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, Division of Probation and Parole violated the Kentucky Open Records Act in the disposition of James R. Solomon's June 24, 2013, request for "copies of all the money order payments I made on the ordered drug test fees/'it was a part of my conditions as well.' . . . [and] copies of all drug test results possitive [sic] and negitave [sic] (that you gave me during your supervision of me)." Having received no response, Mr. Solomon initiated this appeal by letter dated July 29, 2013. Upon receiving notification of Mr. Solomon's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of the Division, acknowledging that "it did not respond within the five calendar days, excepting Saturdays, Sundays and legal holidays allowed by KRS 197.025(7)." The Division "understands its obligation under the statute," Ms. Barker advised, "and has agreed to provide information to staff to help them comply with the time frame allowed in the statute." Ms. Barker enclosed a copy of the Division's August 7 response advising that copies of the Drug Test Payment Receipts would be provided; accordingly, she correctly asserted, the related issues have been rendered moot per 40 KAR 1:030, Section 6. The agency denied Mr. Solomon access to his drug test results on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). On appeal Ms. Barker correctly noted that the Attorney General's Office has consistently affirmed the denial of requests for probation and parole records, "including documents obtained by a Parole Officer made confidential under KRS 61.878(1)(l) and 439.510 in numerous decisions[,]" including 01-ORD-97, 05-ORD-052, 05-ORD-265, 08-ORD-088, and 11-ORD-169.
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). KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides that "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. . . . "
In construing this confidentiality provision, the Attorney General has observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 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. In 01-ORD-97, this office upheld a decision by the Division to withhold "contemporaneous handwritten notes" prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that such records "[fell] squarely within the parameters of the privilege established at KRS 439.510." 01-ORD-97, p. 4. See 05-ORD-035 (adopting 01-ORD-97 in holding that requested assessment report and reassessment reports prepared by parole officers fall within the parameters of KRS 439.510); 08-ORD-136 ("parole risk assessments" requested fell within the parameters of KRS 439.510).
More recently, this office resolved the precise question presented in favor of the Division, affirming the denial by the Division of a request for, among other things, a copy of specified urinalysis test results on the basis of KRS 439.510. The Attorney General reasoned as follows:
The urinalysis results, and related records, to which Mr. Lasley [Solomon] requested access "would be . . . public record[s] subject to the Open Records law, KRS 61.870, except for the fact that [they are] excluded from public inspection by virtue of KRS 61.878(1)[(l)] which exempts any records made confidential by the General Assembly." Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987). Operating in conjunction with KRS 61.878(1)(l), KRS 439.510 excludes from inspection "[a]ll information obtained in the discharge of official duty by any probation or parole officer. " The statute makes no exception for the individual to whom the information relates, and Mr. Lasley [Solomon] has no greater right of access to records that fall within its parameters than does the public generally.
In 09-ORD-063, this office affirmed the agency's denial of a request for records relating to the requester's registration as a sex offender after his release from prison. We recognized that unauthorized disclosure of records that fall within the ambit of KRS 439.510 is a misdemeanor, punishable by a fine not exceeding $ 500 or imprisonment not exceeding one year, or both. KRS 439.990(3). 502 KAR 6:270 incorporates by reference an extensive body of policies and procedures governing drug and alcohol testing of offenders and is aimed, in part, at insuring "offender compliance with the conditions of probation and parole. " Policy Number 27-13-01, II.A. Although 27-13-01, II.M.1.a. permits disclosure of testing results to the offender, 27-13-01, II.M.3. states that "[a]ny employee who releases drug [or alcohol] test results without authorization violates KRS 439.510 and may be subject to prosecution and penalties as set forth in KRS 439.990." The regulation is silent on how authorization is obtained.
12-ORD-155, pp. 2-3. The instant appeal presents no basis to depart from 12-ORD-155; accordingly, this office reaches the same conclusion.
Here, as in 12-ORD-155 (copy enclosed) , "the requested records are 'information obtained in the discharge of official duty by [a] probation and parole officer, ' and KRS 439.510 applies to the records by its express terms." 12-ORD-155, p. 3. In other words, Mr. Solomon "stands in the same shoes as any other open records requester" and, in the absence of authorization, "enjoys no greater entitlement to the results than any other member of the public." Id. As the "offender" who underwent urinalysis testing, however, Mr. Solomon is among the class of approved recipients identified at 27-13-01, M.1.a. Thus, here, as in 12-ORD-155, this office urges the DOC to advise the requester how to obtain authorization for release of those records to him.
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:
James R. Solomon, # 135190Chastity McCorkleJohn CummingsAmy V. Barker