Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Penitentiary ("KSP") violated the Open Records Act in withholding a Presentence Investigation Report ("PSI") and documents used to complete it. We find that KSP did not violate the Open Records Act in withholding the PSI and the criminal charge records used to complete it.
John E. Belden ("Belden") submitted an open records request to KSP on May 21, 2014. Belden stated that "per IPP 28-01-09 DOC allows i/ms to view PSI 1 time only. . . . Therefore I simply request to view my PSI . . . ." On May 22, 2014, Belden submitted another request to KSP for "all criminal and traffic charges on file. All counties in which I have/had a conviction." KSP responded to both requests on May 27, 2014. Regarding Belden's request for his PSI, KSP stated that:
PSI reports are privileged by statute and are exempt from inspection under KRS 61.878(1)(l) and 439.510. . . . Nevertheless, according to Corrections Policies and Procedures 28-01-09, the factual contents and conclusions contained in a waived PSI may be released, pursuant to Commonwealth v. Donnie Ray Bush, 740 S.W.2d 943 (KY 1987).
A review of the final judgment entered in 09CR1634/09CR2654 entered on October 5, 2011 shows that you were permitted to review and fully acquaint yourself with the contents in the PSI. Pursuant to CPP 28-01-09, Section A, your request may be made for a waived PSI only. Therefore, you are not eligible to view it again, and your request is denied.
. . . .
Complying with your request would require the compiling of lists from an exempted document. Therefore, your request is denied . . . .
Belden initiated this appeal on June 3, 2014. Belden stated:
I request to see my PSI to view all my charges from past. My initial request was not to view intire PSI, only relevant charges. . . .
I was denied due to misconception of request. . . .
. . . My criminal and traffic charges are public record, and they pose NO THREAT or they are not a EXTRAORDINARY REQUEST.
Counsel for KSP responded to Belden's appeal on June 23, 2014. KSP stated that "the PSI and criminal and traffic charges sought by inmate Belden were obtained by a probation and parole officer in the exercise of her duties. . . . Arrest and charge records contained in the offender information system . . . were obtained by the probation and parole officer to complete the PSI." Counsel for KSP argued that:
Under KRS 439.510, information obtained by probation and parole officers in the discharge of their duties is privileged. This confidentiality statute protects "all information" obtained by probation and parole officers. Here, the charge records were used to complete the PSI and were obtained by an officer in the discharge of her duties. Thus, the information is protected by KRS 439.510. 1
KRS 439.510 provides that "all information obtained in the discharge of official duty by any probation or parole officer shall be privileged" and that "such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled . . . to receive such information." KRS 439.510 thus provides that any information obtained in the official duties of a probation or parole officer can only be disclosed to authorized persons. KRS 67.878(1)(l) exempts from the Open Records Act "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 439.510 and KRS 67.878(1)(l) therefore exempt documents containing information obtained by a probation or parole officer in the course of their duties from the Open Records Act.
In
Com. v. Bush, 740 S.W.2d 943 (Ky. 1987), the court held that "the PSI is also made confidential by KRS 439.510." Id. at 944. Following Bush , this office has repeatedly found PSIs to be exempt from disclosure under KRS 439.510. See 12-ORD-073; 05-ORD-245. This extends even to documents from other sources that are incorporated as part of a PSI. See 98-ORD-42 ("the copies of arrest records in the PSI file would still be part and parcel of the information in the PSI Report prepared by the probation official, which is required to be kept confidential under KRS 439.510 and KRS 61.878(1)(l)"). Therefore both the PSI and the charge records that are attached to it are made confidential under KRS 439.510. Accordingly, KSP did not violate the Open Records Act in withholding the PSI and the charge records used to complete the PSI. Belden may still request any charge records from the appropriate circuit court clerks.
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:
John E. Belden # 248251Teresa PetersAmy V. Barker
Footnotes
Footnotes
1 Counsel for KSP also correctly noted that CPP 28-01-09 has been repealed. See 501 KAR 6:270.