Request By:
Roger A. Berke
Fulton County Jail
2010 S. 7th Street, # 105
Hickman, KY 42240Larry O'Connor
Offender Information Services
Department of Corrections
2439 Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400Emily Dennis
Staff Attorney
Office of General Counsel
2439 Lawrenceburg Road
P.O. Box 2400
Frankfort, KY 40602-2400
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Department of Corrections relative to the July 24, 2004 open records request of Roger A. Berke, addressed to Geraldine Glass, Asst. Br. Mgr., Offender Information/Records, for "copies of whatever information is retained in my files concerning a detainer/ warrant out of Tennessee, and also my waiver of extradition, " violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of a procedural deficiency, that the agency's actions did not violate the Act.
In his letter of appeal, dated October 17, 2004, Mr. Berke indicated that he had not received a response to his request. After receipt of notification of the appeal and a copy of the letter of appeal, Emily Dennis, Staff Attorney, Department of Corrections, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
It bears noting at the outset that Geraldine Glass is a retired state employee and has not worked for Corrections at any time during calendar year 2004. Upon receipt of this appeal, I spoke with Offender Information Specialist Larry O'Connor regarding Mr. Berke's allegations. Mr. O'Connor searched Mr. Berke's Central Office inmate file for a copy of the alleged letter, which he found in the parole information section of the record along with some other requests made by Mr. Berke to the Parole Board and Division of Probation and Parole during July 2004. These requests were received following a 6/23/2004 hearing where the Parole Board ordered Mr. Berke to serve out his five-year sentence for tampering with physical evidence. Since the request was not stamped in by anyone in the OIS [Offender Information Services] Branch and was intermingled with other requests, it is clear that no response has been made to the request. This is a procedural violation of the Kentucky Open Records Act. Pursuant to KRS 197.025(7), the Dept. of Corrections has five (5) business days in which to respond to an open records request.
While the Department admits that the OIS failed to respond to Mr. Berke in violation of the Open Records Act, it appears that the request was misplaced and possibly received by the Parole Board along with a 7/23/2004 request made to the Parole Board or by the Division of Probation and Parole with a 7/24/2004 request (See Exhibit 1 and attachments).
In reviewing Mr. Berke's file to respond to this appeal, Mr. Connor did not find any documents in Berke's inmate record showing that he waived extradition to TN. There is, however, a letter of detainer from the Rutherford Co. Sheriff's Dept. in Murfreesboro, TN, copy of which was received by Mr. Berke on 10/27/2003, and a warrant from the State of Tennessee served on Roger Berke on 01/06/2003 (Exhibits 2-4). These records are enclosed and provided to Mr. Berke free of charge in response to his appeal. Regardless of whether Mr. Burke waived extradition to Tennessee, the Dept. of Corrections will not relinquish custody of Mr. Berke without proper authorization from the Governor of the Commonwealth of Kentucky or a processed application for TN to obtain temporary custody under the Interstate Agreement on Detainers (IAD).
In conducting research for this appeal, Mr. O'Connor also located a 7/24/2004 request to OIS from Mr. Berke for a copy of his PSI, to which no response has apparently been made. Presentence/ Postsentence Investigative Reports (PSIs) are privileged under KRS 439.510 and exempt from disclosure under KRS 61.878(1)(l). Pursuant to state law, a Defendant may review the factual contents and conclusions contained in a PSI once as a matter of right. Mr. Berke's PSI was completed at final sentencing, at which time he was given an opportunity to refute the factual contents contained therein. Since a PSI may not be disclosed to any person absent order of the Court, Commissioner, or Parole Board and Mr. Berke was provided an opportunity to refute factual contents at the time of sentencing, he is not entitled to review or receive a copy of the PSI.
Ms. Dennis' response to this office indicates that a copy of her response was sent to Mr. Berke.
We are asked to determine whether the actions of the Department relative to Mr. Berke's request violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of an admitted procedural violation, the Department's actions did not violate the Act.
With respect to the procedural requirements of the Open Records Act, as they pertain to correctional facilities, KRS 197.025(7) provides:
upon receipt of a request for any record, the department shall determine within five (5) days after receipt of the request, excepting Saturdays, Sundays, and legal holidays, whether the records shall be released.
The Department acknowledged that a violation of the cited provision occurred in the requests made by Mr. Berke, and we will not belabor this issue.
Addressing the substantive issues, the Department, in its response, advised that it found no records showing that Mr. Berke waived extradition to Tennessee. Obviously, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. The Department discharged its duty under the Open Records Act by affirmatively so advising that it did not have a document responsive to the request. 99-ORD-150. Accordingly, we find no violation of the Open Records Act in this regard.
The Department did advise Mr. Berke that it found a letter of detainer from the Rutherford Co. Sheriff's Dept. in Murfreesboro, Tennessee and a warrant from the State of Tennessee served on Roger Berke on 01/06/2003. The Department indicated that these records were provided to Mr. Berke free of charge. Since these records were provided to Mr. Berke, we conclude that any issue of access to these records is moot. 40 KAR 1:030, Section 6.
Finally, in response to Mr. Berke's July 24, 2004 request for a copy of his Presentence/ Postsentence Investigative Report (PSI), the Department denied the request, advising that the report is privileged under KRS 439.510 and exempt from disclosure under KRS 61.878(1)(l). The Department explained that since Mr. Berke's PSI was completed at final sentencing, at which time he was given an opportunity to review and refute the factual contents contained therein, he was not entitled to review or receive a copy of the PSI, absent an order of the Court, Commissioner, or Parole Board.
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.
Because the PSI Report is prepared by a probation officer, pursuant to KRS 532.050(2), the Kentucky Supreme Court has interpreted this provision to extend to the
PSI. Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987). In Bush , the Supreme Court addressed the question whether a criminal defendant is entitled to a copy of his or her PSI at the pre-sentencing and post-conviction stages. There the court held that KRS 532.050(4) [now codified as KRS 532.050(5)], which required a court to "advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation . . . ," does not require the court to release a copy of the report. Directly addressing the question of whether the PSI falls within the purview of the Open Records Act, the Supreme Court observed:
The PSI would be a public record subject to the Open Records Act, KRS 61.870, except for the fact that it is excluded from public inspection by virtue of KRS 61.878(1)[l] which exempt any records made confidential by the General Assembly.
KRS 439.510, in tandem with KRS 61.878(1)(l), makes the PSI confidential and exempt from disclosure under the Open Records Act. Accordingly, we conclude the Department properly denied Mr. Berke's request.
Moreover, KRS 532.050(5) provides:
Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant's counsel a copy of the presentence investigation report. It shall not be necessary to disclose the sources of confidential information.
As noted above, the Department indicated that Mr. Berke was advised of the factual contents and conclusions contained in his PSI at the time of final sentencing and, thus, was afforded a "fair opportunity" to refute its contents. This would satisfy the requirements of KRS 532.050(5) and the Supreme Court's holding in Bush . We find no violation of the Open Records Act as to this issue.
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.