Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Alfred Hawks' request for "one copy of ALL parole risk assessments perfected relevant to ALL parole hearings in my case." In a timely written response, Marc Abelove, Offender Information Specialist implicitly denied Mr. Hawks' request, paraphrasing the language of KRS 61.878(1)(i) and (j) (affording protection to preliminary drafts and notes, and preliminary recommendations and memoranda, respectively), and referencing, by example, "pre-classification work sheets, pre-parole progress reports," and "notes made by staff which [are not] intended to give notice of final action of a public agency. " Noting that he was "informed of the Risk Assessment results immediately after being interviewed, and the results read that I would be a very good parole risk[,]" Mr. Hawks initiated this appeal from the denial of his request shortly thereafter. Although the KSR initially violated KRS 61.880(1), its ultimate disposition of Mr. Hawks' request is consistent with governing precedents.
Upon receiving notification of Mr. Hawks' appeal from this office, Staff Attorney Leigh K. Meredith, Justice and Public Safety Cabinet, responded on behalf of the KSR. As correctly explained by Ms. Meredith:
First, Mr. Hawks' parole risk assessment was prepared by Mr. Joe Salisbury, a parole officer and therefore qualifies for exclusion under KRS 61.878(1)(l)[footnote omitted] and KRS 439.510. "All information obtained in the discharge of official duty by any probation or parole officer shall be privileged. . . ." KRS 439.510. See Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987); See 05-ORD-076; 01-ORD-13. In support of this position, it is important to note that Mr. Hawks addressed his initial open records request to the Parole Officer at KSR. . . . However, the parole risk assessment records are exempt from inspection.
In addition, KSR correctly asserts that parole risk assessments may be preliminary in nature and exempt under KRS 61.878(1)(j). See 05-ORD-076, citing 99-ORD-114, 01-ORD-13. KRS 61.878(1)(j) exempts "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended," including those opinions formulated by an institutional parole officer. See 05-ORD-076; See also 05-ORD-001, citing OAG 91-97 and OAG 87-21.
Based upon the foregoing, Ms. Meredith believes the denial of Mr. Hawks' request should be affirmed; this office agrees in accordance with prior decisions interpreting KRS 439.510.
As a public agency, the KSR must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
(Emphasis added). In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.
Here, the requisite brief explanation of how the statutory exception(s) relied upon by the KSR applies to the record(s) withheld is lacking from the agency's initial response. Public agencies must cite the applicable exception, and provide a brief explanation of how that exception applies to the records or portions thereof withheld per KRS 61.880(1) in order to satisfy the burden of proof imposed by KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted] , and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. Similarly, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. In relying upon KRS 61.878(1)(i) and (j), 1 the KSR merely referenced these provisions without further explanation. Bearing in mind that public agencies like the KSR have the burden of proof in denying requests under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that the initial response of the KSR was procedurally deficient.
Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests, the KSR should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-080; 02-ORD-187. That being said, the KSR has remedied this error on appeal; its final response is both substantively and procedurally correct.
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 the "parole risk assessments" requested by Mr. Hawks fall within the parameters of KRS 439.510, the KSR correctly relied upon this privilege in denying Mr. Hawks' request. In our view, the analysis contained in 99-ORD-114 and 01-ORD-97 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. See 05-ORD-035 (adopting 01-ORD-97 in holding that requested assessment report and reassessment reports prepared by parole officers fall within the parameters of KRS 439.510); 08-ORD-088. With the exception of the noted procedural violation, this office finds no error in the agency'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.
Distributed to:
Alfred Hawks, #081525Marc AbeloveLeigh K. Meredith
Footnotes
Footnotes
1 See 08-ORD-098, pp. 6-11, for the analysis generally employed by this office relative to KRS 61.878(1)(i) and (j). Although the records in question could also be properly withheld under these statutory exceptions, assuming they were not adopted as a basis for any final action, further discussion of this argument is unnecessary given our conclusion as to KRS 439.510.