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 Department of Corrections violated the Open Records Act in its disposition of the request of Anthony Spencer to inspect "Letters written to the Parole Board on my behalf. These letters include letters from Police Officers, Commonwealth Attorneys Office, and Judges." We conclude the Department's disposition of the request did not violate the Act.
In the Department's initial response, Larry T. O'Connor, Offender Information Services, denied this request stating that correspondence received relative to an inmate's prospect of parole, either in favor or against parole, is exempt under KRS 61.878(1)(i), as correspondence with private individuals other than correspondence which is intended to give final notice of final action of a public agency, and KRS 61.878(1)(j), as preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
After receipt of Notification of the Appeal and a copy of Mr. Spencer's letter of appeal, Emily Dennis, Staff Attorney, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
In 87-24, the Attorney General opined " . . . that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether the Board should or should not grant a parole is a preliminary document expressing personal opinions and recommendations and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. This is consistent with Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953, 956 (1983), in which the Court of Appeals held that letters, correspondence, reports, notes, or recommendations remain exempt from public disclosure unless adopted and made a part of final action by the Kentucky State Board of Medical Licensure. A review of Inmate Spencer's files confirms that none of the letter's from public officials that inmate Spencer requested are incorporated in parole board decisions concerning Spencer.
For these reasons, the Department of Corrections properly denied inmate Spencer's request as stated in the response prepared by Mr. O'Connor . . . .
We are asked to determine if the Department's denial of Mr. Spencer's request violated the Open Records Act. For the reasons that follow, we conclude it did not.
61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 93-ORD-136, this office held that the Department of Corrections properly relied upon these two exceptions in denying a request for copies of records or documents which had been sent to the Parole Board wherein individuals set forth personal opinions and recommendations as to whether a prisoner should be paroled. In that decision, we observed:
In 93-ORD-1, a copy of which is enclosed, we said that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In addition, we also stated that a letter from a person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection under KRS 61.878(1)(h) and (i) [now codified as KRS 61.878(1)(i) and (j)] unless incorporated into or made a part of the Parole Board's final action relative to eligibility for parole.
Accordingly, we conclude that, under the authority of KRS 61.878(1)(i) and (j) and prior opinions of this office, the Department properly denied Mr. Spencer's requests for a copy of any letters submitted to the Parole Board relative to his prospects of parole, as the Department's supplemental response indicated that none of the requested records were adopted as part of the Parole Board's decisions concerning him.
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.
Anthony Spencer # 87580-E-110-A95 Raywick RoadSt. Mary, KY 40063
Larry T. O'ConnorOffender Information Services Branch, Rm G-22439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Emily DennisStaff AttorneyOffice of General Counsel2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400