Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Penitentiary violated the Kentucky Open Records Act in denying the request of Charles S. McDonald to receive a copy of his pre-sentence investigation report. Citing Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987), and "Corrections Policies and Procedures 28-01-09, April Brown, Offender Information Specialist, advised Mr. McDonald that "the factual contents and conclusions contained in a waived PSI may be released" in a timely written response. In addition, Ms. Brown correctly observed that KRS 532.050(1) authorizes delaying completion of the PSI "until after sentencing upon written request of the defendant." Having reviewed Mr. McDonald's file, KSP was unable to determine whether Mr. McDonald had waived his PSI. Accordingly, KSP permitted Mr. McDonald to view the factual content of his PSI on February 22, 2005. Based on the following, this office finds no error in the actions of KSP relative to Mr. McDonald's request.
By letter dated April 24, 2005, Mr. McDonald initiated this appeal, arguing that he waived the PSI "in order to get to the prison sooner after [he] was convicted." Upon receiving notification of Mr. McDonald's appeal, Emily Dennis, Department of Corrections Staff Attorney, responded on behalf of KSP. As observed by Ms. Dennis:
What Mr. McDonald had failed to disclose to the Attorney General's Office was that on 2/22/05, he was provided an opportunity to review the factual contents of his PSI pursuant to a request he made on 2/16/05. Furthermore, after the alleged denial of copies, Mr. McDonald was provided a second opportunity to review the PSI due to his letter to KSP Deputy Warden Nancy Doom stating that he did not have ample [time] to review the PSI on 2/22/05. His second viewing was held on 4/7/05 and he signed an acknowledgement that stated as follows:
Between February 22, 2005, and April 7, 2005, Offender Information Supervisor Nancy Duncan advised Mr. McDonald "that the PSI is privileged by statute and exempt from disclosure under KRS 61.878(1)(l)." Attached to KSP's supplemental response are copies of the correspondence to which Ms. Dennis refers, all of which supports her position. Relying upon 05-ORD-031, a copy of which is attached hereto and incorporated by reference, Ms. Dennis correctly argues that the Attorney General has held that an inmate is not entitled to obtain a copy of his PSI pursuant to KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). As evidenced by the record, KSP "has exceeded its duty to provide Mr. McDonald an opportunity to review the factual content" of his PSI." 1 We agree.
In 00-ORD-221, a copy of which is attached hereto and incorporated by reference, this office conclusively resolved the sole issue presented for review. See 04-ORD-224; 03-ORD-228; 03-ORD-198; 00-ORD-85; 96-ORD-147. Assuming that Mr. McDonald waived his PSI as indicated, KSP was required to provide him with the opportunity to view the factual contents and conclusions therein - KSP did that not once, but twice. Nothing more is required. Because the position of KSP is entirely consistent with governing precedent, its denial of Mr. McDonald's request is affirmed.
A party aggrieved by this decision may appeal it by initiating an 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.
Charles S. McDonald, # 032375Kentucky State Penitentiary, 51E-16P.O. Box 5128Eddyville, KY 42038
Nancy DuncanOffender Information SupervisorKentucky State PenitentiaryP.O. Box 5128Eddyville, KY 42038
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400
Footnotes
Footnotes
1 Citing KRS 197.025(3), Ms. Dennis also contends that Mr. McDonald's appeal would be time-barred, as it was filed more than twenty days following the initial denial, "[b]ut for all the correspondence provided by Ms. Duncan relative to this appeal." On this issue, 04-ORD-178, a copy of which is attached hereto and incorporated by reference, is controlling. Because the request attached to Mr. McDonald's letter of appeal is dated February 23, 3005, and Mr. McDonald did not initiate the instant appeal until April 25, 2005, Ms. Dennis's assertion appears to be correct. In light of the convoluted factual history, this office nevertheless addresses Mr. McDonald's appeal on the merits.
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