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 Luther Luckett Correctional Complex (LLCC) relative to Lee Burnett's September 25, 2003 request to review his "institutional file that contains the information used on the Kentucky Registry Website Form," violated the Open Records Act. For the reasons that follow, we find the actions of LLCC did not constitute a violation of the Act.
By letter dated September 26, 2003 Carol Black, Offender Records Supervisor, LLCC, responded to Mr. Burnett's request, advising as follows:
I am in receipt of the above-mentioned wherein you request to review you[r] institutional file that contains the information used on the Kentucky Registry Website Form. The only public record responsive to your request is the pre-sentence investigation report (PSI). Pursuant to KRS 61.878(1)(l) certain public records exempted from inspection except on order of the court; and KRS 439.510 information obtained by probation or parole officer to be privileged. The information you are requesting is contained in the PSI and is exempt from disclosure. Therefore, your request is denied.
In his letter of appeal, Mr. Burnett stated that information in the "brief description of the crime or crimes" section on his Kentucky Registry Form had incorrectly reported that his crime involved two victims rather than one. He indicated he wanted to review his PSI report in order to show the information was incorrect and have the information on the Kentucky Registry Form corrected to show that only one victim was involved.
After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised, in relevant part:
Mr. Burnett alleges that the information has been reported incorrectly on his Kentucky Registry Form. Since Ms. Betsi Cunningham, Offender Information Services, LLCC, informed Mr. Burnett that the information used to complete the form comes from his PSI, Mr. Burnett claims as follows:
Please be advised that Mr. Burnett's complaint regarding the information reported on the Kentucky Criminal Offender Registry Form has been resolved. Information on this form has been changed to reflect the Final Judgment and Sentence of Imprisonment rendered by the McCracken Circuit Court, Division 1 in Indictment #98-CR-00110 (See Exhibit 1 attached). With respect to the remaining open records issue, LLCC's response to Mr. Burnett's request for his PSI should be affirmed. Mr. Burnet admits knowledge that his PSI is privileged by law and therefore exempt from disclosure. "A new and dangerous situation" is not a recognized exception to KRS 439.510.
The only open records issue before us is whether the LLCC properly denied Mr. Burnett's request to review his PSI report. For the reasons, that follow, we conclude that the LLCC properly denied the request under authority of KRS 61.878(1)(l) and KRS 439.510. 1
KRS 61.878(1)(l), 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."
KRS 439.510 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 LLCC's denial of Mr. Burnett's request. Thus, KRS 439.510, in tandem with KRS 61.878(1)(l), authorizes the nondisclosure of the PSI Report. 00-ORD-221. Accordingly, we find that the LLCC did not violate the Open Records Act in denying his request to review his PSI.
As noted in the Department's response, information on Mr. Burnett's Kentucky Criminal Offender Registry Form as to the number of victims has been changed to correctly reflect his Final Judgment and Sentence of Imprisonment and issues as to the factual inaccuracies on his Kentucky Registry Form have been resolved.
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.
Footnotes
Footnotes
1 It is not the function of the Attorney General in an open records appeal to determine whether information contained in a public record is accurate, but to determine whether the agency's actions in response to an open records request is in compliance with the Open Records Act. As noted in the Department's response, the issues as to the factual inaccuracies on Mr. Burnett's Kentucky Registry Form have been resolved.