Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in withholding letters of support sent to the Parole Board. We find that EKCC did not violate the Open Records Act in withholding letters of support sent to the Parole Board.
Chris Hawkins ("Hawkins") submitted an open records request to EKCC on June 30, 2014. Hawkins requested "(1) letters of support for last parole hearing from all people in community. (2) last reclassification form from EKCC reflecting custody score etc . . ., dated 2/11/14. (3) supervision contacts document dated 2/24/09 by SSC Elizabeth Hogan (4) case notes from 5/21/14 to present (only) no other case notes." EKCC responded to Hawkins' request on June 30, 2014. EKCC denied the first request for letters of support for Hawkins' most recent parole hearing on the grounds that "letters sent to the Parole Board are exempt pursuant to KRS 61.878(1)(i) and KRS 61.878(1)(j) since individuals set forth personal opinions and recommendations as to whether a prisoner should be paroled. The Parole Board has not adopted the letters as part of a decision concerning parole. " EKCC granted the remainder of Hawkins' requests.
Hawkins initiated this appeal on July 7, 2014, on the grounds of "the frivilous, unjustified and unsupported applications of KRS 61.878(1)(i) and JRS 61.878(1)(j)." Hawkins argued that "the letters sought are not 'confidential' or a 'security threats,' they are from my closest friends. The letters were written in my behalf; of course they contain opinions and recommendations! " 1 EKCC responded on July 11, 2014, stating that "letters to the Kentucky Parole Board, whether from members of the private sector or public officials are preliminary records expressing opinions, observations, and recommendations and are exempt from disclosure unless incorporated into final agency action," citing to KRS 61.878(1)(i) and (j) and several prior decisions of this office. EKCC further stated that "the Parole Board indicated the reasons for its decision and did not adopt the letters requested as part of its decision," providing a copy of the Parole Board's decision.
KRS 61.878(1)(i) exempts from the application of the Open Records Act "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency." KRS 61.878(1)(j) similarly exempts from the application of the Open Records Act "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." This office has repeatedly held that agencies "properly relied upon KRS 61.878(1)(i) and (j) in denying an inmate's request for copies of letters written to the Parole Board on his behalf as none of the letters were adopted as the basis for the decision of the Parole Board regarding his eligibility for parole. " 14-ORD-008; 06-ORD-174; 02-ORD-138. This extends even to letters written by private persons, as "a letter from a private person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection . . . unless incorporated into or made a part of the Parole Board's final action." 93-ORD-136; 06-ORD-174. Accordingly, we find that EKCC did not violate the Open Records Act in denying Hawkins' request for letters of support to the Parole Board.
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:
Chris Hawkins # 103061Tammy HarperAmy V. Barker
Footnotes
Footnotes