Opinion
Opinion By: Jack Conway AttorneyGeneralAmye L. BensenhaverAssistant Attorney General
Open Records Decision
Gregory Boyd appeals Kentucky State Penitentiary's partial denial of his August 25, 2014 request for copies of "all records of [his] Risk and Needs that was [sic] completed by the Department of Corrections and provided to the Kentucky Parole Board for parole consideration." Relying on KRS 61.872(5), KSP postponed release of Mr. Boyd's Case Management Plan until September 11, 2014, because it was not yet available in a printable format, but denied him access to his Level of Service/Case Management Inventory ("LS/CMI").
In support, KSP cited KRS 61.878(1)(l), incorporating the broadly worded privilege found at KRS 439.510 that applies to "All information obtained in the discharge of official duty by any probation or parole officer . . . ." Additionally, KSP cited 17 U.S.C. § 106, incorporated into the Open Records Act by KRS 61.878(1)(k), as interpreted in 09-ORD-079. KSP explained that the Department of Corrections "purchased the LS/CMI software and materials from Multi-Health Systems, Inc.," and that MHS holds a copyright on the software and materials. KSP described the LS/CMI software and materials as "an assessment tool developed from MHS's study and comparison of a normative sample of offenders" for determining the risk of recidivism, based on weighted factors correlating to that risk. Citing KRS 61.878(1)(c), 2 KSP maintained that the software and materials contained proprietary information the disclosure of which "would render [the] materials useless since the integrity of the test and the scoring would be compromised ...."
On September 15, 2014, KSP provided Mr. Boyd with a copy of his Case Management Plan explaining on appeal that the additional four day delay resulted from "illness and unforeseen circumstances in getting the records into a printable format. " With the exception of its failure to adhere to the stated release date for the Case Management Plan, we affirm KSP's handling of Mr. Boyd's request.
In supplemental correspondence directed to this office after Mr. Boyd initiated his appeal, and in response to our request for additional documentation propounded under KRS 61.880(2)(c), KSP established that:
. unlike the LS/CMI, the Case Management Plan is designed to "promote [an inmate's] successful reentry" into society and represents a collaboration of inmate, staff, and "other resources" that is "created to share with the inmate and is not copyright protected";
. in Martin v. Kentucky Department of Corrections, 2013 WL 1688198 (Ky. App.), 3 the Kentucky Court of Appeals affirmed the Department of Corrections' reliance on KRS 439.510 to support nondisclosure of "Parole Guidelines Risk and Needs Assessment," recognizing that although "risk assessment forms were not prepared by probation or parole officers, the forms were "compiled using information obtained by parole officers" and that "KRS 439.510 contemplates this situation by prohibiting the indirect disclosure of such information [to anyone other than statutorily identified persons or entities]"; 4
. the LS/CMI is, like the Parole Guidelines Risk and Needs Assessment, 5 a type of risk assessment, the former generally "created by a Probation and Parole Officer or classification staff at the institution and available to institutional staff through KOMS" 6 and the latter generally "created by Central Office staff for the Parole Board" and not accessible to institutional staff, but both "created using the information the Department has on the inmate that can include information obtained by probation and parole officers";
. the LS/CMI is copyright protected and that purchasers are admonished to "adhere to MHS's 7 Test Disclosure Policy" prohibiting disclosure; 8 and
. MHS "considers the LS/CMI materials to contain trade secrets or confidential commercial information" the disclosure of which would permit an unfair advantage to its competitors by revealing "test items and test protocols" and compromising "the integrity of the test and scoring model."
With the exception of the violation of KRS 61.872(5) noted below, we resolve this appeal in favor of KSP based on its reliance on KRS 439.510 and 17 U.S.C. § 106 as incorporated into the Open Records Act by KRS 61.878(1)(l) and (k) respectively.
KSP failed to strictly adhere to KRS 61.872(5) in postponing disclosure of Mr. Boyd's Case Management Plan. That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In construing KRS 61.872(5), the Attorney General has determined that agencies must identify the "earliest date certain , not a projected or speculative date, when the records will be available." 01-ORD-38 (emphasis in original); cited in 10-ORD-138; 12-ORD-211. In general, illness and unanticipated challenges do not relieve the agency of its obligation to afford a requester access to nonexempt records on the "earliest date" to which it has made a written commitment. KSP's failure to provide Mr. Boyd with a copy of his Case Management Plan on September 11, as it originally agreed to do, was therefore improper.
We find no error in KSP's refusal to provide Mr. Boyd with a copy of his LS/CMI. Our in camera review of that document confirms KSP's argument that it is a type of risk assessment form that is "compiled using information obtained by probation and parole officers" 9 the direct or indirect disclosure of which is expressly prohibited by KRS 439.510. It, too, "consists of static and dynamic factors" 10 such as current offense, prior offenses and incarcerations, education or employment prior to arrest, family/marital status, and classification level. With regard to these factors, neither MHS, nor KSP on its behalf, asserts a copyright interest. Nevertheless, they consist of information "obtained by probation and parole officers" to which the court in Martin extended KRS 439.510 protection. Accord, 14-ORD-147 (recognizing that LS/CMI, if it existed, would enjoy protection under KRS 439.510 because it would contain "information collected by a probation or parole officer in the course of their duties" and citing 11-ORD-169 and Martin , above).
Although KSP presents no license or other written agreement with MHS substantiating its position that it is legally obligated to observe MHS's test disclosure policy, and no MHS official's affidavit confirming this obligation, we affirm its reliance on KRS 61.878(1)(k), incorporating the exclusive rights granted by federal copyright law found at 17 U.S.C. § 106, as the basis for denying Mr. Boyd access to the remainder of his LS/CMI. In 09-ORD-079, upon which KSP relies, the office conducted an in depth analysis of the application of copyright law to criteria used by the Cabinet for Health and Family Services' Department of Medicaid Services in making determinations of "clinical appropriateness." A copy of 09-ORD-079, in which both the license agreement and an affidavit were presented to this office to substantiate the agency's claim of copyright protection, is attached and its reasoning adopted in full. Here, as in 09-ORD-079, "there is the [uncontested] fact that the Commonwealth of Kentucky purchased [the LS/CMI software and materials] subject to an agreement recognizing the existence of copyright protection . . .[, and] we have no grounds on which to gainsay that agreement . . . ." In lieu of a license agreement and affidavit, KSP provides this office with email exchanged by representatives of MHS and the Department of Corrections in October 2011 and January 2012 emphasizing the requirement that purchasers adhere to MHS's test disclosure policy under the terms of which "its test materials are proprietary, copyrighted, confidential commercial information, analogous to trade secrets, " and must be treated and protected accordingly. We are not prepared to reject KSP's claims of copyright protection based on its failure to produce substantiating documentation, but suggest that it would be well advised to expend efforts similar to those expended by the Cabinet for Health and Family Services in 09-ORD-079 should this issue arise in future appeals. 11
Either party may appeal this decision 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.
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