Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Summary : Luther Luckett Correctional Complex (LLCC) properly relied on KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), in denying a request for a copy of a completed Kentucky Risk Assessment System (KyRAS) because all responses were derived from probation and parole interviews. For those sections of the KyRAS not protected by KRS 439.510, LLCC properly relied on 17 U.S.C. § 106, incorporated into the Act by KRS 61.878(1)(k), in denying the request as copyright-protected material.
Open Records Decision
The issue presented in this appeal is whether the Luther Luckett Correctional Complex ("LLCC") violated the Open Records Act ("Act") in its disposition of an open records request submitted by inmate Timothy Nolan ("Appellant"). We find that LLCC properly relied on KRS 439.510, incorporated into the Act by KRS 61.878(1)(l), in denying Appellant's request for responses recorded in his completed Kentucky Risk Assessment System ("KyRAS"). For those sections of the KyRAS not protected by KRS 439.510, we find that LLCC properly relied on 17 U.S.C. § 106, incorporated into the Act by KRS 61.878(1)(k), in denying the request because the KyRAS assessment tool copyright is protected under an agreement between the Kentucky Department of Correction ("DOC") and the University of Cincinnati Correctional Institute ("UCCI").
On April 24, 2019, Appellant submitted an open records request to LLCC seeking a copy of his KyRAS completed on March 21, 2019. On May 8, 2019, LLCC denied the request. Regarding the responses recorded in the assessment tool, LLCC stated that all information contained within the report was "exempt pursuant to KRS 439.510." LLCC stated that Unit Administrators completed Appellant's KyRAS with information taken from assessments completed by DOC Division of Probation and Parole ("Probation and Parole" ), and administrators only interviewed Appellant to verify that information. Regarding the remaining parts of the KyRAS, LLCC denied the request stating, "the report is protected by copyright laws as this document was not created by [DOC]...so specific parts such as all of the numbered category sections and questions and answers would infringe on copyright protections and therefore cannot be released."
On May 9, 2019, Appellant appealed the denial. Appellant argued that KRS 439.510 does not apply because he provided the information used to complete the KyRAS. On June 3, 2019, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of LLCC. She argued that inmates do normally provide information to the person performing Supplemental Reentry Tool's ("KySRT's"). However, Ms. Barker argued that KRS 439.510 applied to Appellant's responses because they were entirely from prior KySRT's and PSI's completed by the DOC Division of Probation and Parole ("Probation and Parole" ). Regarding the KyRAS, Ms. Barker argued that UCCI has a copyright to the assessment tool and LLCC properly withheld it pursuant to 17 U.S.C. § 106, incorporated into the Act by KRS 61.878(1)(k) .
On May 28, 2019, this office asked LLCC to provide a copy of Appellant's KyRAS for the purpose of in camera review, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. We also asked LLCC to supplement the record with explanation and substantiation of the claimed exemptions. In response to our request, LLCC provided copies of Appellant's March 21, 2019 KyRAS and statements from the staff who completed the assessment. LLCC also provided copies of a February 6, 2017 agreement between UCCI and DOC for the use of the KyRAS assessment tool. The agreement states that DOC agrees to preserve UCCI's rights to the assessment tool, and agrees to not "disclose or transfer the form...or any modification of or derivative works based on the [assessment tool] to third parties." LLCC also provided a copy of a January 31, 2019 renewal, which preserves the terms of the 2017 agreement.
The KyRAS that Appellant requested is exempt under the criteria of KRS 439.510, incorporated into the Act by operation of KRS 61.878(1)(l), 1 and LLCC properly relied upon the privilege in denying the request. According to KRS 439.510, "[a]ll information obtained in the discharge of official duty by any probation or parole officer shall be privileged..." See
Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987). The Attorney General has previously upheld the denial of open records requests for risk assessment tools completed with confidential probation and parole information, based on KRS 439.510. See 08-ORD-136 (upholding denial of "parole risk assessments"); 11-ORD-169 (upholding denial of Parole Guidelines Risk and Needs Assessment); 12-ORD-073 (upholding denial of PSI); 14-ORD-244 (upholding denial of Level of Service/Case Management Inventory assessment).
On appeal, Appellant recognized the prior decision of this office, but argued that LLCC should be required to redact any excepted responses and release the remaining nonexcepted material in the KyRAS, pursuant to KRS 61.878(4). 2 However, LLCC met its burden of proof regarding the exemption. Our in camera review of information that LLCC provided substantiates the claim that all responses in Appellant's KyRAS were from probation and parole interviews. Under these facts, we affirm LLCC's denial of the responses recorded in Appellant's KyRAS, pursuant to the probation and parole privilege stated in KRS 439.510.
LLCC properly denied the remaining parts of the KyRAS as copyright protected material. This office has previously determined that copyrighted protected risk assessments used by DOC are properly denied based on 17 U.S.C. § 106, incorporated into the Act by KRS 61.878(1)(k). 3 See 14-0RD-244; 15-ORD-108, n. 5; 99-ORD-88; 93-ORD-142; OAG 86-2. LLCC provided a copy of the agreement between DOC and UCCI, in which DOC agreed to preserve UCCI's ownership rights and refrain from disclosing the form. The appeal record contains sufficient evidence that DOC does not own the KyRAS, but only uses the assessment tool subject to an agreement recognizing the existence of copyright protection. Accordingly, LLCC properly withheld the KyRAS assessment tool.
A party aggrieved by this decision may appeal it 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(l) prohibits from disclosure "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly, including any information acquired by the Department of Revenue in tax administration that is prohibited from divulgence or disclosure under KRS 131.190[.]"
2 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
3 KRS 61.878(1)(k) prohibits from disclosure "All public records or information the disclosure of which is prohibited by federal law or regulation[.]"