Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that neither the Department of Corrections nor the Kentucky Parole Board violated the provisions of KRS 61.870 to 61.884 in partially denying Marvin Phipps's May 13, 2013, requests for:
. a copy of the recording of his Parole Board hearing conducted at Northpoint Training Center on April 3, 2013;
. copies of letters sent to the Parole Board relating to Mr. Phipps;
. the names of all persons who attended his Parole Board hearing; and
. the names of the Parole Board members who conducted his hearing.
The Parole Board responded in a timely fashion 1 by agreeing to provide Mr. Phipps with a copy of the audio recording of the hearing upon prepayment of a $ 2.00 reproduction fee. 2 The Department of Corrections responded in a timely fashion, 3 furnishing him with the names of the Board members who presided at his hearing but denying his requests for letters sent to the Board that related to him and for the names of all attendees at his hearing. The Department relied on KRS 61.878(1)(i) and (j) in denying his request for letters to the Parole Board. Mr. Phipps's appeal reached this office on the same day the Department of Corrections issued its response and three days after the Parole Board issued its response. 4 We find no error in the disposition of Mr. Phipps's request.
In supplemental correspondence directed to this office, the Justice and Public Safety Cabinet correctly notes that the Parole Board was authorized to require prepayment for a copy of the audio recording of Mr. Phipps's parole hearing. KRS 61.872(3)(b). Having received payment, the Board furnished Mr. Phipps with a copy of the audio recording thereby mooting any dispute relating to that portion of his request. 40 KAR 1:030 Section 6. The Department properly relied on KRS 61.878(1)(i) and (j) in denying Mr. Phipps's request for letters sent to the Parole Board that related to him. Existing authority, specifically 05-ORD-013 and 93-ORD-136, supports the position that such letters are excluded from public inspection as "correspondence with private individuals" 5 and/or "preliminary memoranda in which opinions are expressed." 6 See also, 93-ORD-1. Although he is the subject of the letters, as an open record requester Mr. Phipps does not enjoy an enhanced right of access to them but stands in the same shoes as any other requester. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) (recognizing that the Legislature "clearly intended to grant any member of the public as much right to access information [under the Open Records Act] as the next").
With reference to the disposition of Mr. Phipps's request for the names of the Parole Board members who conducted his hearing and the names of all persons who attended the hearing, we again find no error. Although the Department provided the names of the members of the Parole Board as an accommodation to Mr. Phipps, it properly refused to provide the names of attendees. 7 The Cabinet correctly characterized the request as a request for information and asserted the right to refuse the request under a line of authority reflected in numerous open records decisions. Its position was entirely consistent with established legal principles.
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:
Marvin Phipps, # 176844Amy V. BarkerJohn Cummings
Footnotes
Footnotes