Opinion
Opinion By: Andy Beshear,Attorney General;Taylor Payne,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory (KSR) violated the Kentucky Open Records Act when it denied inmate Robert Cecil's open records request for a Sex Offender Treatment Program ("SOTP") parole report. For the reasons stated below, we find that KSR did not violate the Open Records Act in withholding the SOTP parole report as a preliminary document.
On June 23, 2017, Cecil requested "one copy of the document 'complete SOTP parole report' from my institutional file on KOMS" from KSR. On that same day, KSR denied the request on two independent grounds. First, KSR claimed the document was "preliminary in nature pursuant to KRS 61.878(1)(i) and (j) and has not been adopted by the parole board as part of its decision." Second, KSR stated that "SOTP staff include in the report information from the PSI that is gathered by probation and parole officers and is exempt pursuant to KRS 61.878(1)(l) and 439.510." Cecil appealed the denial by KSR to this office. KSR responded in a timely fashion.
KRS 61.878(1)(j) exempts "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." SOTP parole reports are prepared to inform a parole board about an inmate's participation in the Sex Offender Treatment Program. See 501 KAR 1:030, Section 1(11). Cecil argues that completion of the SOTP parole report constitutes final agency action. We disagree. This office has repeatedly held that an SOTP parole report is a preliminary document that does not constitute a final agency action, and is therefore exempted pursuant to KRS 61.878(1)(j). See 14-ORD-129 and 14-ORD-008. An SOTP parole report only ceases to be a preliminary document once it is adopted by an agency as a basis for its final action. 14-ORD-008. Here, Cecil has not claimed that the SOTP parole report was adopted by KSR as part of any final action. Accordingly, KSR did not violate the Open Records Act in withholding the SOTP parole report as a preliminary document. 1
Either party may appeal this decision by initiating action in the appropriate circuit court per 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