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 properly relied on KRS 61.878(1)(j) in redacting certain information from Lee Burnett's resident record card before releasing it to him in response to his open records request. For the reasons that follow, we find that the Department's reliance on the cited exception was misplaced.
In a letter to Mr. Burnett dated August 14, 2000, Geraldine Glass, Assistant Branch Manager in the Department's Offender Information Services Branch, advised Mr. Burnett that portions of his resident record card had been redacted pursuant to KRS 61.878(4) because the card contained preliminary information. She explained that because Mr. Burnett was convicted of a sex offense in September, 1998, he was required to complete the Sex Offender Treatment Program before any good time credit could be applied to reduce his sentence. If he did not complete the program, his anticipated discharge date remained October 10, 2003. Dissatisfied with this response, Mr. Burnett initiated an open records appeal, asserting that his resident card had "been altered in violation of Kentucky's Open Records Statute."
In a supplemental response directed to this office following commencement of Mr. Burnett's appeal, Department of Corrections' Staff Attorney, Tamela Biggs, elaborated on Ms. Glass' response. She stated:
I asked Offender Information staff why the information was redacted. Staff will go ahead and calculate for entry into the Orion computer system the amount of the good time award; however, this amount is not applied to the length of an inmate's sentence until he successfully completes the Sex Offender Treatment Program. The award is contingent upon completion of the program; therefore, it is a preliminary increment of information that was redacted pursuant to KRS 61.878(1)(j). Once the inmate completes the program, the good time award becomes a "final" action of the agency and is applied to the calculation of the sentence. Mr. Burnett is not entitled to the information in its current preliminary form.
For these reasons, Ms. Biggs asserted that "the actions taken by Offender Information were appropriate." In our view, the Department's liberal construction of KRS 61.878(1)(j) is not supported by the express language of the exception and the rule of strict construction codified at KRS 61.871.
KRS 61.878(1)(j) authorizes public agencies to withhold "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." This provision, the Attorney General has often noted, "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. " 94-ORD-132, p. 3; see also, OAG 90-97; OAG 89-39; OAG 86-64. The purpose underlying KRS 61.878(1) is analyzed at page 4 of OAG 88-85:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
This purpose is not served by the nondisclosure of a portion of an inmate's resident record card that contains numerical calculations for early release based on good time credits earned.
Simply stated, these calculations no not involve subjective expression of opinion, but the immutable principles of mathematics. OAG 80-596, p. 3. No doubt, the decision to award the good time credits must be supported by favorable recommendations and opinions, but the calculations for the amount of a good time award are based on a precise mathematical formula that does not admit of subjective variation. Although the entry is "preliminary" because it reflects an occurrence, namely early release, that is conditioned upon completion of a prescribed program, it consists of neither recommendation, opinion, nor policy formulation. See 97-ORD-183 (holding that list of unclaimed property owners is not a subjective expression of opinion but an objective report of facts, and therefore does not qualify for exclusion under KRS 61.878(1)(j)). Accordingly, we find that the Department's reliance on KRS 61.878(1)(j) as the basis for redacting that portion of Mr. Burnett's resident record card reflecting the amount of good time award to which he is entitled if he completes the sex offender treatment program, was misplaced.
Because the Department cited no other statute supporting nondisclosure, we conclude that it must release an unredacted copy of the card to Mr. Burnett, or, alternatively, challenge this decision 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.