Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
Mr. Pendley is incarcerated at the Kentucky State Reformatory and, by letter dated August 30, 2016, he appealed the Division of Probation and Parole's lack of response to an Open Records request dated June 14, 2016. The letter of June 14, 2016, was addressed to Probation & Parole Office, District # 2, Hopkins County, 910 South Main Street, Hopkinsville. The letter requested that he receive copies of: "Any and all documents related to my Parole, Parole compliance notes, Parole Officer notes, Preliminary revocation notes, [and] preliminary hearings notes."
Oran S. McFarlan, III, attorney, Justice & Public Safety Cabinet, responded on behalf of the Division of Probation and Parole ("Division") by letter dated September 20, 2016. Mr. McFarlan learned from the Division that a search for the Open Records request of June 14th was conducted but that the Division determined that it had not been received. A letter from Kim D. Henagan, District 2 Supervisor, Division of Probation and Parole, stated that her office had not received Mr. Pendley's request of June 14th until September 13, 2016, when notified by counsel of the appeal. Ms. Henegan's September 16, 2016, letter to Mr. Pendley provided two documents that are responsive to his request for preliminary revocation notes and preliminary revocation hearing notes. Ms. Henegan's letter denied the request for parole compliance notes and parole officer notes as those records were prepared or gathered by probation or parole officers in the discharge of their official duties and are thus exempt from disclosure and cannot be provided under KRS 439.501 and KRS 61.878(l)(1). Ms. Henegan's letter denied the request for "any and all records" relating to Mr. Pendley's parole on the basis that it was not a properly framed Open Records request. Ms. Henegan's letter requested that he amend this request to precisely describe the specific types of records regarding his parole that he is requesting.
Because Mr. Pendley's request did not reach Probation and Parole District 2 until after the request was appealed, the agency did not violate KRS 61.880(1) in failing to respond. Upon receipt of the request the Division promptly mailed Mr. Pendley the responsive records that could be released. The Division also complied with KRS 61.880(1) 1 by citing the exception, KRS 61.872(3)(b), for not providing "any and all records" related to his parole and explained that the request was not a properly framed Open Records request. The Division also complied with KRS 61.880(1) in providing the exception and explanation for denying the request for parole compliance notes and parole officer notes. We find no procedural error in the Division's handling of Mr. Pendley's request. We now turn to the substance of the Division's response.
Preliminary Revocation Notes and Preliminary Revocation Hearing Notes . Mr. McFarlan asked that the request for preliminary revocation notes and preliminary revocation hearing notes be found moot as the Division had provided the responsive records located after receipt of the June 14th letter. Under 40 KAR 1:030, Section 6, this Office may decline to issue a decision in an Open Records appeal if requested documents are made available to the complaining party after a complaint is made. 2 See 05-ORD-251. This Office has not received any communication 3 from Mr. Pendley to refute the Division's claim that his request for these particular documents has been fully answered. Pursuant to 40 KAR 1:030, Section 6, that part of this appeal regarding preliminary revocation notes and preliminary revocation hearing notes is now moot and we decline to address the merits of any issues related to those records.
Parole Compliance Notes and Parole Officer Notes .
In response to Mr. Pendley's request for parole compliance notes and parole officer notes, Mr. McFarlan reiterated Ms. Henagan's refusal to release those records on the basis of KRS 439.510. KRS 439.510 provides that "All information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. " The parole compliance notes and parole officer notes fall into the category of "information obtained in the discharge of official duty by any probation or parole officer" and thus cannot be disclosed. As correctly noted in Mr. McFarlan's response to this appeal, KRS 439.510 is incorporated into the Open Records Act by KRS 61.878(1)(l), 4 and this Office has upheld the Division's denial of information gathered by a probation or parole officer on multiple occasions. See, e.g . 10-ORD-155, and 11-ORD-169. We affirm the Division's denial of parole compliance notes and parole officer notes.
Any and All Documents Related to My Parole . Pursuant to KRS 61.872(3) 5 a person may have access to records "by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail. " 03-ORD-067, p. 4. Therefore, a "requester whose residence or principal place of business is outside the county where the public records are located may demand that the agency provide him with copies of the records, without inspecting those records, if he precisely describes the records and they are readily available within the agency. See, e.g., 95-ORD-52, 96-ORD-186." 03-ORD-067, p. 5; 04-ORD-011.
In addressing the unique issues surrounding access to public records in regards to inmates, the Attorney General has consistently recognized that an inmate must accept the necessary consequences of his confinement, including application for, and receipt of, public records. See 95-ORD-105, p. 3, citing 94-ORD-90, p. 2. By virtue of his confinement at Kentucky State Reformatory, Mr. Pendley is foreclosed from exercising his right to inspect records which may be in the possession of the Division. That being the case, Mr. Pendley must, in accordance with KRS 61.782(3)(b), "precisely describe" the records which he wishes to access by mail. As Mr. Pendley failed to describe the records he seeks with precision, the Division is not obligated to search through its records for "any and all" records that may relate to his request. Mr. Pendley has failed to satisfy the requirements of KRS 61.872(3)(b). See 99-ORD-63, 01-ORD-185, 13-ORD-077, and 15-ORD-212. We find no violation of the Open Records Act in the Division's response to this request.
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 must 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 KRS 61.880(1) requires, in pertinent part, that "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld."
2 40 KAR 1:030, Section 6. Moot Complaints. If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.
3 40 KAR 1:030, Section 2, Notice, requires the Attorney General to "consider any response received before the decision is prepared; however, the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2) and 61.880(2)."
4 KRS 61.878(1)(l) excludes from the Open Records Act "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
5 KRS 61.872(3): A person may inspect the public records:(a) During the regular office hours of the public agency; or(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.