Request By:
Taquan Neblett, # 119028
Kimberly Potter-Blair
Emily Dennis
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Department of Corrections, Division of Probation and Parole, District Nine violated the Kentucky Open Records Act in denying Taquan Neblett's request for "[a]ny and all documentation regarding [Officer John Sumpter's] involvement with the Lexington Police, or any other agency concerning any investigation or arrest that was a result of your [coop]eration with that agency" and his request for "[a]ny and all documentation concerning [Officer Ron Robinson's] involvement with Lester D. Peoples on 7-13-04 or 7-14-04 in regard to the investigation by the Lexington Police or any other agency about my whereabouts on those days." Although the Division failed to comply with KRS 197.025(7) by issuing a written response within five business days, the Division has acknowledged this error on appeal. Because KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), expressly prohibits disclosure of such records, the Division properly relied upon this provision as the ultimate basis for denying Mr. Neblett's request.
On February 28, 2008, Mr. Neblett submitted two separate requests addressed to Officer Sumpter and Officer Robinson, essentially asking to inspect any and all documentation regarding the involvement of the District Nine Probation and Parole Office with an individual named Lester D. Peoples, who was allegedly interviewed about his relationship with Mr. Neblett and his possible knowledge of Mr. Neblett's whereabouts on the dates in question. Having received no written response to either of his written requests, Mr. Neblett initiated this appeal by letter dated April 2, 2008.
Upon receiving notification of Mr. Neblett's appeal from this office, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, DOC, responded on behalf of the District Nine Probation and Parole Office, acknowledging that upon review of his complaint and requests, and her correspondence "from former District Nine Supervisor, Kim Potter-Blair," it was clear that Ms. Potter-Blair "was awaiting the legal opinion of the undersigned prior to responding to Mr. Neblett's request. Ms. Potter-Blair's failure to respond was not willful or made in bad faith, but rather was inadvertent. . . ." 1 In addressing the merits of Mr. Neblett's appeal, Ms. Dennis explains:
The Division of Probation and Parole for the Kentucky Department of Corrections has no obligation to provide Mr. Neblett with information, 2 and furthermore will neither confirm nor deny Mr. Neblett's allegations regarding Mr. Peoples. In addition, KRS 439.510 provides a privilege for all information obtained in the discharge of official duty by any probation or parole officer. Absent an order from a court of law, the Kentucky Parole Board, or the Department of Corrections, such information shall not be disclosed directly or indirectly to any other person. This privilege applies to exempt from disclosure public records containing the information requested by Mr. Neblett as an enactment of the General Assembly under KRS 61.878(1)(l).
KRS 61.878(1)(l) and KRS 439.510 also apply to exempt from disclosure any and all written documentation regarding Probation and Parole Officer John Sumpter's involvement with the Lexington Police (if any), or any other agency concerning any investigation or arrest that was the result of cooperation between the Division of Probation and Parole and Lexington police. Moreover, Mr. Neblett is not entitled to records relating to Lester Peoples' revocation, because disclosure of one convicted felon's probation and parole records to another inmate constitutes a threat to the security of the institution and those persons confined therein (See KRS 197.025(1) and KRS 61.878(1)(l)).
As correctly summarized by Ms. Dennis, "there is no question but that the Division of Probation and Parole, District Nine failed to respond to Mr. Neblett's request in compliance with the Open Records Act. However, Mr. Neblett is not entitled to the records he requested" for the reasons set forth above. 3
Among those records excluded from application of the Open Records Act by operation of KRS 61.878(1) are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l). As noted, KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides:
All information obtained in the discharge of official duty by any probation and parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board or cabinet.
In construing this provision, the Attorney General has observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987), the Kentucky Supreme Court suggested that its purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." In Bush , above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his pre-sentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court's decision in Bush , above, in OAG 88-14 the Attorney General affirmed the agency's denial of an inmate's access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a "special report" prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for pre-sentence investigation reports).
01-ORD-97, p. 4. In 01-ORD-97, this office upheld a decision by the Division to withhold "contemporaneous handwritten notes" prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that such records "[fell] squarely within the parameters of the privilege established at KRS 439.510." 01-ORD-97, p. 4.
Because "any and all documentation" or information related to Lester D. Peoples, or the involvement of either named officer with the Lexington Fayette Urban County Government Division of Police, or any other agency concerning any investigation or arrest resulting from cooperation between the Division of Probation and Parole and the Division of Police also falls within the parameters of KRS 439.510, the Division of Probation and Parole, District Nine correctly relied upon this privilege in belatedly denying Mr. Neblett's request. In our view, the analysis contained in 01-ORD-97 and 05-ORD-265 relative to application of KRS 439.510 is equally controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. Given our resolution of this issue, consideration of the Division's argument regarding KRS 197.025(1) is unnecessary. With the exception of the noted procedural violation, this office finds no error in the Division's response.
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 Because the Division has acknowledged this error, and the record is devoid of evidence to contradict Ms. Dennis' assertion, this office will not belabor the issue. See 05-ORD-064, pp. 3-6 relative to application of KRS 61.880(1) (and KRS 197.025(7) aside from time frame) generally.
2 As long recognized by the Attorney General, "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3. See 06-ORD-096, pp. 9-12. See also 05-ORD-080 (application of KRS 61.872(3) in correctional setting).
3 By letters dated April 17, 2008, and April 21, 2008, respectively, Mr. Neblett replied to a belated response from Ms. Potter-Blair dated March 28, 2008, and Ms. Dennis' response dated April 15, 2008, which are largely similar as to KRS 439.510; Mr. Neblett misinterprets both responses, in short, and nothing in his reply alters our analysis or conclusion.