Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in the context of an Open Records appeal, and the Attorney General being sufficiently advised, this office finds that the Jefferson County Division of Probation and Parole did not violate the Kentucky Open Records Act in denying Joseph L. Silverburg's written request for various records and information relative to his proposed "home placement. " 1 Upon receiving notification of Mr. Silverburg's appeal from this office, Staff Attorney Leigh K. Meredith, Department of Corrections, responded on behalf of the Division, initially acknowledging its failure to comply with KRS 197.025(7) 2 and explaining that she took steps to ensure that future violations do not occur. Because KRS 439.510 expressly prohibits disclosure of the records in dispute, as Ms. Meredith further asserted, the agency's ultimate disposition of Mr. Silverburg's request is otherwise affirmed.
All of the existing 3 records which are responsive to Mr. Silverburg's request fall within the parameters of KRS 439.510, incorporated into the Act by operation of KRS 61.878(1)(l), and therefore "shall not be disclosed directly or indirectly to any person other than the court, board or cabinet"; accordingly, the Division cannot be said to have violated the Act in denying Mr. Silverburg's request on the basis of this privilege. 4 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. See 08-ORD-198 (affirming denial by Division of request for documentation relating to requester's "home and job placement . . . for [his] parole dated 06-07-05" on the basis of KRS 439.510); 01-ORD-52 (Marion Adjustment Center properly relied upon KRS 439.510 in denying access to requested memorandum prepared by parole officer that was attached to "home placement letter"). See also 08-ORD-088. Given our resolution of this issue, further consideration of the Division's remaining arguments 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.
Joseph L. Silverburg, # 15168Laura SurbeckLeigh K. Meredith
Footnotes
Footnotes
1 Mr. Silverburg requested a copy of Parole Officer Laura Surbeck's "office's investigation and interview with Ms. Elberta Jones, and the home[]placement offered by Ms. Jones, . . . date and time you visited the apartment at 5127 Quail Court," the name of Ms. Surbeck's immediate supervisor, and the report she provided to her supervisor "as the basis for denying [his] submitted home[]placement, " "any and all reports" Ms. Surbeck submitted to her immediate supervisor, "whether written or [verbal]," the name of "the Assistant Director of Probation and Parole, for the purposes of naming him and [her] immediate supervisor" in his recent lawsuit, and "any and all other reasons that formed the basis" of her "denial of [his] submitted home[]placement, . . . ."
2 Because the Division has explained that it "mistakenly believed" Mr. Silverburg's request "to be a complaint letter not an open records request" based on his "multiple requests for information," and has acknowledged that a response to his March 20, 2009, request, which it received on March 25, should have been issued "no later than April 1, 2009," in order to comply with KRS 197.025(7), this office will not belabor the issue.
3 To the extent certain reports have not been completed, the Division correctly observed that a public agency "cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98." Nor must a public agency "prove a negative" in order to refute a claim that certain records exist under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-341 (2005). On this issue, the analysis contained in 07-ORD-188 and 07-ORD-190 is controlling. In any event, such records are protected under KRS 439.510.
4 Ms. Meredith additionally notes that requests for dates, times, and names are improperly framed as requests for information that do not have to be honored. 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).