Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Department of Corrections' denial of William Whelan's open records request for copies of any and all petitions to the Parole Board and a copy of an explanation of any and all evidence relied upon regarding Bethalene Campbell's petition for parole.
Tamela Biggs, Staff Attorney, Office of General Counsel, Department of Corrections, responding by letter, denied Mr. Whelan's request under authority of KRS 439.510 and KRS 61.878(1)(i) and (j). In her response, Ms. Biggs explained:
KRS 61.878(1)(i) and (j) permit a state agency to withhold from disclosure correspondence with private individuals and preliminary documentation in which opinions are expressed. Letters from an individual to the Parole Board regarding an inmate are never released to the public, as such meet both of the exclusions permitted under these sections. If you were to contact the Parole Board and voice your opinion regarding Ms. Campbell's release, you could rest assured that your endorsement of her release would not be provided to anyone other than members of the Board. KRS 439.510 precludes from disclosure information obtained by a probation and parole officer in the course of their official duties, except that such disclosure may be made to a court, board, cabinet or others involved in the probation and parole function. None of the exceptions for disclosure are applicable to your request.
We are asked to determine whether the Department of Corrections properly denied Mr. Whelan's requests for records presented to the Parole Board. For the reasons which follow, this office concludes that KRA 61.878(1)(i) and (j) authorize the nondisclosure of the requested records. These exceptions to public inspection provide:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency;
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In 93-ORD-136, this office held that the Department of Corrections properly relied upon these two exceptions in denying a request for copies of records or documents which had been sent to the Parole Board wherein individuals set forth personal opinions and recommendations as to whether a prisoner should be paroled. In that decision, we observed:
In 93-ORD-1, a copy of which is enclosed, we said that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In addition, we also stated that a letter from a person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection under KRS 61.878(1)(h) and (i) [now codified as KRS 61.878(1)(i) and (j)] unless incorporated into or made a part of the Parole Board's final action relative to eligibility for parole.
Accordingly, we conclude that, under the authority of KRS 61.878(1)(i) and (j) and prior opinions of this office, the Department properly denied Mr. Whelan's requests for a copy of any petition or other letters submitted to the Parole Board regarding a particular inmate's petition for parole.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.