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 actions of the Hopkins County Jail in response to the March 10, 2003 request of Timothy Daugherty for copies of records pertaining to him that were sent to the Parole Board by the Jail violated the Open Records Act. For the reasons that follow, we conclude that the actions of the Jail did not violate the Act.
By letter dated March 26, 2003, Jim Lantrip, Jailer, advised this office that, except for the "Parole Board Assessment Report," Mr. Daugherty had been provided with copies of the records he requested.
40 KAR 1:030, Section 6, provides: "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." Accordingly, since Mr. Daugherty has been provided access to the records he requested, the records access issue in the appeal, as to the provided records, is moot and no decision will be rendered on this issue.
KRS 61.880(1), in part, provides that an "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " To the extent the Jail did not cite the specific exception authorizing nondisclosure and an explanation as to how the exception applied to the record withheld, its response was procedurally deficient.
However, this office has previously recognized that an agency may properly withhold certain probation and parole records, such as a Parole Board Assessment Report, under authority of KRS 439.510, in tandem with KRS 61.878(1)(l).
KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 provides:
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.
In construing this provision, the Attorney General recently observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987), the Kentucky Supreme Court suggested that its purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." In Bush, above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his presentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court's decision in Bush, above, in OAG 88-14 the Attorney General affirmed the agency's denial of an inmate's access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a "special report" prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for presentence investigation reports).
01-ORD-97, p.4. In 01-ORD-97, we upheld the Division's decision to withhold "contemporaneous handwritten notes" prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that these records "[fell] squarely within the parameters of the privilege established at KRS 439.510." 01-ORD-97, p. 4.
Accordingly, based on the authorities set out above, we affirm the Jail's nondisclosure of the Parole Board Assessment Summary.
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 proceedings.
Tim Daugherty, # 160305Hopkins County Jail2250 Laffoon TrailMadisonville, KY 42431
Robert MooreHopkins County AttorneyHopkins County Courthouse25 East Center StreetMadisonville, KY 42431
Jim Lantrip, JailerHopkins County Jail2250 Laffoon TrailMadisonville, KY 42431
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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