Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the actions of the Department of Corrections, relative to the request of Harold S. Brown for copies of his monthly parole reports, which reflect where he lived while he was out on parole under the supervision of Josh Tye, Division of Probation and Parole, from 1995 to 1998, violated the Open Records Act.
In his letter of appeal, Mr. Brown indicated that neither Mr. Tye nor the Department had responded to his request.
After receipt of the Notification to Agency of Receipt of Open Records Appeal and a copy of Mr. Brown's letter of appeal, M. Lee Turpin, Counsel for the Department, provided this office with a response to the issues raised in the appeal. In her response, Ms. Turpin advised:
Appellant made an Open Records Request on July 16, 2001, addressed to Josh Tye, Probation and Parole Officer. Upon receiving this appeal, the Department of Corrections (DOC) attempted to contact Mr. Tye to learn the status of this request. Mr. Tye's former supervisor, Forest K. Sexton, stated that Mr. Tye retired around the time of the request. Appellant has since been reincarcerated so his case has not been assigned to a new probation and parole officer. Mr. Sexton searched Appellant's files and contacted Mr. Tye. They have no record of ever receiving the request (see attached affidavit) so no response was ever given.
Regardless, the Division of Probation and Parole's response is that the monthly reports that Appellant requests are confidential and privileged under the Open Records Act pursuant to KRS 439.510, OAG 88-14, and Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987). The monthly reports requested include information obtained by the probation or parole officer in the discharge of his official duty. Included is information in the nature of the officer's opinions, observations, possible recommendations for treatment or further investigation, etc. This type of probation and parole information is privileged from release under the Open Records Act.
Appellant requested specific information from these monthly reports referring to his addresses from 1995 to 1998. This would be a request for information, not records, and would, therefore, not fall within the purview of the Open Records Act. The Division of Probation and Parole is not required to generate a document to satisfy this request. OAG 92-9. However, contingent upon further investigation into the Appellant's case file and the information contained therein, the Division may choose to compile this information and forward it to Appellant at his current location.
We are asked to determine whether the actions of the Department violated the Open Records Act. For the reasons that follow, we conclude that response of the agency was in accord with the Act and prior decisions of the courts and this office.
The response of Ms. Turpin indicates that thorough searches were made for Mr. Brown's request and, as noted above, no record that the request had ever been received was found. This presents a factual issue. Under the facts presented, we find no violation of the Open Records Act, as there is no evidence that either the parole officer or institution received the request and failed to respond to it.
Addressing the substantive issue, the Department, after receiving a copy of Mr. Brown's open records request which he had enclosed with his letter of appeal, denied access to the parole officer's monthly reports under authority of KRS 439.510.
Among the records excluded from the application of the Open Records Act are "[p]ublic 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 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.
Since the monthly reports were prepared by Mr. Brown's parole officer in the discharge of his official duties, these records, pursuant to KRS 439.510, would be exempt from disclosure and may be properly denied under KRS 61.878(1)(l). 96-ORD-147; OAG 88-14. Accordingly, it is the decision of this office that the Department's denial of the request for copies of the monthly reports was correct and in accord with provisions of the Open Records Act.
Moreover, the Department is correct in its assertion that the Kentucky Open Records Act addresses requests for records, not requests for information. To the extent Mr. Brown's was a request for information, the agency could properly deny such a request for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
The purpose of the Open Records Act is not to provide information, but to provide access to public records that are not exempt by law. OAG 79-547. Thus, we conclude that the Department did not violate the Act in denying Mr. Brown's request for information. However, as noted above in its response, the Department indicated that upon further investigation into Mr. Brown's case file and information contained therein, it may choose to provide him with the requested information.
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.
Harold S. Brown # 117963Northpoint Training CenterP.O. Box 479Burgin, KY 40310
M. Lee TurpinDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602