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 Department of Corrections violated the Open Records Act in its disposition of the July 7, 2006 request of John Jagoe to inspect "One copy each of a letter written by the Commissioner, John Rees, to the Parole Board on my behalf; and one copy of a letter written on my behalf by the Warden, Tom Dailey of the Luther Luckett Corr. Comp." For the reasons that follow, we conclude that, with the exception of a procedural violation, the Department properly denied Mr. Jagoe's request.
By letter dated July 25, 2006, Melissa Harrod, Administrator, Offender Information Services, Department of Corrections, denied this request stating:
Under KRS 61.878(1)(i) and (j), the Department may deny a request for copies of preliminary documents containing opinions, observation, and recommendations, which are not incorporated into or reflecting final agency action. Correspondence between third parties and Correction's staff regarding you that are not intended to give notice of final action of the agency cannot be provided because they are exempt. See 00-ORD-3; 98-ORD-27. Therefore, your request is denied.
Subsequently, Mr. Jagoe initiated the instant appeal in which he complains that the Department's initial response was untimely and he should receive copies of the letters because he was mentioned in the letters he requested
After receipt of Notification of the Appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, responding on behalf of the Department, provided this office with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
The DOC OIS does not dispute that the response to Mr. Jagoe's request was untimely. As explained to me by Ms. Harrod, Mr. Jagoe's request was received on July 7, 2006, but was then misplaced on the desk of an administrative specialist who formerly worked for DOC OIS, however, transferred to a different division of the DOC effective July 15, 2006. Under KRS 197.025(7), the DOC must determine within Five (5) business days following receipt of the request, whether the record shall be released. Therefore, the DOC OIS response should have been sent to Mr. Jagoe no later that Friday, July 14, 2006. The DOC OIS concedes this is a violation of the Open Records Act.
However, Ms. Harrod's final response to Mr. Jagoe should be affirmed as substantively correct. Letters to the Kentucky Parole Board, whether from members of the private sector or public officials, are preliminary records expressing opinions, observations, and recommendations, which are exempt from disclosure unless incorporated into final agency action. See KRS 61.878(1)(i) and KRS 61.878(1)(j). Your decision in 02-ORD-138 was directly on point for this issue, concluding that ". . . the Department properly denied [an inmate's] requests for a copy of any letters submitted to the Parole Board relative to his prospects of parole. " Since the letters of recommendation requested by Mr. Jagoe were not incorporated in the Parole Board's final decision to revoke parole, there is no basis upon which to conclude that the DOC OIS violated the Kentucky Open Records Act by denying Mr. Jagoe's request for records.
We are asked to determine if the Department's denial of Mr. Jagoe's request violated the Open Records Act. For the reasons that follow, we conclude it did not.
61.878(1)(i) and (j) authorize the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 02-ORD-138, we held that the Department of Corrections properly relied upon KRS 61.878(1)(i) and (j) in denying an inmate's request for copies letters written to the Parole Board on his behalf as none of the letters had been adopted as part of the Parole Board's decision concerning him. In 93-ORD-136, citing 93-ORD-1, we observed:
In 93-ORD-1 . . . we said that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In addition, we also stated that a letter from a person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection under KRS 61.878(1)(h) and (i) [now codified as KRS 61.878(1)(i) and (j)] unless incorporated into or made a part of the Parole Board's final action relative to eligibility for parole.
In its supplemental response, the Department indicated that none of the requested letters were adopted as part of the Parole Board's decision to revoke parole. Accordingly, we conclude that, under the authority of KRS 61.878(1)(i) and (j) and prior opinions of this office, the Department properly denied Mr. Jagoe's request for a copy of letters submitted to the Parole Board relative to his parole. 02-ORD-138; 93-ORD-136; 93-ORD-1.
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 conceded that a violation of the cited provision occurred in the request made by Mr. Jagoe, and we will not belabor 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.
John C. Jagoe, # 093548-LCLuther Luckett Correctional ComplexDawkins Road, Box 6LaGrange, KY 40031
Julie ThomasBranch ManagerOffender Information ServicesDepartment of Corrections 275 East Main StreetFrankfort, KY 40601
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Melissa Harrod, AdministratorOffender Information ServicesDepartment of Corrections275 East Main StreetFrankfort, KY 40601