Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Western Kentucky Correctional Complex (WKCC) violated the Open Records Act in denying the open records request of Timothy Tyler, an inmate at the institution, to inspect the following:
Complete SOTP File, including but not limited to Risk Assessment, any Psychological Study(s), any correspondence concerning Timothy Tyler and any notes interview.
Sue Thompson, Custodian of Records, partially denied Mr. Tyler's request. The following disposition was made of Mr. Tyler's request:
Copies of test & results are not available to clients pursuant to KRS 61.878(1)(g) and Ethical Standard 2.02. A copy of termination was given and a copy of interview notes.
After receipt of Notification to Agency of Receipt of Open Records Appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Staff Attorney, Department of Corrections, on behalf of WKCC, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs advised:
The Department respectfully submits that the initial response did not conform to statutory requirements; however, the request should be denied. In preparing a response to this appeal, I contacted Sue Thompson at the Western Kentucky Correctional Complex and Dr. John Scanish at the Kentucky State Reformatory. Dr. Scanish performed the risk assessment, pre-sentence on Mr. Tyler. The file requested by Mr. Tyler contains a copy of his PSI, Sex Offender Risk Assessment: Pre-Sentence report, resident record card and a referral to treatment. A copy of Mr. Tyler's resident record card and referral may be provided to him. The PSI is exempt from disclosure pursuant to KRS 61.878(1)(l) and 439.510 as it contains information compiled by a probation and parole officer in the course of his official duties A Sex Offender Risk Assessment: Pre-Sentence report is also enclosed in the file. According to information received from the Jefferson Circuit Court Clerk, the risk assessment requested by Mr. Tyler has been placed under seal by the court. Absent a court order to the contrary, the Department argues that such an action precludes release to Mr. Tyler at this time. In the alternative, the report should be exempt in whole or in part pursuant to RCr 5.24 which governs the disclosure of testimony presented to the grand jury and KRS 61.878(1)(j) as the report contains Dr. Scanish's opinions and preliminary recommendations regarding future treatment.
We are asked to determine whether WKCC's partial denial of Mr. Tyler's request violated the Open Records Act. For the reasons that follow, we conclude that the response advanced by WKCC and the Department do not dispose of all issues raised in the appeal.
We first address the WKCC's denial of Mr. Tyler's request for his PSI report. Among the records excluded from the application of the Open Records Act are "[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).
KRS 439.510 makes confidential:
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.
In interpreting the application of KRS 61.878(1)(l) and KRS 439.510 to an open records request by an inmate for a copy of his PSI report, this office in 00-ORD-221 stated:
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:
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 WKCC nor the Department indicate whether Mr. Tyler 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. Tyler 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 WKCC 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.
We address next the denial of Mr. Tyler's request for his pre-sentence Sex Offender Risk Assessment. The Department of Corrections advised that information received from the Jefferson Circuit Court Clerk indicated that the risk assessment report requested by Mr. Tyler had been placed under seal by the court. Pursuant to a request from this office for more documentation on this issue, the Department provided this office with a copy of the case history of Mr. Tyler's case in Jefferson Circuit Court, 98-CR-000997, which confirmed that the Risk Assessment was filed as a sealed document on October 8, 1999.
However, the documentation provided this office fails to indicate the terms of the Court's order sealing the risk assessment report. In 00-ORD-221, this office stated the following in regards to an inmate's request for access to records in his sexual offender treatment program file:
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 [the inmate] 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.
If the Court's order directs that the record sealed is exempt from disclosure to Mr. Tyler, then the Department properly relied upon the Court's order in denying his request. The Open Records Act in no way supercedes an order entered by a court of competent jurisdiction. 99-ORD-109.
However, if any portion of Mr. Tyler's case file is withheld from his inspection, the Open Records Act requires the Department to set forth the exception upon which it relies for withholding the record and a brief explanation as to how the cited exception applies to the record withheld. KRS 61.880(1).
In its response, the Department argues, in the alternative, that the report should be exempt, in whole or in part, "pursuant to RCr 5.24 which governs the disclosure of testimony presented to the grand jury and KRS 61.878(1)(j) as the report contains Dr. Scanish's opinions and preliminary recommendations regarding future treatment."
RCr 5.24(1) provides:
Subject to the right of a person indicted to procure a transcript or recording as provided by Rule 5.16(3), and subject to the authority of the court at any time to direct otherwise, all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret, except that counsel may divulge such information as may be necessary in preparing the case for trial or other disposition.
The Department's response does not indicate whether the risk assessment report contains a copy of the transcript grand jury proceedings or excerpts of evidence presented. It also does not discuss whether Mr. Tyler has a right to a copy of the transcript under RCr 5.24. Failure to explain how RCr 5.24 applies to the records withheld constitutes a violation of KRS 61.880(1). Unless the Department can establish how the report or portions can be withheld from Mr. Tyler's inspection under RCr 5.24, it improperly relied upon that rule in withholding disclosure.
KRS 61.878(j) authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
The Department withheld from disclosure the opinions and preliminary recommendations of Dr. Scanish regarding Mr. Tyler's future treatment. This office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). 98-ORD-27. If Dr. Scanish's opinions and recommendations are preliminary in nature and do not reflect final agency action, they may be properly withheld under KRS 61.878(1)(j). 00-ORD-220. If the requested documents have been incorporated into or made a part of the final agency action, they should be provided to Mr. Tyler, unless they are exempt from disclosure under another applicable provision of the Open Records Act.
Finally, unless the Department can cite authority for withholding the risk assessment report in its entirety, nonexempt portions of the report must be made available for Mr. Tyler's inspection. 00-ORD-221.
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.