Request By:
Leonard Miller, Psy. D., Director
Division of Mental Health
Department of Adult Institutions
Corrections Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Herman Tapp has appealed to the Attorney General pursuant to KRS 61.880 your denial of a request on his behalf for access to various documents pertaining to his participation in the Treatment Program for Sexual Offenders at the Luther Luckett Correctional Complex.
In a letter to you, dated March 21, 1988, from Doyle William Wilson, Resident Legal Representative, you were requested to provide copies of all records relative to the application, acceptance and participation of Herman Tapp in the Treatment Program for Sexual Offenders at the Luther Luckett Correctional Complex. The request was made pursuant to KRS 61.872 and KRS 61.884 of the Open Records Act and KRS 197.440, a section of the provisions pertaining to "Treatment Program for Sexual Offenders. " A copy of an "Authorization for Release of Records" form signed by Herman Tapp was attached to Mr. Wilson's letter.
You replied to Mr. Wilson in a letter dated March 29, 1988. The request was denied and you said in part as follows:
I cannot at the present time respond positively to your request for Mr. Tapp's Sex Offender Program records for the following reasons. First, under KRS 197.440 such information is privileged and, even with consent, this data cannot be released to another resident, including a resident legal representative. Second, KRS 61.878(H) states that "preliminary recommendations" are excluded from the application of KRS 61.870 to 61.884 and are subject to inspection only upon court order. It is my understanding that Mr. Tapp was only considered for the program and was never a bona fide participant.
In his letter of appeal to this office Mr. Tapp maintains that he "made a perfectly legitimate request for information which is pertinent to civil actions" that he is undertaking. He states that he is entitled to the information pursuant to KRS 197.440 and he denies the applicability of the statutory provisions cited in your letter of denial. He further alleges that he is a participant in the Treatment Program for Sexual Offenders (KRS 197.400 to KRS 197.440).
The undersigned Assistant Attorney General talked with Barbara Jones, Esq., General Counsel for the Corrections Cabinet, by telephone on April 21, 1988. She could not confirm whether or not Herman Tapp was a participant in the "Treatment Program for Sexual Offenders. " She stated that Cabinet policy precludes the release of psychological evaulations to inmates in the absence of a court order and that recommendations for treatment are preliminary documents which may be withheld from inspection.
The undersigned also talked with you by telephone on April 21, 1988, and you reiterated that it was your understanding that Herman Tapp was not a bona fide participant in the "Treatment Program for Sexual Offenders. " You said you would arrange for Ms. Katherine Peterson to talk with me.
I talked by telephone with Ms. Katherine Peterson, Manager of the Sexual Offender Treatment Program, on April 22, 1988. She specifically stated that Herman Tapp is not and was not a participant in the "Treatment Program for Sexual Offenders" pursuant to KRS 197.400 to KRS 197.440. He was an applicant for the program and underwent some preliminary testing relative to the application. However, he was never accepted into the program and never signed a treatment contract.
Ms. Peterson further stated that Herman Tapp was advised in writing that his application for the program was rejected. He subsequently appealed his nonacceptance and another letter was sent to him which confirmed his nonacceptance. The results of the tests he underwent were explained to him and he received extensive "verbal feedback" concerning the tests and the rejection of his application. His application for acceptance into the program was denied in part because he denied committing a sexual offense and he denied that he had engaged in any sexually deviant behavior.
OPINION OF THE ATTORNEY GENERAL
The requesting party alleges that he is a participant in the "Treatment Program for Sexual Offenders" pursuant to KRS 197.400 to KRS 197.440. He has requested copies of the records relative to his participation in that program and his request relies primarily upon KRS 197.440 which states as follows:
Communications relative to a sexual offender's diagnosis and treatment in the program, made between a sexual offender or member of the offender's family and any employee of the Cabinet who is assigned to work in the program, shall be privileged from disclosure in any civil or criminal proceeding, unless the offender consents to the discloure or the communication is related to an ongoing criminal investigation. The privilege created by this section shall not extend to disclosures made in an administrative hearing for the purpose of determining whether the offender should continue to participate in the program. The offender shall be informed in writing of the limits of the privilege created herein.
Regardless of the extent of the confidentiality provisions or the applicability of the accessibility section, the above quoted statute only applies to persons participating in the "Treatment Program for Sexual Offenders" under KRS 197.400 to KRS 197.440. This office accepts Ms. Peterson's statement that Herman Tapp is not and was not a participant in that program and, therefore, the provisions of KRS 197.440 are not applicable. You cannot be required to furnish records about a person's participation in a program when that person has not participated in that program.
Ms. Peterson advised this office that the requesting party was merely an applicant for the program. She maintains that not only was his application rejected but he was informed in writing of that fact and he also received extensive "verbal feedback" relative to all aspects of the application process. This office cannot detect any violations of the Open Records Act (KRS 61.870 to KRS 61.884) in regard to requests for documents pertaining to the application procedure.
While KRS 197.440 is not applicable in this situation, this office does not know what other programs, if any, the requesting party is participating in and what specific records he might be attempting to inspect and copy. The requesting party is required to describe the records he seeks to inspect with sufficient specificity so that the public agency knows what to look for rather than having to guess what he might want. See OAG 84-342, copy enclosed, at page two. Furthermore, preliminary recommendations and preliminary memoranda in which opinions are expressed may be excluded from public inspection pursuant to KRS 61.878(1)(h). See OAG 87-82 and OAG 87-1, copies of which are enclosed.
In conclusion, it is the opinion of the Attorney General that the public agency acted consistent with the terms and provisions of the Open Records Act. The public agency cannot grant access to documents relative to a person's participation in a program when the agency's records reflect that the person is not a participant in that particular program.
As required by statute a copy of this opinion is being sent to the requesting party, Herman Tapp, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.