Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Forrest Moseley appeals Eastern Kentucky Correctional Complex's denial of his March 23, 2015, request for a copy of the "'Letter of Support' to the Parole Board dated as received 3/9/2015/3-11-2015 scanned into KOMS from Susan Jackson Balliet/Dept. of Public Advocacy." In a timely written response, EKCC advised Mr. Moseley that the letter was a preliminary document and was protected from disclosure by KRS 61.878(1)(i) and (j). EKCC later explained that the Parole Board "did not adopt the letter requested as part of its decision" to deny his request for parole. On appeal, Mr. Moseley again asserts that the disputed letter was "scanned into KOMS on 3/11/2015," and "KOMS states that there is no sensitive information, and that the letter is an Open Records." He presents no proof to support this claim. 1
In 14-ORD-008, this office cited with approval 02-ORD-138 in which we affirmed the Department of Corrections' reliance on KRS 61.878(1)(i) and (j) 2 as the basis for denying an inmate's request for copies of letters written to the Parole Board on his behalf. There, as here, the letters were not adopted in the Board's ultimate denial of the inmate's request for parole. We referenced a decision issued in 1991 recognizing that:
a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter.
14-ORD-008, p. 3, citing 93-ORD-1 and 93-ORD-136; see also 06-ORD-174. This line of decisions overwhelmingly supports EKCC's denial of Mr. Moseley's request for a letter of support written to the Parole Board by a public advocate. We therefore affirm that denial and find no violation of the Open Records Act.
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.
Footnotes
Footnotes
1 Past decisions of this office referencing the Department of Corrections Retention Schedule refute this statement. At note 2 of 10-ORD-206 we recognized that the electronic records systems description attached to that schedule indicates that "access [to KOMS] is restricted to authorized individuals" and that "there is no public access available to KOMS."
2 KRS 61.878(1)(i) and (j) authorize nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]