 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)[(l)] which exempts any records made confidential by the General Assembly.
Bush , above at 944.
The Court concluded that in order to satisfy the "fair opportunity" requirements of KRS 532.050(6), a defendant who waived his PSI at sentencing "is entitled to being advised by the prison official who has custody of the PSI of the factual contents and conclusions therein." Id. The Corrections Policy to which Ms. Hall refers merely implements the Court's decision in Bush , which, in turn, interprets the applicable statutes.
According to the memorandum directed to Mr. Butler, he did not waive his PSI at sentencing, and was advised of the factual contents and conclusions therein at that time. We must assume that this notation accurately reflects the course of Mr. Butler's sentencing proceedings. Based on KRS 61.878(1)(l), incorporating KRS 439.510 and 532.050(6), as interpreted in Commonwealth v. Bush , Mr. Butler is foreclosed from obtaining a copy of his PSI under the Open Records Act. Accord , OAG 91-194; OAG 92-49; 94-ORD-71; 98-ORD-42; 98-ORD-152.
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.