Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Kentucky Open Records Act in denying the August 23, 2011, request of Benjamin P. Martin, Paralegal, Department of Public Advocacy, for "a completed copy of any State of Kentucky Parole Guidelines Risk and Needs Assessment Form" 1 completed for seventeen named inmates. 2 In a timely written response, Melissa Harrod, Administrator, Offender Information Services, denied Mr. Martin's request on behalf of the Department of Corrections, advising that "Parole Board Risk Assessments are exempt from disclosure per KRS 61.878(1)(j)," and the DOC "may deny a request to inspect or copy pre-parole progress reports and parole guidelines risk assessment forms, as these records constitute preliminary internal memoranda containing opinions, observations, and recommendations, which are not incorporated into" and do not "reflect final agency action." Noting that "this form is an objective scoring form, which gives points to the inmate based on both static and dynamic factors," and KRS 61.878(1)(j) therefore does not apply because "no individual opinions are contained in the document," Timothy G. Arnold, Director of the Post-Trial Division, initiated this appeal. Mr. Arnold correctly observed that under existing law, even if KRS 61.878(1)(j) is deemed applicable, the dispositive question is whether the agency has taken final action regarding the matter "and if so, whether that action could reasonably be taken to adopt the contents of the document." 3 DPA preemptively contended that KRS 439.510 does not apply as the "preparation of a risk assessment is not conducted by an employee of the [DOC], Division of Probation and Parole, nor is it completed by somebody with analogous job duties. " While this office agrees with DPA that "[t]he mere fact that it relates to parole does not make it exempt under that statute," this office further agrees with DOC that KRS 439.510 focuses on the information contained in the document and how it was obtained rather than who prepared it; accordingly, KRS 439.510 is controlling and this office does not make any finding relative to KRS 61.878(1)(j) in this context.
On appeal Mr. Arnold quoted extensively from 08-ORD-136 (holding that parole risk assessments were protected under KRS 439.510), asserting that our decision was correct in holding that KRS 439.510 exempts from disclosure "records prepared by a 'probation and parole officer, '" but was "incorrect in assuming that parole risk assessment forms fall into that category." Mr. Arnold noted that KRS 439.480 "details the duties of 'probation and parole officers,' and does not list any duty related to gathering information after judgment but prior to the [Parole] Board's decision in an individual case." An employee of DOC, DPP does not prepare a risk assessment, Mr. Arnold further explained, "nor is it completed by somebody with analogous job duties. The mere fact that it relates to parole does not make it exempt under the statute, which as this agency noted, was probably intended to protect confidential sources of information."
Upon receiving notification of Mr. Arnold's appeal from this office, Staff Attorney Alea Amber Arnett responded on behalf of DOC. Ms. Arnett acknowledged that the "risk assessments at issue here were not completed by probation and parole officers," but further advised that the forms "were prepared with information obtained by probation and parole officers in the discharge of their duties." When Parole Board Specialists complete risk assessments, DOC explained, "they rely on the information in the pre-sentence investigation reports, the notes by the officers in the Kentucky Offender Management System ("KOMS"), and special supervision reports. All of this includes information obtained by probation and parole officers in the discharge of their official duties." Because KRS 439.510 prohibits both direct and indirect disclosure of such information, DOC asserted that KRS 439.510 is dispositive. DOC also noted that the privilege codified at KRS 439.510 "does not focus on the preparer of the document; it instead focuses on the information in the document and how that information was obtained. Furthermore, the willful violation of KRS 439.510 is a misdemeanor punishable by up to a year imprisonment. KRS 439.990(3)." DOC referenced prior decisions upholding denials on the basis of KRS 439.510, including 08-ORD-136, in support of its position.
DPA ultimately reiterated that KRS 439.510 "should be narrowly construed to apply to those officers performing the statutorily described functions" and that "apart from the 'other comments' section (which could have been redacted), the parole risk assessment form" does not contain "any information about sources or methods which might justify the need for confidentiality. " DOC advised that "there other sections of the risk assessment where the source of the information is identified as the presentence investigation report ("PSI"), which meets the exemption in KRS 439.510. Also, this exemption applies to the information obtained by probation and parole officers, not just to documents prepared by those officers." (Emphasis added.) Even if strictly construed, the agency concluded, KRS 439.510 "still focuses on the 'information' in a document, not the preparer of the document." The points and concerns of DPA, outlined in greater detail in subsequent correspondence, are well-taken; however, given the apparent legislative intent, as expressed using the broad language codified at KRS 439.510, this office finds the agency's interpretation reasonable and thus entitled to deference in the absence of binding legal authority to the contrary.
In response to another inquiry from this office, made pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and requesting insight regarding "what the distinction, if any, is between" the "pre-parole progress reports," "risk assessments," etc. dealt with in prior decisions and the Risk and Needs Assessment Form at issue, DOC clarified that a "pre-parole progress report is a report that is prepared by the parole officer to update the pre-sentence investigation report when the inmate is scheduled for a Parole Board hearing. It is exempt from disclosure pursuant to KRS 439.510." Ms. Arnett contrasted this description with that of the Risk and Needs Assessment Form at issue, which is a "tool that the Parole Board may take into consideration, but is not a reason for granting or denying parole. " This Form "was developed for the Board by outside experts employing various categories of static and dynamic information (e.g., age at time of hearing, current classification, level of education completed, most severe disciplinary report in last two years) that has a statistical relationship to recidivism." According to DOC, there is "also a risk assessment called an LSCMI. It is intended for use during the entire period of incarceration and supervision and is being phased in with the implementation of HB 463. It will eventually replace the use of the Board's risk assessment tool currently at issue: the Parole Guidelines Risk and Needs Assessment Form, which was called the Parole Guidelines Risk Assessment up until May/June of 2011."
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) . Resolution of this appeal turns on the application of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which:
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, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. . . .
(Emphasis added.)
As with any decision involving statutory application, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In so doing, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In the absence of a specific statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. , above. When viewed in light of these fundamental principles, the italicized language quoted above validates the interpretation of DOC.
This office has consistently deferred to agencies' reasonable interpretations of confidentiality provisions binding upon them absent binding legal authority to the contrary. 97-ORD-33 (deferring to Department of Corrections regarding interpretation of KRS 197.025(1)); 98-ORD-78 (deferring to then Revenue Cabinet regarding interpretation of KRS 131.190); 04-ORD-252 (deferring to Department of Workers' Claims regarding interpretation of KRS 342.229); 08-ORD-177 (deferring to Department of Financial Institutions regarding application of applicable federal regulations incorporated into Act by KRS 61.878(1)(k)); 09-ORD-058 (deferring to Education and Workforce Development Cabinet regarding interpretation of KRS 341.190(3) "absent express legal authority that is contrary"); 10-ORD-080 (deferring to Cabinet for Health and Family Services regarding interpretation of KRS 209.140 absent contrary legal authority) . See also 11-ORD-168 (adopting interpretation by KSP of critical statutory language codified at KRS 237.110(10) absent contrary legal authority) .
In disputing DOC's interpretation, DPA argued that in 08-ORD-136 this office wrongly assumed that parole risk assessment forms were prepared by probation and parole officers; however, in that case DOC expressly stated that the "parole risk assessments" requested were "prepared by . . . a parole officer. " 08-ORD-136, p. 2. Thus, it seems likely that perhaps a similar if different kind of assessment may have been at issue (though "one copy of all parole risk assessments perfected relevant to all parole hearings" in the requester's case was requested) and the record on appeal simply did not contain any basis to question the assertion by DOC or sufficient information for this office to independently and conclusively resolve semantic inconsistencies or discrepancies, if any, to justify a contrary determination. 4 In any event, our holding today rests on the literal and mandatory language of KRS 439.510, as reasonably interpreted by DOC, rather than exclusively or primarily on that otherwise controlling decision. 5
In 01-ORD-120, this office upheld the denial of a request by an inmate for "a copy of the exact dates and verification of [his] jail credit" in a specified case on the basis of KRS 439.510. This office noted that the records at issue "do not clearly qualify for protection from disclosure under the privilege since records verifying dates of an inmate's confinement and credit for time served do not reveal 'sources of confidential information,' nor do they reflect 'matters of opinion, and comments of a personal and factual nature. [
Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987)]." The records were, instead, "purely factual in nature," and thus nondisclosure of the records did not appear to serve "the purpose for which KRS 439.510 was enacted" in our view "notwithstanding the fact that the records were obtained by a parole and probation officer in the discharge of her official duty." 01-ORD-120, p. 3. Although the "Additional Comments" section of the Risk and Needs Assessment Form at issue clearly falls within the parameters of KRS 439.510, as DPA has acknowledged, the same concerns are implicated here with regard to information that is "purely factual," such as the "Current Offense," "Age at time of Parole Eligibility," "Current Classification Level," etc. also contained therein (which also cannot be properly characterized as "recommendations" or "memoranda" within the meaning of KRS 61.878(1)(j)). Now, as before, this office sees "no impediment to disclosure of" this kind of information. 6 01-ORD-120, p. 4. That said, this office must nevertheless "defer to the [DOC, Division of Probation and Parole] in its expansive construction" of this privilege. Id. Accordingly, the denial of Mr. Martin's request 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.
Distributed to:
Timothy G. ArnoldBenjamin J. MartinAlea Amber ArnettMelissa Harrod
Footnotes
Footnotes
1 This Form was previously entitled the "Parole Guidelines Risk Assessment Form [Revised: 02/2009]" and was apparently revised and renamed in July 2011, as indicated on the bottom of the current Form. While certainly not dispositive, both versions do indicate they are "For Parole Board Use Only and at Their Discretion. This is a Confidential Document."
2 The Department of Corrections ultimately advised that "risk assessments have not been completed for four inmates (numbers 4, 12, 15 and 16) due to ineligibility for parole for various reasons, including failure to complete the Sex Offender Treatment Program, a sentence of life without parole, and a parole eligibility date that has not yet passed." Because risk assessments are only prepared for inmates eligible for parole, DOC correctly observed, "they were not prepared for these four inmates and cannot be provided since they do not exist." A public agency such as DOC is not required to "prove a negative" in order to refute a claim that certain records exist under Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005). See, for example, 07-ORD-188 and 07-ORD-190.
3 In responding to Mr. Arnold's appeal, DOC asserted that none of the existing responsive forms were "mentioned, referenced, or adopted in the Parole Board's final action. " This office subsequently asked for clarification as to "whether the forms were adopted, in the relevant sense," noting "this agency has consistently held that information or documents can be implicitly adopted; in other words, the information or documents do not have to be 'incorporated.' See, for example, 08-ORD-098, p. 10." Suffice it to say that DOC promptly and thoroughly responded to this inquiry. A detailed exchange between this office and the parties regarding application of KRS 61.878(1)(j) in this context ultimately followed. While not recited here in the interest of brevity, it was given due consideration and is part of the record on appeal. Because KRS 439.510 is controlling, further discussion of KRS 61.878(1)(j) is unnecessary.
4 This office has confirmed that a copy of the actual form was not of record in that appeal. A review of the record in several other potentially applicable or somewhat relevant decisions, either cited by DOC or independently located in the course of conducting research for this appeal, confirmed that a copy of the actual form(s) in dispute was not of record and thus could not be used for purposes of comparison. DOC ultimately confirmed that the "initial assessment" and "reassessments" at issue in, for example, 05-ORD-035, are not the same as the form(s) at issue in this case nor, as previously explained, are the pre-parole progress reports also dealt with in prior decisions. However, in 05-ORD-076, this office upheld the denial of access to "parole guidelines assessment forms" per KRS 61.878(1)(j) as construed in 01-ORD-13. See 01-ORD-97 (affirming denial of request for parole officer's "contemporaneous handwritten notes" and other documents "relating to this matter" pursuant to KRS 439.510).
5 Because the parties are both clearly familiar with existing precedents governing application of KRS 439.510 generally, including 08-ORD-136, this office will not unnecessarily lengthen the instant decision with a summary of the authorities referenced therein, but instead refers the reader to pp. 5-6 of that decision.
6 In Tabor v. Commonwealth, 625 S.W.2d 571 (Ky. 1981), the Kentucky Supreme Court was asked to determine whether the "trial court erroneously permitted a parole officer to testify in the persistent felony offender phase of the trial." Tabor contended that the parole officer's testimony establishing the status information required to prove charges under KRS 532.080 (persistent felony offender statute) violated KRS 439.510. However, the Court held that the content of the testimony did not fall within the privilege codified at KRS 439.510 and thus "may be testified to by any witness including probation and parole officers." Tabor at 573. The Court reasoned that adopting Tabor's argument regarding KRS 439.510 could result in that statute being construed to render the information itself privileged once a probation and parole officer has obtained it and thus prevent anyone from testifying as to it, rendering KRS 532.080 a nullity. Id. at 572. Tabor addresses the application of KRS 439.510 specifically in the context of witness testimony in a court (which can order disclosure) and the interplay between that privilege and KRS 532.080. The Court noted that under a literal interpretation of the former, the latter would be "unenforce[a]ble for the reason that the essential elements of the charge are comprised of information ordinarily obtained by a probation and parole office." Id. at 571-572.
While Tabor is not directly on point factually, the discussion relating to privileges generally (including the four conditions that "give rise to the reason for an exception to the proposition that all persons are duty bound to give testimony upon all facts inquired of in a court of justice "), which led the Court to conclude that the legislature "intended KRS 439.510 to be a 'privilege' statute consistent with some or all of the conditions ordinarily present to warrant a privileged communication" before concluding that the content of the officer's testimony did not fall within the privilege, is definitely instructive. Id. at 573 (emphasis added).