Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Kentucky Parole Board ("Parole Board") violated the Open Records Act in failing to timely respond to a request for records, and in withholding a report as a preliminary document. We find that the Parole Board procedurally violated the Open Records Act in failing to timely respond to a request for records, but did not substantively violate the Open Records Act in withholding a Sex Offender Treatment Program ("SOTP") report as a preliminary document.
Marvin Phipps ("Phipps") submitted an open records request to the Kentucky Parole Board on Apr. 28, 2014. Phipps requested "A COMPLETE SOTP PAROLE REPORT FORWARDED TO THE BOARD PRIOR TO THE PAROLE HEARING FROM JAMES J. VAN NORT, PSY. D. LICENSED PSYCHOLOGIST OR FROM THE SOTP AT NORTHPOINT TRAINING CENTER IN BURGIN KY." Having allegedly received no response, Phipps initiated this appeal on May 15, 2014. Phipps argued that the agency had not responded within three business days, and that "if the paperwork has Marvin Phipps # 176844 name on it, I do have a right to have a copy of it."
The Parole Board responded on May 28, 2014, providing a response to Phipps' initial request dated May 9, 2014. In the response to Phipps' initial request, the Parole Board stated that it received the request on Apr. 30, 2014, and the document was exempted from disclosure by KRS 61.878(1)(i) and (j). In its response to Phipps' appeal, the Parole Board argued that Phipps' appeal was not perfected, as he did not include a copy of the agency's response in his appeal, and this office should not consider it pursuant to 40 KAR 1:030. In the alternative, the Parole Board argued that the SOTP report "contained opinions and recommendations is a preliminary report for the Parole Board to review," and the Parole Board "indicated the reasons for its decision and did not adopt the report or information in it as part of its decision." The Parole Board also argued that the report "contains information gathered by a Probation and Parole officer in the conduct of his duties," and was therefore exempt pursuant to KRS 61.878(1)(l) and 439.510.
40 KAR 1:030 provides that "the Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." The Parole Board's response to Phipps' request was dated May 9, and indicated that it received the request on Apr. 30. Phipps' appeal was dated May 15. It is possible that Phipps had not received the Parole Board's response by the time of his appeal. Since we are unable to resolve whether Phipps had received the Parole Board's response by the time of his appeal, we cannot conclusively determine that his appeal is unperfected, and thus we move on to the merits.
KRS 61.880(1) provides that "each public agency, upon any request for records . . . shall determine within three (3) days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." It is not disputed that the Parole Board failed to respond to a request for records within three business days. Accordingly, the Parole Board procedurally violated the Open Records Act in failing to respond to a request for records within three business days.
KRS 61.878(1) provides that "the following public records are excluded from the application of KRS 61.870 to 61.884 . . . (i) Preliminary drafts, notes . . . (j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)(i) and (j) exempt from inspection any preliminary documents which do not constitute final agency action. This office has repeatedly held that documents prepared for the Parole Board that are not incorporated as part of its final decision are preliminary documents exempted under KRS 61.878(1)(i) and (j). See 14-ORD-008 (SOTP report exempted as a preliminary document); see also 06-ORD-174; 93-ORD-1. Accordingly, the Parole Board did not violate the Open Records Act in withholding the SOTP report as a preliminary document. 1
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Marvin Phipps # 176844James J. Van Nort, Psy. D.Amy V. Barker
Footnotes
Footnotes
1 Having found that the Parole Board properly withheld the SOTP report as a preliminary document, we decline to address its argument that it properly withheld the document pursuant to KRS 439.510.