Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Marion Adjustment Center's denial of the open records request of Terry Rath for a copy of the "2-page letter attached to home placement letter (from parole officer) ." The Attorney General being sufficiently advised, we find that Marion Adjustment Center (MAC) properly relied on KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Rath's request for a copy of a two-page memorandum prepared by a parole officer.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to MAC, with a copy of Mr. Rath's letter attached. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Lisa Brady, Corrections Corporation of America, provided this office with a response, on behalf of MAC, to the issues raised in Mr. Rath's appeal. In her response, Ms. Brady advised, in pertinent part:
However, pursuant to his appeal to the Attorney General's Office, we have again reviewed his records. We find a 2-page Memorandum dated September 3, 1998 from a Jason Thornbury, Senior Parole Agent, Indiana Department of Corrections, concerning out-of-state placement rejection, which may be the document he requests. Attached is a copy of that Memorandum. However, it appears this document would be exempt from inspection under the provisions of KRS 61.878(1)(i), (j) and (l).
In accordance with KRS 439.510, 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 43.560 to receive such information, unless otherwise ordered by such court, board or cabinet. The Memorandum dated September 3, 1998 was prepared in the official duty of a parole officer, and would be exempt under KRS 61.878(1)(l).
We are asked to determine whether MAC's response to Mr. Rath's request was consistent with the Open Records Act. For the reasons that follow, we conclude that the institution's denial was proper and consistent with the Act.
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 official . . . such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet . . . unless otherwise ordered by such court, board or cabinet.
Since the 2-page Memorandum was prepared by a probation and parole officer in the discharge of his official duties, this record, pursuant KRS 439.510, would be exempt from disclosure and could properly be denied under KRS 61.878(1)(l). 96-ORD-147. Accordingly, it is the decision of this office that MAC's denial of the request was correct and in accord with provisions of the Open Records Act.
Because MAC's reliance upon KRS 439.510 and KRS 61.878(1)(l) is dispositive of this appeal, we need not address other arguments relied upon by the agency in support of its denial.
In his letter of appeal, Mr. Rath states that the Center refused to give him a denial of his request in writing. We do not have sufficient information before us to make a determination on this issue. However, we do note that KRS 61.880(1) requires that:
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.
(Emphasis added.) A failure to respond to a request in writing, and within three business days of receipt of the request, would constitute a procedural violation of the Open Records Act.
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.
Distributed to:
Terry Rath #130635Marion Adjustment Center CU A-110-B95 Raywick RoadSt. Mary, KY 40063
Lisa BradyMarion Adjustment CenterHighway 84St. Mary, KY 40063
Mike Moulton58 Public SquareElizabethtown, KY 40202