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 Bell County Forestry Camp's (BCFC) denial of Rudell Woods' open records request for a copy of records:
Relating to Summary Criminal Records indicated on Transfer Authorization dated 11/17/99. Need case numbers and/or arrest numbers to charges indicated as: Theft and Rape III. In order to verify these charges are related to Rudell Woods.
Glenda Gambrel, Custodian of Records at BCFC, denied Mr. Woods' request, stating:
Pursuant to KRS 61.878(1)(k) which states: "All public records or information the disclosure of which is prohibited by federal law or regulation. " Therefore your request is denied. However, you may request your own FBI rap sheet from the FBI at a cost of $ 18.00 plus postage.
Following receipt of Mr. Woods' letter of appeal, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. Elaborating on the BCFC's original response, Ms. Biggs stated:
I have reviewed the original request and response filed in the referenced appeal. While the appropriate section of KRS Ch. 61 was referenced, the response was incomplete. After citing KRS 61.878(1)(k) which precludes the disclosure of "All public records or information the disclosure of which is prohibited by federal law or regulation" the pertinent federal provisions should have been provided. 28 U.S.C. § 534 should have been cited as it prohibits the Department's disclosure of a FBI rap sheet to anyone, including the individual who is the subject of the rap sheet. 28 CFR §§ 16.32 and 16.33 provide the subject of the rap sheet with the address and procedures for requesting a copy of the document from the FBI. The response could have included a citation to KRS 61.878(1)(l) and 439.510 as the only place the FBI rap sheet is found is in the Department's files is attached to the Presentence Investigation report (PSI) prepared by the individual's Probation and Parole Officer. KRS 439.510 precludes from disclosure any information obtained by a probation and parole officer in the course of his official duties. Obtaining a copy of the FBI rap sheet for attachment to the PSI is part of an officer's official duties.
If Woods wishes to obtain a copy of his rap sheet, he may forward the $ 18.00 fee with a rolled fingerprint card and the necessary information to the federal agency. The institution can make arrangements for the processing of the fingerprint card.
For everyone's convenience, I have attached a copy of 28 CFR §§ 16.31, 16.32 and 16.33.
We are asked to determine whether the BCFC's denial of Mr. Woods' request was consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude that the agency's response was proper and did not constitute a violation of the Act.
In her response, Ms. Biggs indicated that the record in Mr. Woods' file, which contains information relative to Mr. Woods' request for the arrest reports and case numbers, is his FBI rap sheet, which is a compilation of his entire criminal record. 28 U.S.C. § 534 prohibits the Department's disclosure of a FBI rap sheet to anyone, including the individual who is the subject of the rap sheet. In addition, KRS 439.510 precludes from disclosure any information obtained by a probation and parole officer in the course of his official duties. Ms. Biggs further indicated that obtaining a copy of the FBI rap sheet for attachment to the Presentence Investigation Report was part of a probation and parole officer's official duties.
KRS 61.878(1)(k) prohibits disclosure of "all public records or information the disclosure of which is prohibited by federal law or regulation" and KRS 61.878(1)(l) prohibits disclosure of "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 61.878(1)(k) and KRS 61.878(1)(l) read in tandem with 28 U.S.C. § 534 and KRS 439.510 respectively prohibit the disclosure of the rap sheet, the record which contains Mr. Woods' entire criminal record, and the Presentence Investigation Report, which contains the rap sheet, which was prepared by the probation and parole officer as part of his official duties. Ms. Biggs advised the undersigned that the only record in Mr. Woods' file that contained the information he was seeking was the rap sheet. As noted above, that document is confidential under state and federal law. Accordingly, we conclude the BCFC properly withheld disclosure of the rap sheet and the Presentence Investigation Report.
Ms. Biggs, along with her response, provided Mr. Woods with a copy of 28 CFR §§ 16.32 and 16.33, which give the address and procedures by which the subject of the rap sheet may obtain a copy of the document from the FBI. Thus, Mr. Woods may obtain the information he is seeking, by following the procedures outlined in 28 CFR §§ 16.32 and 16.33
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.