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 is before the Attorney General on appeal from the failure of the Kentucky Parole Board to respond to Paul J. Gibson's July 7, 1999 open records request for a copy of "any letter and/or documents in my records from Hon. J. Stewart Schneider, Hon. C. David Hagerman or Mr. Phillip Miller." In his letter of appeal, dated July 18, 1999, Mr. Gibson indicated that he had yet to receive a response from the Parole Board.
After receipt of the letter of appeal, we sent a "Notification of Receipt of Open Records Appeal" to the Parole Board and enclosed a copy of Mr. Gibson's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamala Biggs, Office of General Counsel, Department of Corrections, on behalf of the Parole Board, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs explained that the request had been incorrectly routed to Offender Information by a seasonal worker, rather than delivered to the Chair of the Parole Board for her review and the Parole Board was not aware of the request until the filing of the instant appeal. She further explained that the Parole Board was cognizant of the procedural requirements of the Open Records Act and KRS 197.025(7) and detailed instructions would be provided the worker to ensure that all mail would be routed correctly and timely.
Along with her response, Ms. Biggs provided this office with a copy of the Parole Board's substantive response to Mr. Gibson's original request. By letter dated July 29, 1999, Geraldine Glass, Assistant Branch Manager, Offender Information Services, Department of Corrections, denied Mr. Gibson's request, stating:
You request copies of any letter and or documentation in your records from Hon. J. Stewart Schneider, Hon. C. David Hagerman, or Mr. Phillip Miller. Mr. J. Stewart Schneider is the Commonwealth's Attorney for the 32<nd> Judicial District of Kentucky, Mr. C. David Hagerman was the prosecuting attorney in your case, and Mr. Phillip Miller was the probation and parole officer who prepared the pre-sentence investigation report.
Correspondence received relative to an inmate's prospect of parole, either in favor of or against parole, are exempt from inspection under the provisions of KRS 61.878(1)(i)&(j) as they are preliminary correspondence with private individuals or preliminary memoranda in which opinions are expressed or policies formulated or recommended. Therefore, your request is denied.
In accordance with KRS 439.510, all information obtained in the discharge of official duty by any probation or parole officer shall be privileged. 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 ordered by such court, board, or cabinet. Therefore, the pre-sentence investigation report, which was prepared in the official duty of a probation and parole officer, is exempt from inspection under the provisions of KRS 61.878(1)(L).
In her response to Mr. Gibson's letter of appeal, Ms. Biggs further addressed the substantive issue in the appeal. Ms. Biggs reiterated that the Parole Board properly denied the request under authority of KRS 61.878(1)(i), (j), and (l) and KRS 439.510. She expanded the Parole Board's original response by explaining:
To require the Department or the Parole Board to hand any letters over to the inmate, would result in a chilling effect on the information provided to the Board and its officers. Individuals would be reluctant to share candid information with the Board or its officers, thereby hampering their ability to appropriately decide such issues as release, treatment options, etc.
The question presented in this appeal is whether the Parole Board violated the Open Records Act in denying Mr. Gibson's July 7, 1999, request. For the reasons that follow, we conclude that although its response was not issued in a timely fashion, the Parole Board properly denied Mr. Gibson's request under authority of KRS 61.878(1)(i), (j) and (l) and KRS 439.510.
KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
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)[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 Parole Board properly denied Mr. Gibson's requests for a copy of any letters submitted to the Parole Board in his records.
Moreover, we affirm the department's denial of Ms. Gibson's request for any records prepared by a probation or parole officer in the discharge of official duty, such as a pre-sentence investigative 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 these records, the Department noted that Mr. Phillip Miller was the probation and parole officer who prepared Mr. Gibson's pre-sentence investigation report. This office has previously affirmed the department's denial of similar requests on this basis. See, for example, 98-ORD-165; OAG 90-32; and OAG 89-14. We see no reason to depart from this line of authority and therefore conclude that the department properly withheld the releasee report.
In closing, we note that Parole Board's response to Mr. Gibson's request was delinquent. Although KRS 197.025(7) extends the standard three day deadline for agency response to five days, the Parole Board's substantive response, dated July 29, 1999, to Mr. Gibson's July 7, 1999 request was over three weeks after he submitted his open records request. Thus, we find that the Parole Board's response was procedurally deficient in failing to timely respond to his request and constitutes a violation of the Open Records Act. However, as noted above, the Parole Board has advised that curative measures have been taken to ensure that similar incidences of this nature do not reoccur.
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.