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 State Police properly relied on KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), in denying Walter Long's undated request for the "papers [he] signed when [he] was released from prison in April 1998 requiring [him] to register as a sex offender. " For the reasons that follow, we affirm KSP's denial of Mr. Long's request.
In a response dated January 20, 2009, KSP identified "two public records in [its] possession [that were] potentially responsive to [Mr. Long's] request: (1) 'Sex Offender Register Entry Form'; and (2) 'Sex Offender Register Modification Form.'" Relying on KRS 439.510 , KSP denied access to both "because they were prepared by Probation & Parole officers." Shortly thereafter Mr. Long initiated this appeal, characterizing the records sought as "the rules and the conditions for registering as a sex offender, " which were explained to him at the time of release and to which he affixed his signature, signifying his understanding of those rules and conditions.
By letter dated February 9, 2009, KSP reaffirmed its position, reiterating that the requested forms are "completed by employees of the Division of Probation and Parole . . .," and that they are "not subject to release due to the operation of KRS 439.510 in conjunction with KRS 61.878(1)(l)." In support, KSP cited a series of prior decisions of this office. Mr. Long again challenged KSP's position in subsequent correspondence, attempting to distinguish the referenced open records decisions and noting that at least one of the forms, namely, the "Sex Offender Register Entry Form" was prepared by staff at Luther Luckett Correctional Complex and not by a probation and parole officer. Given the broad scope of the confidentiality provision found at KRS 439.510, we find his arguments unpersuasive. Because Mr. Long stands in the same shoes as all other requesters under the Open Records Act, the prohibition on disclosure found at KRS 439.510 extends to him as it would to any other member of the public.
KRS 439.510 1 stipulates:
All information obtained in the discharge of official duty by any probation or 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, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. Information shall be made available to sex offender treatment programs operated or approved by the Department of Corrections or the Department for Mental Health and Mental Retardation Services who request the information in the course of conducting an evaluation or treatment pursuant to KRS 439.265(6), 532.045(3), or 532.050(4).
Unauthorized disclosure of records that fall within the ambit of this confidentiality provision is deemed a misdemeanor, punishable by a fine not exceeding $ 500 or imprisonment not exceeding one year, or both. KRS 439.990(3). 2
Although it is unclear whether the records to which Mr. Long requests access are indeed those identified by KSP as "potentially responsive" to his request, insofar as they do not appear to state the conditions of his release as a sex offender, 3 it is clear that they constitute "information obtained in the discharge of official duty by a probation or parole officer" within the meaning of KRS 439.510. The Records Description and Analysis Sheet for Records Series 05454, Sex Offender Files, found on the Records Retention Schedule for the Justice and Public Safety Cabinet, Department of Corrections/Probation, a copy of which is attached, indicates that the files consist of, inter alia, Sex Offender Registry Entry Forms and Sex Offender Registry Modification Forms. They are identified as "input records," or records that "flow into, or provide information to create," the sex offender file maintained by Probation and Parole. Thus, the forms are "information obtained in the discharge of official duty by any probation and parole officer, " regardless of whether they are "prepared" or "created" by a probation and parole officer. The emphasis both KSP and Mr. Long place on this purported requirement, KSP to prove the propriety of the invocation of KRS 439.510 and Mr. Long to disprove the propriety of the invocation of KRS 439.510, is therefore misplaced. Because the forms contain information obtained by probation and parole officers in the discharge of their official duties, KRS 439.510 extends to them by its express terms. Because KRS 439.510 does not limit to Probation and Parole Officers the restriction on disclosure of the forms, and KRS 439.990 imposes penalties on " any person who willfully violates any of the provisions of . . . KRS 439.510 . . .," (emphasis added), we must conclude that KSP is bound by the provision. Because Mr. Long stands in the same shoes as any other open records requester, he enjoys no greater entitlement to the forms under the Act. 4 Zink v. Commonwealth, 902 S.W.2d 825 (Ky.App. 1994).
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.
Walter Long, # 175045Sgt. Brian D. SumnerShiann D. SharpeRoger G. Wright
Footnotes
Footnotes
1 As noted, KRS 439.510 is incorporated into the Open Records Act by KRS 61.878(1)(l), which requires agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 KRS 439.990(3) thus provides:
Any person who willfully violates any of the provisions of KRS 439.500 or 439.510 shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars ($ 500) or imprisonment not exceeding one (1) year, or both. It shall be the duty of the commissioner to dismiss from office or employment any officer or other employee of the department convicted for violating any of the provisions of KRS 439.500.
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3 Pursuant to KRS 61.880(2)(c), this office requested and obtained copies of the forms from KSP. Much of the handwritten material that appears on the forms is illegible. The remainder is of a factual nature.
4 We find unpersuasive Mr. Long's attempt to distinguish the requested records from the records at issue in the open records decisions cited by KSP. He asserts that the records at issue in the cited decisions contained opinion and personal recommendation, and that because the disputed forms do not, they are distinguishable. KRS 439.510 does not condition nondisclosure of records within its ambit to records containing opinion and recommendation, and his argument, in this regard, is therefore flawed. Compare, KRS 530.050 as interpreted in Commonwealth v. Bush, 740 S.W.2d 943 (Ky. 1987).
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