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 actions of the Marion Adjustment Center (MAC) relative to Mike Rust's request to inspect a copy of his Pre-Sentence/ Post-Sentence Investigation Report (PSI) violated the Open Records Act. For the reasons that follow, we conclude MAC's actions did not violate the Act.
Responding to Mr. Rust's request on behalf of MAC, Alan Son, Records Manager, advised in pertinent part:
Pre-Sentence/ Post-Sentence 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 Pre-Sentence 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, 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 Memorandum is this date being forwarded to the Institutional Parole Officer, Charles Hunley, who will contact you regarding this matter.
Mr. Rust appealed from MAC's response, acknowledging that he had been allowed to inspect a copy of his PSI report, but with parts of it blackened out. Mr. Rust argued that he was entitled to an unredacted copy of his PSI report.
After receipt of Notification of Mr. Rust's appeal and a copy of his letter of appeal, Michael W. Huff, Acting Warden, provided this office with a response to the issues raised in the appeal. In his response, Warden Huff advised:
I am in receipt of an Open Records Appeal, log number 200300372 involving inmate Mike Rust #116410. Inmate Rust states he was allowed to review his PSI, however, he did not receive a copy as he requested. Inmate Rust did meet with the Institutional Parole Officer and was allowed to review his file. The IPO did edit the PSI prior to the inmate's review. This, as well as the fact the inmate did not receive a copy is abiding by Kentucky Department of Corrections Policy and Procedure 28-01-09, section VI, C, #2 & 3, which states:
This request was processed per policy and procedure. There was no denial or refusal to comply with this request.
For the reasons and authorities that follow, we conclude that the actions of MAC 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 MAC indicate that Mr. Rust waived his PSI at sentencing. Thus, while the institution is 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, supra, KRS 61.878(1)(l), KRS 439.510, Kentucky Department of Corrections Policies and Procedures 28-01-09, and 00-ORD-221. As noted in the responses above, Mr. Rust was allowed to review the factual contents of his PSI report. Moreover, the agency could properly redact nonfactual portions of the PSI that were of a "confidential, opinionated, or of a personal and nonfactual nature." Corrections Policies and Procedures 28-01-09. Accordingly, we conclude that the actions of the MAC 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.
Distributed to:
Mike Rust, #116410MAC-SMU-12895 Raywick Rd.St. Mary, KY 40063
Mike MoultonAttorney at Law58 Public SquareElizabethtown, KY 42701
Betty PrestonMarion Adjustment CenterHighway 84St. Mary, KY 40063 Michael W. HuffActing WardenP.O. Box 1095 Raywick Rd.St. Mary, KY 40063