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 violated the Open Records Act in denying 48th Judicial Circuit Commonwealth's Attorney Larry Cleveland's November 15, 2002 request for access to "parole records with respect to Herman Douglas May as well as any and all records regarding sex offender treatment received while he was incarcerated, including specifically documents reflecting statements made by Herman Douglas May as part of sex offender treatment." Mr. May was convicted of rape and sodomy in the Franklin Circuit Court in October 1989 and was sentenced to twenty years on each charge with the sentences to be served concurrently. On September 18, 2002, his conviction was vacated after DNA test results and other evidence were presented to the trial court. While incarcerated, he participated in the Department's Sex Offender Treatment Program (SOTP). For the reasons that follow, we affirm the Department's denial of Mr. Cleveland's request for records containing statements he made while participating in the program.
By letter dated November 26, 2002, 1 Department of Corrections Staff Attorney Emily Dennis provided Mr. Cleveland with Mr. May's February 17, 1999 pre-parole progress report, a Parole Board memorandum to Mr. May dated February 25, 1999 advising him that because he was an "eligible sex offender, " as defined in KRS 197.410, he would not be eligible for parole consideration until he had been "denied entrance into, . . . been terminated from . . . or [had] successfully completed" the Sex Offender Treatment Program, and the July 23, 1999 decision of the Kentucky Parole Board. With reference to Mr. Cleveland's request for Mr. May's sex offender treatment records, Ms. Dennis indicated that such records:
are generally not subject to disclosure pursuant to KRS 61.878(1)(l), which exempts from inspection "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 197.440 provides a broad privilege from disclosure for sex offender treatment records . . . . In addition, the communications between Mr. May and members of the Kentucky Department of Corrections Sex Offender Treatment Program appear to be protected by the privilege created under KRE 507. 2
The Department denied Mr. Cleveland's subsequent request to reconsider its position under the exception to the privilege codified at KRS 197.440 for "communications related to an ongoing investigation," and this appeal followed.
On appeal, Mr. Cleveland noted that in vacating Mr. May's convictions the trial court granted his motion for a new trial. "This," he explained, "has resulted in a continuation of the criminal investigation in this case in order for this office to properly make a determination as to whether a second trial should be undertaken." Mr. Cleveland argued:
May made statements, including factual admissions, in order to enter the sex offender treatment program. We seek to learn the specific factual admissions made as part of this ongoing criminal investigation.
KRS 197.440 makes comments made in the application for or in the course of sex offender treatment privileged, but contains as an exception to such privilege "unless . . . the communication is related to an ongoing criminal investigation. " Corrections has denied access to the information requested under the belief that "the criminal investigation was closed" at the time May made his admissions. It claims the Commonwealth has "opened a new investigation" following the DNA results and thus is "not conducting an ongoing criminal investigation. " This narrow view taken by Corrections is not consistent with the language of KRS 197.440, which does not speak of an ongoing criminal investigation in terms of being required to be "ongoing" at the time the disclosure is made. Under the position taken by Corrections, all such admissions would be privileged, as they occur after the conviction and sentencing, and the language of the statute would be rendered meaningless.
In closing, Mr. Cleveland asserted that if, as the Department maintains, "the criminal investigation was 'closed' at the time of May's sentencing, May himself reopened it by his motion for scientific testing and for a new trial. "
In supplemental correspondence directed to this office following commencement of Mr. Cleveland's appeal, Ms. Dennis elaborated on the Department's position. Reaffirming the Department's reliance on KRS 61.878(1)(l) and KRS 197.440, she explained that the privilege expressly provides:
Communications made in the application for or in the course of a sexual offender's diagnosis and treatment in the program between a sexual offender or member of the offender's family and any employee of the department who is assigned to work in the program, or approved provider, as defined in KRS 17.550, shall be privileged from disclosure in any civil or criminal proceeding, other than proceedings to determine the sentence, unless the offender consents in writing to the disclosure or the communication is related to an ongoing criminal investigation.
Rejecting Mr. Cleveland's claim that Mr. May's factual admissions fall within the exception for records relating to "an ongoing criminal investigation, " Ms. Dennis asserted that "the Commonwealth's Attorney has opened a new criminal investigation due to the Franklin Circuit Court Order . . . ." In an earlier letter to Mr. Cleveland, she had explained:
The file records show that May was sentenced for rape and sodomy (both first degree) on February 23, 1990. May applied to [the Sex Offender Treatment Program] SOTP on July 9, 1996, at which time he was advised in writing of the limits of the privilege, including the exception contained in KRS 197.440 for "communications related to an ongoing criminal investigation. " You cite this exception as the reason May's SOTP documents should be disclosed to you as prosecuting attorney. Upon May's final sentencing, however, that criminal investigation was closed. Certainly at the time May entered the program and was advised of the limits of the statutory privilege there was no "ongoing criminal investigation. "
Noting that Mr. Cleveland had advised that Mr. May faces a new trial, Ms. Dennis reiterated that the Commonwealth's Attorney "ha[s] opened a new investigation and [is] not conducting an 'ongoing criminal investigation. '" 3
Further, as a matter of public policy, Ms. Dennis urged this office to affirm the Department's position, observing:
Corrections Policy and Procedure (CPP) 13.6 applies to the administration of the Sex Offender Treatment Program by the Department of Corrections. Participation in the SOTP program is not mandatory. However, pursuant to KRS 439.340, any individual who commits a sex offense after July 15, 1986 and who meets the eligibility criteria within the meaning of sections 197.400-197.440 must complete the SOTP before becoming eligible for parole consideration. Furthermore, KRS 197.045(4) provides that a sex offender convicted after July 15, 1998 shall serve his entire sentence without benefit of good time, parole, or other form of early release. The SOTP program requires participants to accept responsibility for their actions. "A sex offender, " states CPP 13.6 VI.B.2, "who does not admit guilt or responsibility for his sexually assaultive offense shall not be accepted in the Sex Offender Treatment Program, after the initial assessment phase." Corrections has an interest in maintaining the program as a rehabilitative tool for convicted sex offenders. It is against sound public policy for Corrections to voluntarily release a former inmate's SOTP documents to a Commonwealth's Attorney on appeal of the conviction that was the subject of the SOTP treatment.
Required disclosure of factual admissions made by inmates participating in the SOTP, she noted, would discourage participation in the program and undermine its goals. 4
We find that the language of KRS 197.440, coupled with the policy it evinces, supports the interpretation of the privilege advanced by the Department of Corrections and affirm the Department's denial of Mr. Cleveland's request. As noted above, KRS 197.440 establishes a privilege from disclosure in any civil or criminal proceedings for:
. Communications
. made in the application of or in the course of a sexual offender's diagnosis and treatment in the program
. between a sexual offender or member of the offender's family and any employee of the department who is assigned to work in the program, or an approved provider [.]
The statute recognizes two exceptions to the general rule of privilege: the first when the offender consents in writing to the disclosure, and the second when the communication is related to an ongoing criminal investigation. The statute further recognizes that the privilege does not apply to "disclosures made for the purpose of determining whether the offender should continue to participate in the program." Under the terms of KRS 197.440, offenders participating in the program must be informed in writing of the limits of the privilege.
It is undisputed that the communications at issue in this appeal were "made in the application of or in the course of" Mr. May's diagnosis and treatment in the SOTP and that they consist of factual admissions relating to the offense for which he was convicted in October 1989 that he made to employees of the Department assigned to the SOTP. These communications therefore fall squarely within the parameters of the privilege unless Mr. May consented in writing to their disclosure or they related to an ongoing criminal investigation. Clearly, Mr. May did not, at the time the communications were made, or at any time since, consent to their disclosure. Moreover, it is the opinion of this office that the communications did not, at the time they were made, relate to an ongoing criminal investigation within the meaning of KRS 197.440. 5
The term "ongoing" is variously defined as "going on, or actually in progress, continuing, progressing, " Webster's New World Dictionary, 994 (2nd Ed. 1974), and "currently taking place, " The American Heritage Dictionary, 582 (3rd Ed. 1994). Although the Commonwealth's Attorney has launched a new investigation into this matter, and that investigation is "going on," "in progress, " "continuing," "progressing, " or "taking place, " it is apparent that no investigation was "going on," "in progress, " "continuing," "progressing, " or "taking place" at the time Mr. May made the required, privileged admissions for participation in the SOTP. The investigation that resulted in his 1989 conviction was closed upon final sentencing.
We reject Mr. Cleveland's characterization of this position as an unduly "narrow view" of the language of KRS 197.440. Instead, we find that the position we adopt today "promote[s] the objects [of the statute] and carr[ies] out the intent of the legislature." KRS 446.080(1). Mr. May entered into a program contract with the Department, as do all SOTP participants, and included in this contract is a description of the privilege afforded by KRS 197.440 as well as the limits of the privilege. The candor of the participants, and by extension their likelihood of success in the program, is dependent on their understanding of the terms of the privilege, and an interpretation of the privilege that places the participants in jeopardy of self-incrimination is clearly inimical to the object the program seeks to promote, namely "taking and maintaining personal responsibility, . . . obtaining a thorough understanding of past patterns of sexually abusive behavior, and . . . developing a relapse prevention plan for maintaining an offense-free life in the future." As the Department correctly notes, such an interpretation would both discourage participation in, and undermine the goals of, the program.
The position we adopt is, at the same time, consistent with the rule of statutory construction codified at KRS 446.080(4) providing that all words and phrases "shall be construed according to the common and approved usage of the language." Although the statute lends itself to competing interpretations, one of which is the open-ended construction of the term "ongoing investigation" that Mr. Cleveland advocates, we find that an investigation into an offense that has been concluded by conviction and sentencing for that offense cannot be said to be indefinitely "going on," "in progress, " "continuing," "progressing, " or "taking place, " because events subsequently occur that result in the opening of a new investigation into that offense. Any doubt as to the correct interpretation of the language, between these competing interpretations, must be resolved in the manner that best promotes the objects of the legislation as stated above.
Because we believe that the privilege found at KRS 197.440 required the Department of Corrections to maintain the confidentiality of the factual admissions made by Mr. May in the course of his participation in the SOTP, we do not address the alternative arguments the Department advances. We affirm the Department's denial of Mr. Cleveland's request on this basis alone.
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.
Larry ClevelandFranklin Co. Commonwealth's Attorney315 West Main StreetFrankfort, KY 40601
Lisa CarnahanKY Department of CorrectionsP.O. Box 2400Frankfort, KY 40601
Steve DurhamOffice of General CounselKY Department of Corrections2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602
Emily DennisStaff AttorneyDepartment of Corrections2439 Old Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602
Footnotes
Footnotes
1 Because Mr. Cleveland's request raised an issue of first impression for the Department, the parties agreed to an extension of the standard three business day response time codified at KRS 61.880(1).
2 The Department also denied Mr. Cleveland access to letters from private individuals to the Parole Board regarding Mr. May on the basis of KRS 61.878(1)(i), authorizing nondisclosure of "correspondence with private individuals . . . ." Mr. Cleveland does not challenge, and we therefore do not address, the propriety of the Department's denial of this portion of his request.
3 In subsequent correspondence, Mr. Cleveland complained that his office "learned of [Mr. May's] admissions from the media [and that] the media would have learned of the admissions only from the defendant or Corrections." Under these circumstances, he asserted, there can be no "recognizable public policy reason for withholding an admission as to such crimes from a law enforcement agency." Mr. Cleveland does not indicate what admissions he "learned of" from the media or how they coincided or did not coincide with the facts established at trial. Nor does he offer any proof that a representative of the Department or Mr. May discussed any factual admissions with the media. Given the absence of proof that Mr. May spoke with the media and the potential that the facts in the media's possession were gleaned from court records, we are unwilling to impute a waiver of the privilege to Mr. May.
Mr. Cleveland also complained about the Department's failure to cite relevant legal authority for its interpretation of the privilege. Our research discloses no case law, or prior opinion of this office, interpreting KRS 197.440. This explains the paucity of direct legal authority cited by either of the parties to this appeal.
4 The Department of Public Advocacy submitted a supporting position paper in which it echoed the Department of Corrections' concerns. In addition, Public Advocacy advanced a number of constitutional arguments which may be relevant in resolution of this issue by the courts but are not relevant to the open records analysis we undertake.
5 Contrary to Mr. Cleveland's belief, we do not agree that the Department's interpretation of this language renders the exception to the privilege meaningless. If, while participating in the SOTP an offender makes admissions relating to an offense for which he was not convicted, and with regard to which the investigation has not been closed by conviction and sentencing, those admissions are not privileged.