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 Correctional Institution for Women ("KCIW") violated the Open Records Act in withholding a pre-parole progress report ("PPPR"). We find that KCIW did not violate the Open Records Act in withholding a PPPR as a preliminary document and as confidential under KRS 439.510.
Charon Anderson ("Anderson") submitted an open records request to the KCIW on June 3, 2014, which was stamped as received by KCIW on June 6, 2014. Anderson requested "1 copy of any and all of my Pre Parole Progress Reports." KCIW responded on June 9, 2014, denying the request on the grounds that "this report contains information from the PSI, this is information that is gathered by probation and parole and is exempt per KRS 61.878(1)(l) and 439.510.
Anderson initiated this appeal on June 13, 2014. Anderson argued:
The Defendants claim that these records may contain information from my PSI. There is no way for me to know that it does, I filled out my PSI so I know the information that is there because I placed it there.
. . . My PSI is at least 9 years old so I am sure none of my Pre Parole information has any thing to do with my 9 year old PSI.
KCIW responded to the appeal on June 27, 2014. KCIW argued that "the Pre Parole Progress Report . . . contains information taken from an inmate's presentence investigation (PSI). The PSI is completed by probation and parole officers. Under KRS 439.510, information obtained by probation and parole officers in the discharge of their duties is privileged. " KCIW further argued that "the PPPR is also exempt as a preliminary document pertaining to the inmate's possible future release on parole pursuant to KRS 61.878(1)(i) and (j). . . . The Parole Board indicated the reasons for its 2014 decision and did not adopt the report or information in it as part of its decision."
KRS 61.878(1)(i) exempts from the Open Records Act "preliminary drafts, notes," and KRS 61.878(1)(j) exempts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." This office has repeatedly found that "the pre-parole progress report is a preliminary document containing opinions, observations, and recommendations. " 02-ORD-54; see also 99-ORD-23. "Preliminary drafts, notes, correspondence, recommendations, and memoranda in which opinions are expressed or policies formulated retain their preliminary characterization, even after final agency action is taken, unless they are adopted as part of that final action." 14-ORD-014. Anderson's PPPR was not adopted as part of final agency action, and therefore remains a preliminary document under KRS 61.878(1)(i) and (j). Accordingly, KCIW did not violate the Open Records Act in withholding Anderson's PPPR as a preliminary document.
KCIW is also justified in withholding the PPPR under KRS 439.510, which 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. This office has repeatedly held that PPPRs contain information obtained by a probation and parole officer and are exempt from the Open Records Act under KRS 439.510 and 61.878(1)(l). See 14-ORD-096; 12-ORD-230. Accordingly, KCIW did not violate the Open Records Act in withholding Anderson's PPPR under KRS 439.510.
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:
Charon Anderson # 177122Sarah St. ClairAmy V. Barker