Request By:
Anthony Mattingly, # 115494
Northpoint Training Center
P.O. Box 479
Burgin, KY 40310Cleo Jones
Probation and Parole Office
200 South Seventh Street
Louisville, KY 40202M. Lee Turpin
Department of Corrections
Office of General Counsel
2439 Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400
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 Anthony Mattingly's April 2, 2001, request for "a copy of [the] exact dates and verification of [his] jail credit" in case number 93CR0288. For the reasons that follow, we conclude that the Division's response was procedurally deficient. Although we question whether "dates and verification of jail credit" can properly be characterized as "information obtained in the discharge of official duty by [a] probation and parole officer, " within the meaning of KRS 439.510, we must affirm the Division's denial of Mr. Mattingly's request.
Mr. Mattingly directed his April 2 open records request to his parole officer. That request went unanswered, prompting him to initiate this appeal. In a response mailed to this office following commencement of the appeal, Department of Corrections' staff attorney, M. Lee Turpin, acknowledged that the probation and parole officer to whom the request was directed did not respond to the request, explaining that "she could not supply the requested documentation pursuant to KRS 439.150," a provision prohibiting disclosure of information obtained by a probation and parole officer in the discharge of his or her official duty. The existence of this nondisclosure provision did not, however, relieve the Division of Probation and Parole from responding in writing, and within five business days, to Mr. Mattingly's request as required by KRS 61.880(1), 1 and KRS 197.025(7), 2 and so advising him. The Division's failure to do so constituted a violation of the procedural requirements of the Open Records Act,
Turning to the substantive issue in this appeal, we find that although the Division appears to construe KRS 439.510 too broadly, we must nevertheless affirm its denial of Mr. Mattingly's request. KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 3 provides:
All information obtained in the discharge of official duty by any probation and parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board or cabinet.
In construing this provision, the Attorney General recently observed:
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 preparole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for presentence investigation reports).
01-ORD-97, p. 4. In 01-ORD-97, we upheld the Division's decision to withhold "contemporaneous handwritten notes" prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that these records "[fell] squarely within the parameters of the privilege established at KRS 439.510." 01-ORD-97, p. 4.
It appears the records at issue in this appeal do not clearly qualify for protection from disclosure under the privilege since records verifying dates of an inmate's confinement and credit for time served do not reveal "sources of confidential information, " nor do they reflect "matters of opinion, and comments of a personal and nonfactual nature." Bush at 944. They are, instead, purely factual in nature, and the purpose for which KRS 439.510 was enacted does not appear to be served by their nondisclosure, notwithstanding the fact that the records were obtained by a parole and probation officer in the discharge of her official duty. We see no impediment to disclosure of the records to Mr. Mattingly.
Nevertheless, we must defer to the Division of Probation and Parole in its expansive construction of this nondisclosure provision. We therefore affirm the Division of Probation and Parole's denial of Mr. Mattingly's request, but suggest that the Division may wish to reconsider its position in light of the analysis set forth above.
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.
Footnotes
Footnotes
1 KRS 61.880(1) provides as follows:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
2 KRS 197.025(7) provides:
KRS 61.880(1) to the contrary notwithstanding, upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the record shall be released.
3 KRS 61.878(1)(l) authorizes 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.