Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Northpoint Training Center violated the Open Records Act in partially denying Phildosha Umar Aljami's request to inspect a copy of his Presentence/ Postsentence Investigation Report (PSI). For the reasons that follow, we conclude the Center's denial did not violate the Act.
Responding to Mr. Aljami's request on behalf of the Center, Mendalyn Cochran, Offender Records Specialist, advised in pertinent part:
Presentence/ Postsentence Investigation Reports are privileged by statute and exempt from inspection under KRS 61.878(1)(l). However, according to Corrections Policies and Procedures 28-01-09, the factual contents and conclusions contained in a waived PSI may be released, per Commonwealth v. Donnie Ray Bush, 740 S.W.2d [943] (Ky. 1987). In addition, the completion of the presentence investigation report may be delayed until after sentencing upon written request of the defendant. KRS 532.050(1) .
Your file has been reviewed and it has been found that:
[X] You waived your PSI or requested a delay of completion of the PSI until after sentencing for Indictment # 00CR00658, and therefore, are entitled to be advised of the factual contents and conclusions contained in your PSI. Therefore, your request, and a copy of this memo are this date being forwarded to the institutional parole officer Ray Canterberry, who will contact you regarding this matter.
Mr. Aljami appealed from the Center's response, arguing that he was improperly deprived of a copy of his PSI report.
After receipt of Notification of Mr. Aljami's appeal and a copy of his letter of appeal, Brian A. Logan, Staff Attorney, Department of Corrections, provided this office with a response and a supplemental response to the issues raised in the appeal. In his response, Mr. Logan advised that, pursuant to KRS 439.510, an inmate's PSI report is privileged information and shall not be disclosed directly or indirectly to any person other than the Court, Board, or Cabinet.
In his supplemental response, Mr. Logan further advised that Mr. Aljami had been allowed to review the factual contents of his PSI report and enclosed a form signed by Mr. Aljami acknowledging that fact. Mr. Logan reiterated that a copy of the PSI is not required to be given to Mr. Aljami, citing 00-ORD-221.
For the reasons that follow, we conclude that the responses of the Center and Department were proper and did not violate the Open Records Act.
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 or 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, cabinet or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet.
In interpreting the application of KRS 61.878(1)(l) and KRS 439.510 to an open records request by an inmate for a copy of his PSI report, this office in 00-ORD-221, upheld a denial of an inmate's request for a copy of his PSI report, stating:
While it is true that the Open Records Act excludes from public inspection "[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), and that KRS 439.510 has been interpreted by Kentucky's Supreme Court to extend to the presentence investigation report, Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987), the inquiry does not end here.
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," operating in tandem with KRS 439.510, does not require the 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:
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 responses of the Center and the Department indicate that Mr. Aljami waived his PSI at sentencing. Thus, while these agencies are not required to furnish him with a copy of the PSI report, if he waived his PSI at sentencing, he is entitled to be advised by the prison official who has custody of it of the factual contents and conclusions therein. Bush, above. As noted in the agencies' responses above, Mr. Aljami was allowed to review or was advised of the factual contents of his PSI report and Mr. Aljami signed a form acknowledging that fact. Accordingly, we conclude that the actions of the Center and Department were proper and did not constitute a violation of the Open Records Act.
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.
Phildosha Umar Aljami, # 145479 D-3Northpoint Training CenterP.O. Box 479Burgin, KY 40310
Mendalyn CochranOffender Records SpecialistNorthpoint Training CenterP.O. Box 479Burgin, KY 40310
Brian A. LoganStaff AttorneyDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort, KY 40602-2400