Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Parole Board, an autonomous agency attached to the Justice and Public Safety Cabinet for administrative and support purposes, violated the Open Records Act in the disposition of Roy A. Brockett's June 17, 2008, request for records maintained by the Parole Board in his "permanent parole board file, as stated in KRS 439.340(6)." For the reasons that follow, we affirm the Board's denial of Mr. Brockett's request on the basis that it does not maintain records responsive to that request, and its referral of Mr. Brockett to the Offender Information Services Branch of the Kentucky Department of Corrections pursuant to KRS 61.872(5).
In his letter of appeal, Mr. Brockett complains that the Board is statutorily required to maintain the requested records. He relies on the language that appears in KRS 439.340(6), requiring the Board to "retain all comments in the prisoner's permanent Parole Board file, and . . . consider them in conjunction with any subsequent parole decisions affecting the prisoner, " questioning the Board's assertion that the records are maintained by Offender Information Services.
In supplemental correspondence directed to this office following commencement of Mr. Brockett's appeal, Justice and Public Safety Cabinet Assistant General Counsel Amy V. Barker explained that the Parole Board "does not maintain separate record files for all of the records it receives or generates," indicating that they are instead "maintained in the Department of Corrections Offender Information Services offender record folders as paper or electronic documents." Continuing, she observed:
In reviewing Mr. Brockett's file, DOC Offender Information Services located a paper file and several electronic records of the Parole Board. The paper file is maintained in the custody of the DOC and the Parole Board properly responded by directing Mr. Brockett to the Branch Manager (Julie Thomas) of the DOC Offender Information Services as indicated above to request those records. See 05-ORD-013.
Ms. Barker thereafter secured the electronic records from Offender Information Services and provided Mr. Brockett with copies. Without waiving the right to assert the applicable exemptions, Ms. Barker also released protected paper records to Mr. Brockett "to resolve this request while the Parole Board reviews its records procedures and retention schedule." Shortly thereafter, Mr. Brockett raised continuing objections to the Parole Board's disposition of his request, reasserting his view that the Board is statutorily obligated to "retain all comments in the prisoner's permanent Parole Board file," and objecting to the paucity of records released to him. Noting that his "has been an ongoing file from 1987," he asked: "Where are all the records before March 28, 2008."
Mr. Brockett's argument is largely postulated on the language that appears at KRS 439.340(6) which states:
The board shall retain all comments in the prisoner's permanent Parole Board file, and shall consider them in conjunction with any subsequent parole decisions affecting the prisoner . . . The board shall receive and consider all comments, shall make a record of them which it shall retain in the prisoner's permanent Parole Board file, and shall consider them in conjunction with any subsequent parole decision affecting the prisoner.
Although Mr. Brockett characterizes this language as a recent revision to the law, citing House Bill 683, Chapter 158, it appeared in earlier iterations of KRS 439.340(6) and does not reflect a change in the law. 1 Accordingly, it does not impose new or additional duties on the Parole Board relative to recordkeeping.
As noted, the Parole Board is constituted as an autonomous agency attached to the Justice and Public Safety Cabinet for administrative and support services that apparently include recordkeeping. KRS 439.320(1). ("The board shall be attached to the Justice and Public Safety Cabinet for administrative purposes only. The Department of Corrections shall provide any clerical, stenographic, administrative, and expert staff assistance the board deems necessary to carry out its duties.") This "clerical" and "administrative" assistance extends to managing some of the Board's records.
As evidenced by the attached retention schedules, records documenting "recommendations of the Board as to whether an inmate's eligibility for parole should be deferred until a later date, or whether he/she should serve out the entire sentence" must be "transfer[red] to the Department of Corrections, Offender Records Section, for inclusion in the Offender Record, 02982, upon final disposition." Justice and Public Safety Cabinet Records Retention Schedule, Parole Board, Series 04484. 2 Records Series 02982 of the Justice and Public Safety Records Retention Schedule, Department of Corrections, establishes the Offender Record-Master File which documents the incarceration of persons in all adult correctional institutions in Kentucky. It "is used to track the progress of each inmate throughout their stay in the correctional system in Kentucky . . . [and] stays active until the inmate is released or paroled . . . becom[ing] inactive when all time and probation has been served." (Emphasis added.)
Records Series 02982 corresponds to Records Series 03016, Institutional Inmate File, insofar as the original or a copy of any record added to the Inmate File is sent to the central office for inclusion in the Offender Record, including, inter alia, parole board action sheets, parole reports, parole plans, employment placement verifications reports, parole certificates, results of preliminary violation hearings, receipt for return of parole violations, parole violation transport authorization forms, parole violation warrants, and revocation of parole hearing forms. The records to which Mr. Brockett requested access are reposed, correctly or incorrectly, in his Offender Record, and maintained by the Offender Information Services Branch of the Kentucky Department of Corrections. The Parole Board discharged its statutory function under KRS 61.872(4) 3 by notifying Mr. Brockett that it did not "have custody or control of the public record [s] requested" and "furnish [ing] him with the name and location of the official custodian of the agency's public records. " Having done so, the Board fulfilled its duty under the Open Records Act.
Because the Justice and Public Safety Cabinet's Office of Legal Services provides assistance to the Parole Board, that office received notice of Mr. Brockett's appeal and responded by releasing records responsive to his request, acknowledging that it was "not clear which specific records Mr. Brockett [sought] since he only refer[red] to the statute that pertains to comment letters." "To resolve this request while the Parole Board reviews its records procedures and retention schedule," the Office of Legal Services elected this course of action even though some of the records released enjoyed statutory protection. If the records released are not, as he indicates, the records he seeks, Mr. Brockett may submit a new request to the Offender Information Services Branch of the Department of Corrections, identifying with greater specificity the actual records sought, and await a timely response from that Branch. Should the Branch deny all or any portion of his new request, Mr. Brockett can appeal that denial to the Attorney General or the circuit court, but should bear in mind that it is not the function of this office to dictate the records management practices of an autonomous public agency.
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 Subsection (6) of KRS 439.340 was not amended, in any fashion, by the General Assembly in 2008. The revisions to that statute were confined to subsections (1), (2), (5), (10), (11), and (12) and have no bearing on the question of recordkeeping.
2 The referenced schedules are established by the Archives and Records Commission under authority of KRS 171.420(3) and promulgated into regulation at 725 KAR 1:061.
3 KRS 61.872(4) thus provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.