Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections violated the Open Records Act in responding to Stella Lewis's July 20, and August 17, 1998, requests for copies of various records relating to her incarceration and probation. For the reasons that follow, we find that the Department's response did not violate the Act.
Ms. Lewis states that on July 20, 1998, she mailed an open records request to the Department of Corrections from her residence at Dismas Charities Owensboro. In it, she requested a copy of her releasee report forms from 1994, when she was placed on probation, a copy of the conditions of supervision, and a copy of the judge's order from her November 21, 1997, revocation hearing. She indicates that on August 17 she mailed a second request to the department, asking for copies of the same documents, but adding a fourth document, her resident record card. She states that she received no response to these requests, and was therefore prompted to initiate this appeal.
On September 28, 1998, Department of Corrections staff attorney Tamela Biggs notified this office that the department had not received Ms. Lewis's July 20 or August 17 requests. She advised us that on September 11, 1998, the department received a request from Ms. Lewis for copies of her parole certificate and conditions of supervision from July, 1994, as well as her presentence investigation report, and that the department promptly responded, agreeing to furnish Ms. Lewis with copies of her judgment of conviction and sentence and order granting probation, containing the conditions of probation, upon payment of a $ .20 copying charge. The department denied her request for a copy of her presentence investigation report on the basis of KRS 61.878(1)(l) and KRS 532.050, as construed in
Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987).
Shortly thereafter, this office requested and the department agreed to respond to Ms. Lewis's earlier records requests. On October 13, the department released her resident record and the November, 1997, order entered by the Jefferson Circuit Court to her. The department denied her request for her releasee report pursuant to KRS 439.510 and KRS 61.878(1)(l). Ms. Biggs explained:
The information contained in [the releasee report] is obtained by a probation or parole officer in the course of his official duties. This document is provided only to the Parole Board or the court and candidly outlines the actions of the offender while on supervision. The offender never receives a copy of this document. To release said document to the offender would result in a chilling effect and greatly impact the information provided to the Board or court, thereby hampering their deliberations.
With respect to Ms. Lewis's request for a copy of the conditions of supervision, Ms. Biggs noted that the department's central office does not retain probation files, and advised her to contact the Owensboro office to obtain a copy. We find no error in the department's response.
The Department of Corrections' response satisfied the procedural requirements of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
For purposes of calculating the response time for the department, KRS 197.025, as amended in the 1998 legislative session, governs. This statute extends the deadline for the department's response to five days. Although the department did not issue responses to Ms. Lewis's July and August requests until September 28, the record supports its position that it never received these requests. The department promptly responded to Ms. Lewis's September 11 request, which it acknowledges that it did receive. Moreover, the department has searched its files on two separate occasions, and has been unable to locate the earlier requests. Absent any evidence to the contrary, we have no reason to doubt that Ms. Lewis's July and August requests never reached the Department of Corrections.
Substantively, we find no error in the department's response. It honored her request for copies of her resident card and the order revoking her probation. Because the department does not maintain copies of probation files, and therefore could not furnish Ms. Lewis with the conditions of supervision, it referred her to the Owensboro office to obtain a copy of this document. KRS 61.872(4) provides, "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." The department's response was consistent with this provision.
We affirm the department's denial of Ms. Lewis's request for her release report pursuant to KRS 439.510 and KRS 61.878(1)(l). These provisions operate in tandem to exclude from inspection all information obtained in the discharge of official duty by any probation or parole officer. In support of its decision to withhold the releasee report, the department noted that the report which Ms. Lewis requests is prepared by a probation or parole officer and outlines the actions of the offender while on supervision. This office has previously affirmed the department's denial of similar requests on this basis. See, for example, OAG 89-14 and OAG 90-32. We see no reason to depart from this line of authority and therefore conclude that the department properly withheld the releasee report.
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.