Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of Corrections violated the Open Records Act in its disposition of the request of Eric Cunningham to inspect "my entire Parole Record, including but not limited to the contract signed by me, all notes in my files from reporting dates, all incidents I reported such as thefts, threats, drug use, and to be placed on the move out list; all of my drug test results and any other documents that contain a specific reference to me." In his letter of appeal, Mr. Cunningham indicated that he had not received a response to his January 22, 2005 request, addressed to Bobbie Kelly, Probation & Parole Officer, Department of Corrections. For the reasons that follow, we conclude the Department's disposition of the request did not violate the Act.
After receipt of Notification of the Appeal and a copy of Mr. Spencer's letter of appeal, Emily Dennis, Staff Attorney, provided this office with a response to the issues raised in the appeal. In response to the claim that the agency never responded, Ms. Dennis advised:
As explained to me by Officer Kelly, she did not initially respond to Mr. Cunningham's letter due to a meeting she had with Eric Cunningham on 01/27/2005. At the time he wrote his 01/22/2005 request, Mr. Cunningham was incarcerated at the Jefferson Co. Detention Center. On 01/26/2005, Mr. Cunningham was transferred from Jefferson Co. to the Fayette Co. Detention Center. On 01/27/2005, Officer Kelly met with Eric Cunningham, who asked her if she had received his open records request. At that time, she told him she had not. When Officer Kelly told Mr. Cunningham she had not received his request, he told her not to worry about it, that he would write out a list of questions he intended to ask her at his parole violation hearing. . . .
Addressing the substance of Mr. Cunningham's request, Ms. Dennis, in relevant part, stated:
A proper response from Ms. Kelly would have denied his inspection request. KRS 61.872(3) permits a person to inspect public records not otherwise exempt from disclosure at a public agency's designated time and place. In this case, to the extent any non-exempt public records exist in Mr. Cunningham's parole record, the records are available for inspection during regular business hours at the Ninth District Probation & Parole Office located on 273 W. Main St., Lexington, KY 40507. From the time he submitted his request to date, Mr. Cunningham has been incarcerated. Officer Kelly has no obligation to bring the original records to the Fayette Co. Detention Center for his review.
Additionally, reports and records prepared by probation and parole officers in the discharge of their official duties are exempt from disclosure and cannot be provided under KRS 439.510 and KRS 61.878(1)(l). . . .
The privilege established at KRS 439.510 is incorporated by reference into the Open Records Act by operation of KRS 61.878(1)(l). The privilege does not terminate upon revocation of an individual's parole, and cannot be waived by the parolee. See 01-ORD-97. The privilege under KRS 439.510 exempts from disclosure all case notes in the officer's case files which would include references in those notes to incidents Mr. Cunningham reported to Officer Kelly, such as alleged thefts, threats, drug use, and a request to be placed on the move out list.
Assuming Mr. Cunningham had requested copies of the "contract" he signed and drug test results, he would have been entitled to receive copies of these precisely described records upon prepayment in the amount of ten cents per page plus postage, payable by check or money order payable to the Kentucky State Treasurer. A request for copies of " . . . any other document that contains a specific reference to me . . . " does not comply with KRS 61.872(3)(b), which requires a requester to precisely describe the public records for which copies are sought. . . .
Ms. Dennis further advised that because of the failure to respond to Mr. Cunningham's request, the Department would provide him free of charge those records specifically requested that are not exempt from disclosure.
We are asked to determine if the Department's actions relative to Mr. Cunningham's request violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
We first address Mr. Cunningham's complaint that the agency failed to respond to his original request. In the Department's response to the letter of appeal, Ms. Dennis advised that she had consulted with Officer Kelly about the failure to respond to Mr. Cunningham's request and Officer Kelly indicated that Mr. Cunningham had told her on 01/27/2005 to disregard the request. Regarding factual disagreements of this nature between a requester and a public agency, this office, in OAG 89-81, stated:
This office cannot, with the information currently available, adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office under open records provisions. It seems clear that you have permitted inspection of some records [the requester] asked to inspect, and that copies of some records have been provided. Hopefully any dispute regarding the records here involved can be worked out through patient consultation and cooperation between the parties.
Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning whether or not Mr. Cunningham advised the agency to disregard his original open records request. See 03-ORD-061. Nevertheless, we will address the substantive issues raised by Mr. Cunningham's appeal and as responded to by the Department in its supplemental response to the original request.
Secondly, the Department could properly deny Mr. Cunningham's request to inspect his "entire Parole Record. Given his confinement in the Fayette County Detention Center, he would be unable to make an on-site inspection of his parole record maintained at the Ninth District Probation & Parole Office located on 273 W. Main St., Lexington, KY 40507 and the agency is under no obligation to bring the original records to the Detention Center. 03-ORD-152.
Thirdly, certain records contained in an inmate's parole record are exempt from disclosure. Reports and records prepared by probation and parole officers in the discharge of their official duties are exempt from disclosure and cannot be provided under authority of KRS 439.510, in tandem with KRS 61.878(1)(l). 03-ORD-081. This would include the request for notes to incidents Mr. Cunningham reported to Officer Kelly, such as alleged thefts, threats, drug use, and a request to be placed on the move out list. Moreover, Department of Corrections could properly rely upon KRS 61.878(1)(i) and (j) in denying a request for copies of records or documents which had been sent to the Parole Board wherein individuals set forth personal opinions and recommendations as to whether a prisoner should be paroled. 93-ORD-136
Fourthly, the Department could properly deny Cunningham's request for "any other documents that contain a specific reference to me," because the request was not couched in sufficiently specific terms to permit the records custodian to determine what records the request encompasses and whether those records were exempt from disclosure. 02-ORD-226.
Finally, regarding those records that Mr. Cunningham specifically requested and were not exempt from disclosure, the Department advised that those records would be provided to him. Those records included: Parole Certificate dated 3/05/2004, Conditions of Parole witnessed 3/08/2004. Conditions of Supervisions dated 3/10/2004 (this is the "contract" to which Mr. Cunningham refers), Notice of discharge dated 3/09/2004, Parole Violation Warrant dated 7/16/2004, Preliminary Hearing Notices dated 1/21/2005 and 2/07/2005, and Parole Revocation Preliminary Hearing Findings of Fact dated 2/23/2005. Since these records were provided to Mr. Cunningham, his appeal as to these records is moot. 40 KAR 1:030, Section 6; 04-ORD-134.
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.
Eric CunninghamFayette County Detention Center600 Old Frankfort PikeLexington, KY 40510
Bobby KellyProbation and Parole Commonwealth Building573 W. Main StreetLexington, KY 40507
Emily DennisDepartment of Corrections2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400