Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Green River Correctional Complex violated the Kentucky Open Records Act in denying William Keltner's undated request for a copy of his "Arestt [sic] record." On April 25, 2012, Offender Information Supervisor Teresa Shanklin denied Mr. Keltner's request, quoting the language of KRS 439.510 which, according to Ms. Shanklin, "includes arrest record reports prepared by the Division of Probation and Parole, Pre-Sentence Investigation Reports[] (unless waived at sentencing) [,] documentation of custody time credit sheet, special supervision reports, pre-parole progress reports (based on information in the PSI), preliminary reports in which opinions are expressed, and general correspondence prepared by probation-parole officer[s]." Asserting that the records he requested "are Police and Court records NOT records prepared by Probation and Parole, " Mr. Keltner initiated this appeal shortly thereafter. Because the only existing responsive document in the custody or possession of GRCC is a portion of his PSI, which Mr. Keltner did not waive prior to sentencing, and the PSI was prepared by a Probation and Parole officer, GRCC properly denied access on the basis of KRS 439.510. To the extent Mr. Keltner was requesting court records, GRCC ultimately agreed to provide him with copies of the four orders/judgments it possesses when he submits a completed Authorization to Use Inmate Account Form. GRCC also fully complied with KRS 61.872(4) relative to any such records not in the custody or control of the agency. The disposition of Mr. Keltner's request is affirmed.
Upon receiving notification of Mr. Keltner's appeal from this office, Staff Attorney Alea Amber Arnett, Justice and Public Safety Cabinet, responded on behalf of GRCC, initially asserting that GRCC properly denied Mr. Keltner's request because the only responsive document "was a portion of the [PSI] about his arrest record. Since PSIs are prepared by Probation and Parole Officers, they are exempt from disclosure by statute." Additionally, Ms. Arnett explained, "Mr. Keltner did not waive his PSI prior to sentencing, and could not gain access on that basis." Ms. Arnett correctly noted that Mr. Keltner asserted on appeal that he was requesting court and police records. GRCC thus amended its response "to indicate that it is not the custodian of court and police records and that it will disclose the copies of the four court orders/judgments in its possession if Mr. Keltner wants them and submits an Authorization to Use Inmate Account form or C.P.O. to pay for copies." 1 In the alternative, GRCC advised that Mr. Keltner "should contact the Clerk of the Union Circuit Court, Sue W. Beaven at Union County Courthouse, 121 South Morgan Street, Morganfield, KY, 42437."
Quoting the language of KRS 439.510, GRCC noted that KRS 532.050(2) "requires Probation and Parole Officers to prepare PSIs. Thus, the information the Officers obtain for the PSI is confidential and privileged according to KRS 439.510, which prohibits the direct or indirect disclosure of the information obtained by Probation and Parole Officers in the discharge of their official duties." As GRCC further observed, KRS 439.510 is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), "and the Attorney General's Office has upheld the Department's denial of PSIs to inmates when those inmates did not waive the PSI prior to sentencing, which is what happened in Mr. Keltner's case. 12-ORD-073; 05-ORD-184; 00-ORD-221[.]" The documentation available from Union Circuit Court relating to case number 09-CR-00041, namely, the Judgment and Sentence on Guilty Plea of September 14, 2009, Ms. Arnett explained, "shows that Mr. Keltner pled guilty to Failure to Comply with Sex Offender Registration, First Offense and that Mr. Keltner did not waive the PSI[.]" Because Mr. Keltner did not waive his PSI in this case, and "the PSI prepared by a Probation and Parole Officer is made confidential and privileged by statute," GRCC asked this office to find that Ms. Shanklin's response was proper. This office finds no error in the agency's final disposition of Mr. Keltner's request.
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." As noted, KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides:
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 or cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. . . .
In construing this provision, the Attorney General has observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987), the Kentucky Supreme Court suggested that its purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." In Bush , above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his pre-sentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court's decision in Bush , above, in OAG 88-14 the Attorney General affirmed the agency's denial of an inmate's access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a "special report" prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for pre-sentence investigation reports).
01-ORD-97, p. 4; 08-ORD-136; 10-ORD-155.
As GRCC correctly argued on appeal, KRS 439.510 mandates nondisclosure of a PSI unless the inmate waived his PSI at sentencing. Relying on Bush , this office has consistently upheld agency denials of requests for PSIs. See 03-ORD-228; 05-ORD-184; 10-ORD-041; 12-ORD-073. Inasmuch as Mr. Keltner apparently did not waive his PSI prior to sentencing, GRCC properly relied upon KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying access to the relevant portion of his PSI, the only existing record in the custody or control of GRCC responsive to his request. GRCC cannot produce that which it does not have, nor is the agency required to "prove a negative" in order to refute an unsupported claim that additional responsive documents exist. 2
Because Mr. Keltner clarified on appeal that he is requesting "police and court records," GRCC further agreed to provide him with copies of the four court orders/judgments in the possession of the agency, if responsive, upon receipt of a completed Authorization to Use Inmate Account form and payment of the copying fee per the relevant section(s) of CPP 6.1. In accordance with KRS 61.872(4), GRCC also referred Mr. Keltner to the Union Circuit Court Clerk and furnished him with "the name and official custodian of the agency's public records." Nothing else is required.
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:
William Keltner, # 239413Teresa ShanklinAlea Amber Arnett
Footnotes
Footnotes
1 Department of Corrections Policies and Procedures (CPP) 6.1, which, in relevant part, is consistent with KRS 61.874(1), authorizes GRCC to require submission of this form and require advance payment for copies. See 11-ORD-047 (adopting 08-ORD-044 and 08-ORD-242).
2 As the Attorney General has consistently recognized, a public agency cannot provide a requester with access to nonexistent records or those which the agency does not possess. 07-ORD-190, p. 6. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10. Addressing the dilemma created when a public agency denies a request based upon the nonexistence of the records and is faced with having to "prove a negative," in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005), the Kentucky Supreme Court observed "that before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist." In a series of decisions issued since Bowling , this office has been obliged to affirm public agency denials of requests based upon the nonexistence of responsive documents in the absence of a prima facie showing that records being sought did, in fact, exist in the custody or control of the agency. See 07-ORD-188; 11-ORD-153. Mr. Keltner has not attempted to make such a showing here; rather, he concedes that his "arrest record" consists of "police and court records." In the absence of the requisite prima facie showing, or any evidence to suggest that such documents were created or maintained at GRCC, this office finds no error in the agency's final disposition of the request. See 07-ORD-033 (requester failed to cite any specific legal authority directing the creation of the record and independent research disclosed no requirement that such a record exist); compare 11-ORD-074 (holding that "existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable" and the agency failed to rebut the presumption).