Request By:
Honorable Barbara W. Jones
General Counsel
Corrections Cabinet
State Office Building
Frankfort, Kentucky 40601Honorable Paul F. Isaacs
Public Advocate
Department of Public Advocacy
State Office Building Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
This office is in receipt of your request for an advisory opinion under the Open Records law. Specifically you indicate that attorneys with the Department of Public Advocacy, particularly the Post-Conviction Services Branch, often request to inspect the presentence investigation report (PSI) prepared by a probation officer at the request of the trial court prior to sentencing pursuant to KRS 532.050. The PSI is made a part of the defendant's institutional file at the correctional facility at which he is located and at the Offender Records Office of the Corrections Cabinet in Frankfort.
At present, the Corrections Cabinet has been denying requests for inspection of the PSI pursuant to KRS 61.878(1)(j) which exempts from public inspection (except upon court order) those records the disclosure of which is prohibited, restricted, or otherwise made confidential by the General Assembly. The Cabinet relies on KRS 439.510 and 532.050(4). Additionally, the Cabinet also denies inspection pursuant to KRS 61.878(1)(a) which exempts the inspection of records containing personal information the disclosure of which constitutes an unwarranted invasion of personal privacy.
The PSI retained by the Corrections Cabinet is a public record subject to the Open Records law. KRS 61.870. All public records are open to public inspection. KRS 61.872. However, public records are subject to the discretionary exemption provisions of KRS 61.878.
As stated above, KRS 61.878(1)(j) exempts from public inspection (except upon court order) any records made confidential by the General Assembly. As regards information contained in the PSI, the General Assembly stated as follows:
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. (KRS 439.510.)
Thus the statute directs that the PSI, which contains information obtained by a probation or parole officer, remain confidential unless otherwise ordered by the court, parole board, or Corrections Cabinet.
It is therefore the opinion of the Attorney General that, for the purposes of the Open Records law, KRS 439.510 directs disclosure of the information contained in the PSI only to the court, the parole board, or the Corrections Cabinet, although either agency may order disclosure otherwise.
This advisory opinion only pertains to the Open Records aspect of the PSI. However, statutory language and accompanying commentary appear to indicate that the PSI itself should not be released for inspection to the defendant or his counsel. KRS 532.050(4) provides that "the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations . . . The sources of confidential information need not . . . be disclosed." (Emphasis added.) The 1974 Commentary further indicates that KRS 532.050(4) takes a middle position between disclosure of the entire report and no disclosure at all. As such, it appears that the defendant and his counsel have no statutory right to inspect the PSI at all. The only statutory mandate is for the court to advise the defendant or his counsel of the factual contents and conclusions of the PSI.
In conclusion, it is the advisory opinion of this office that inspection of the PSI remains closed except to the court, parole board, or Corrections Cabinet pursuant to KRS 61.878(1)(j) and 439.510 although these agencies may order otherwise. Interpretation of KRS 532.050(4) indicates that there is a question as to whether the PSI itself should be released for inspection even to the defendant or his counsel. Statutory language only requires the court to advise of factual contents and conclusions. It does not require inspection.