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' Division of Probation and Parole violated the Open Records Act in the disposition of Melanie Nehmzow's requests to inspect various records pertaining to James L. Lennon. For the reasons that follow, and upon the authorities cited, we affirm the Division's partial denial of Ms. Nehmzow's requests with the exception of the March 9, 2001, sign out log.
Ms. Nehmzow did not provide this office with a copy of her March 11, 2001, request, which was apparently received in the Louisville East Office of the Division of Probation and Parole on March 12, and the identity of the records requested is in dispute. Ms. Nehmzow argued that she requested Mr. Lennon's "complete parole file," and the Division counters that she requested specific documents in the file. In any event, on March 19, 2001, Parole Officer Ellen Burt responded to Ms. Nehmzow's request by releasing all records identified in that request with the exception of the rules and regulations for St. Patrick's Halfway House and Gene Clifford's records relating to Mr. Lennon. Officer Burt explained that the Division does not maintain a copy of the rules and regulations for the halfway house, and that no responsive records exist relative to Gene Clifford and Mr. Lennon.
On April 4, 2001, Ms. Nehmzow submitted a supplemental request in which she sought access to:
1. The original documents from which the copies furnished to her had been made;
2. Any "contemporaneous handwritten notes" generated by Officer Burt that relate to Mr. Lennon and Ms. Nehmzow;
3. Officer Burt's March 9, 2001, sign out log, and any phone log or message log, destination log, taped conversation, or other demonstrative evidence that reflect "the exact time Officer Burt received a phone call from Dismas St. Patrick's and left the Clifton office, between the hours of 8:00 a.m. and 9:00 a.m.";
4. Any information that Officer Burt may have relating "to this matter," and her investigation of Ms. Nehmzow and Mr. Lennon.
In addition, Ms. Nehmzow requested a copy of Corrections Policies and Procedures (CPPs) Chapter 27 and 28.
In a response dated April 9, 2001, District Supervisor James L. Wagner, Jr., denied Ms. Nehmzow's request on the basis of KRS 439.510. Further, he denied her request for "any information relating to this matter . . . ." Mr. Wagner explained that the Division of Probation and Parole is not obligated to honor a request for information as opposed to a request for specifically identified public records. He agreed to provide Ms. Nehmzow with a copy of Officer Burt's March 9 sign out log, and unsecured CPPs, upon receipt of prepayment for copies.
Shortly thereafter, Ms. Nehmzow issued written objections to Mr. Wagner's response. She questioned his reliance on KRS 439.510, arguing that disclosure of the requested records could not be said to harm the agency since Mr. Lennon executed a release of the records in her behalf. Moreover, she asserted, "Officer Burt is no longer Mr. Lennon's parole officer [inasmuch as] his parole has been revoked." With reference to Officer Burt's sign out log, Ms. Nehmzow objected to receipt of a heavily redacted copy, noting that the Open Records Act requires the Division to cite the statute authorizing partial nondisclosure. She acknowledged that she was not entitled to receive information, but reaffirmed her belief that she is entitled to receive records containing information. For this reason, she renewed each of her earlier requests, emphasizing that she wished to obtain "the complete records which pertain to Mr. Lennon and [her]." Simultaneously, Ms. Nehmzow initiated an open records appeal to this office.
In a supplemental response directed to this office following commencement of Ms. Nehmzow's appeal, Department of Corrections Staff Attorney Jennifer Hatcher amplified on the Division of Probation and Parole's position. She explained that the records originally disclosed to Ms. Nehmzow were those "that would normally be introduced at a parole revocation hearing." With reference to the documents withheld by the Division in its response to Ms. Nehmzow's second request, she observed:
KRS 61.878(1)(l) exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Pursuant to KRS 439.510, information obtained by a probation and parole office in the discharge of his or her [duties] is exempt from disclosure. KRS 439.510 provides in pertinent part:
The privilege created by KRS 439.510 does not end upon revocation of an individual's parole nor does the parolee have the power to waive the privilege. Furthermore, the statute makes "any information obtained in the discharge of official duty by any probation and parole officer" privileged. KRS 439.510 does not limit the privilege to information pertaining only to a probationer or parolee it extends to "any information" obtained by the Probation and Parole Officer.
Ms. Nehmzow's open records request to review Officer Burt's handwritten notes was properly denied as such information was privileged under KRS 439.510 . This is clearly information obtained during the discharge of Officer Burt's duties as a probation and parole officer. The Office of the Attorney General has recognized that KRS 439.510 makes "information obtained in the discharge of official duty" privileged and inspection of such information may be denied based upon KRS 61.878(1)(l).
In defense of Mr. Wagner's denial of Ms. Nehmzow's request for "any information relating to this matter and [Officer Burt's] investigation of Mr. Lennon and her," Ms. Hatcher asserted that this was "not a request for specific records but a request for research to be performed." Relying on OAG 89-45, she maintained that the Open Records Act does not require public agencies to carry out research or compile information to conform to a given request. In closing, Ms. Hatcher defended the Division's partial denial of Ms. Nehmzow's request for the sign out log. She stated that "the redacted information was unrelated to [that] request regarding the whereabouts of Officer Burt." Ms. Hatcher emphasized that Ms. Nehmzow "was provided with the specific information she had requested from this particular log. "
With the exception noted below, we find that the records withheld fall squarely within the parameters of the privilege established at KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). We concur with the Division of Probation and Parole in its view that the privilege does not terminate upon revocation of an individual's parole, and cannot be waived by the parolee. Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987), the Kentucky Supreme Court suggested that its purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." In Bush, above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his presentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court's decision in Bush, above, in OAG 88-14 the Attorney General affirmed the agency's denial of an inmate's access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a "special report" prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for presentence investigation reports). On this basis, and under this line of precedents, we conclude that Officer Burt's "contemporaneous handwritten notes," and any other records she may have "relating to this matter" qualify for exclusion under KRS 439.510, and its broadly worded protection that extends to "all information obtained in the discharge of official duty by a probation or parole officer . . . ."
Further, we affirm the Division's refusal to honor Ms. Nehmzow's requests for information. As we have so often noted, and the Division correctly argues, public agencies are not obligated to compile information to conform to the parameters of a request for research to be performed, as opposed to a request for specifically described public records. We will not belabor this issue, but instead refer Ms. Nehmzow to this office's decisions in 99-ORD-71, a copy of which is attached hereto and incorporated by reference.
We cannot affirm the Division of Probation and Parole's partial denial of Ms. Nehmzow's request for an unredacted copy of the March 9, 2001 sign out log. The Division maintains that it redacted all entries except those documenting Officer Burt's actions because these entries were "unrelated to Ms. Nehmzow's request for information regarding the whereabouts of Officer Burt." This, however, is not a legally recognized basis for denying access to a public record. The language of KRS 61.880(1) "directing agency action is exact." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 857 (1996). It requires the custodian of records to provide "a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). The Division of Probation and Parole was therefore obligated to disclose the sign out log in its entirety, or to cite a statutory basis for partially denying access. Consistent with this view, the Division is directed to reevaluate its disposition to this portion of Ms. Nehmzow's request, and to respond accordingly.
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 proceedings.
Melanie Nehmzow1636 Blue Horse AvenueLouisville, KY 40206
James L. Wagner, Jr.Department of CorrectionsDivision of Probation and Parole 225 North Clifton Avenue, Suite # 7Louisville, KY 40206
Jennifer HatcherDepartment of CorrectionsOffice of General Counsel2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400