Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The sole question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Kenneth Settles' request to inspect his pre-sentence investigation report (PSI). In a timely written response, KSR Offender Information Specialist advised Mr. Settles that his file was reviewed and it was determined that he did not waive his PSI when given the opportunity to "refute the actual contents at the time of sentencing" or waive his PSI "before final sentencing. " Accordingly, KSR denied Ms. Settles' request on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Upon receiving notification of Mr. Settles' appeal from this office, Amy Barker, Assistant General Counsel for the Justice and Public Safety Cabinet, responded on behalf of KSR, initially acknowledging that Mr. Abelove mistakenly cited a nonexistent section of CPP 28-01-09 as further support for the agency's denial though the cited CPP is relevant. Ms. Barker also confirmed that Mr. Settles' "Judgment of Conviction and Sentence indicates that he was provided the factual contents of his presentence investigation and given the opportunity to controvert the factual contents." Because Mr. Settles did not waive his PSI, Ms. Barker continued, "he is not entitled to a redacted copy of the PSI pursuant to KRS 61.878(1)(l) and KRS 439.510." See
Commonwealth of Kentucky v. Bush, 740 S.W.2d 943 (Ky. 1987). This assertion is entirely correct. 1
Numerous decisions by the Attorney General validate KSR's position, as Ms. Barker correctly observed. This office finds that 00-ORD-221 (pp. 2-3), a copy of which is attached hereto and incorporated by reference, is controlling on the sole question presented. Pursuant to KRS 439.510 and KRS 61.878(1)(l), Mr. Settles is not entitled to review his PSI. The denial by KSR is affirmed.
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.
Kenneth Settles, # 194902Marc AbeloveAmy V. Barker
Footnotes
Footnotes
1 Ms. Barker also correctly advised that Mr. Settles' citation of the Freedom of Information Act does not alter this conclusion. To the contrary, this office has repeatedly noted that FOIA "has no force as to state records, only the records of federal agencies." 96-ORD-244, p. 2 (citation omitted).