00-ORD-221

00-ORD-221

November 28, 2000

In re: Lee Burnett/Kentucky State Reformatory

Open Records Decision

        The question presented in this appeal is whether Kentucky State Reformatory violated the Open Records Act in partially denying Lee Burnett’s October 10, 2000, request to review and copy his sex offender treatment program file, with the exception of his presentence investigation report which he only wished to review. Mr. Burnett received no response to his request, prompting him to initiate this open records appeal. For the reasons that follow, we find that KSR’s response to Mr. Burnett’s request was only partially consistent with the Open Records Act.

Upon receipt of this office’s notification of receipt of an open records appeal, Staff Attorney Tamela Biggs responded on behalf of the Department of Corrections and KSR. Acknowledging that KSR did not respond in a timely fashion, and that its response, issued two days after Mr. Burnett initiated his appeal, did not cite the statutes supporting its partial denial of his request, Ms. Biggs stated that on October 25, 2000, Sexual Offender Treatment Program Administrator Katherine Peterson notified Mr. Burnett that he could inspect and copy the program contract and program application contained in his file, but that access to the remaining documents in his file, including his PSI, raw test data, and case notes, was denied.

In support of Dr. Peterson’s denial of Mr. Burnett's request to inspect his PSI, Ms. Biggs relied on KRS 439.510, requiring the confidentiality of “all information obtained in the discharge of official duty by any probation or parole officer . . . .”  With reference to Dr. Peterson’s denial of his request for raw test data and case notes, Ms. Biggs relied on the reasoning found in 00-ORD-204, in which this office affirmed Western Kentucky Correctional Complex’s denial of an inmate’s request for his SOTP test results on the basis of KRS 197.025(1). It is the opinion of this office that reference to these authorities does not entirely resolve the records access issue.

        As noted above, Ms. Biggs acknowledges that KSR’s and the Department’s disposition of Mr. Burnett’s request was procedurally deficient. Further, she indicates that efforts are currently underway to correct these deficiencies. While we are obliged to note that the agencies’ failure to respond within five business days, per KRS 197.025(7), and to “include a statement of the specific exception authorizing the withholding of the record,” constituted a violation of KRS 61.880(1), as well as KRS 197.025(7), we find that these violations are mitigated by the agencies’ concession of errors and commitment to rectify these errors.

        Turning to the substantive issues in this appeal, we find that the arguments advanced by KSR and the Department of Corrections in support of their partial denial of Mr. Burnett’s request do not dispose of all issues raised. With regard to Mr. Burnett’s right to inspect, or receive a copy of, his PSI, we concur with the Department that this right is foreclosed by KRS 439.510, which provides:

All information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. 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 otherwise ordered by such court, board or cabinet.

While it is true that the Open Records Act excludes from public inspection “[p]ublic 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)(l), and that KRS 439.510 has been interpreted by Kentucky’s Supreme Court to extend to the presentence investigation report, Commonwealth v. Bush, Ky., 740 S.W.2d 943 (1987), the inquiry does not end here.

        In Bush, the Supreme Court addressed the question whether a criminal defendant is entitled to a copy of his PSI both at the pre-sentence and post-conviction stages. There the Court held that KRS 532.050(4), now codified as KRS 532.050(6), which requires a court to “advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation,” operating in tandem with KRS 439.510, does not require the court to release a copy of the report. Directly addressing the question whether the PSI falls within the parameters of the Open Records Act, the Supreme Court observed:

        The PSI would be a public record subject to the Open Records law, KRS 61.870, except for the fact that it is excluded from public inspection by virtue of KRS 61.878(1)[(l)] which exempts any records made confidential by the General Assembly.

Bush, above at 944. The Court concluded that in order to satisfy the “fair opportunity” requirements of KRS 532.050(6), a defendant who waived his PSI at sentencing “is entitled to being advised by the prison official who has custody of the PSI of the factual contents and conclusions therein.”  Id.  

        Neither KSR nor the Department indicate whether Mr. Burnett did or did not waive his PSI at sentencing, and was or was not advised of the factual contents and conclusions therein at that time. Only if Mr. Burnett did not waive his PSI, and was advised of its contents at sentencing, is he foreclosed from being advised of its contents at this time. Accordingly, it is incumbent on KSR or the Department to make this determination. While these agencies are not required to furnish him with a copy of the report in either case, if he waived his PSI at sentencing, he is entitled to be advised by the prison official who has custody of it of the factual contents and conclusions therein. Bush, above.

        Moreover, we find that 00-ORD-204, upon which KSR and the Department rely in denying Mr. Burnett access to all records in his SOTP file with the exception of his program application and contract, is not entirely dispositive. In 00-ORD-204, the Attorney General affirmed Western Kentucky Correctional Complex’s denial of an inmate’s request for “test results . . . which were taken while [he] was in the SOTA Program” on the basis of KRS 197.025(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). KRS 197.075(1) provides:

KRS 61.884 and 61.878 to the contrary notwithstanding, no person, including any inmate confined in a jail or any facility under the jurisdiction of the department [of corrections], shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.

Recognizing that this statute vests the commissioner or his designee with far-reaching discretion to deny a records request under the circumstances described, we concluded that WKCC’s denial did not represent an abuse of this discretion because dissemination of the test and data to other inmates before they underwent the same examination would compromise security, and because the requesting inmate was not qualified by education to properly interpret the data, and his misinterpretation of the data might pose a security threat. While this decision is controlling on the issue of Mr. Burnett’s access to test results found in his SOTP file, his request was broader than the request at issue in 00-ORD-204. That decision does not control on the question of access to the remaining documents in the file.

        Neither KRS 197.025 nor KRS 197.400 et seq. invests a participant in the sexual offender treatment program with an unfettered right of access to all records in his treatment file. Conversely, neither statute establishes an absolute bar to his access.¹  As in all matters pertaining to records access, it is incumbent on KSR and the Department to identify all records in the file that were withheld, and to articulate a basis for denying him access to them in terms of the requirements of the Open Records Act. If no legally defensible basis exists for denying Mr. Burnett access to the other records in his file, these agencies are obligated to disclose them to him. If no other records are contained in his file, the agencies are obligated to so advise him.

        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 proceedings.

                                                          Sincerely,

                                                           A. B. Chandler III

                                                          Attorney General

                                                          Amye L. Bensenhaver

                                                          Assistant Attorney General

#645

Distributed to:

Lee Burnett, #135170

Luther Luckett Correctional Complex

P.O. Box 6

LaGrange, KY 40031

Dr. Katherine Peterson

Program Administrator

Sex Offender Treatment Program

Luther Luckett Correctional Complex

P.O. Box 6

LaGrange, KY 40031

Tamela Biggs

Department Of Corrections

Office of General Counsel

2439 Old Lawrenceburg Road

Frankfort, KY 40602-2400