Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Western Kentucky Correctional Complex (WKCC) properly denied Timothy Tyler's request for a copy of his presentence investigation report pursuant to KRS 61.878(1)(l), which authorizes the nondisclosure of "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The agency omitted citation of KRS 439.510 which makes confidential:
All information obtained in the discharge of official duty by any probation or parole officer . . . . 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.
The Kentucky Supreme Court has interpreted this confidentiality provision to extend to the
PSI. Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987), cited in the WKCC's denial of Mr. Tyler's request. This office will not render an adverse decision against a public agency, based on a technical error, when the requested record is clearly exempt. To do so would be tantamount to ordering a public agency to violate state law by disclosing a confidential record. KRS 439.510, in tandem with KRS 61.878(1)(l), authorizes the nondisclosure of the PSI Report.
In his letter of appeal, Mr. Tyler asks whether KRS 61.884 applies to inmates and whether he is entitled to the requested records since they pertained to him. The statute applies to inmates and to Mr. Tyler. However, the release of records under KRS 61.884 is subject to the provisions of KRS 61.878. KRS 61.884 provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
As noted above, we concluded the institution properly relied on KRS 61.878(1)(l) and KRS 439.510(1) in denying Mr. Tyler's request. Accordingly, since the requested records are exempt from disclosure under these provisions, they are not required to be disclosed under KRS 61.884. 98-ORD-122.
We believe that 99-ORD-216, and the authorities cited therein, are controlling. A copy of that decision is attached hereto, and incorporated by reference. When a specific statute directs the nondisclosure of a specific record, there is no need for further explanation. Western Kentucky Correctional Complex is not required to provide Mr. Tyler with a copy of his PSI.
Moreover, the agency's response indicates that Mr. Tyler did not waive his PSI at sentencing and was advised of the factual contents and conclusions therein at that time. Accordingly, based on KRS 61.878(1)(l), incorporating KRS 439.510 and KRS 532.050, as interpreted in Bush, supra, Mr. Tyler is also foreclosed from obtaining a copy of his PSI under the Open Records Act. 99-ORD-216.
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.