Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Kentucky State Reformatory properly relied on KRS 61.878(1)(l) and KRS 439.510 in denying James Carl Higgs' February 20, 2012, request to inspect his 1980-1981 pre-sentence investigation report. The focus of this, as well as any, open records appeal is the propriety of the agency's denial of a records request and not the accuracy of the information the requested records contain. We make no finding on the latter issue.
On appeal, Mr. Higgs does not allege any procedural irregularity in KSR's denial of his request. Nor does he question the legal authority upon which KSR relies in issuing the denial. Instead, he emphasizes that his 1980-1981 PSI contains numerous misrepresentations and inaccuracies that formed the basis of the risk assessment submitted to the Parole Board in July 2011 and will form the basis of the risk assessment that will be submitted to the Parole Board in July 2012. Indeed, in correspondence directed to this office after KSR filed a supplemental response to his appeal, Mr. Higgs declared that "[t]he threshold question is not whether [he is] entitled to a copy of [his] 1980-1981 PSI but whether it contains false and/or erroneous information."
KSR responded, through Justice and Public Safety Cabinet counsel, that Mr. Higgs was promptly and properly advised that KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), mandates nondisclosure of "[a]ll information obtained in the discharge of official duty by any probation or parole officer," including preparation of the PSI pursuant to KRS 532.050(2). Continuing, counsel observed:
[T]he Attorney General's Office has upheld the Department's denial of PSIs to inmates when those inmates did not waive the PSI prior to sentencing, which is what happened in Mr. Higgs' case also. 05-ORD-184; 00-ORD-221 at pages 2 and 3.
The documentation available from Jefferson Circuit Court case number 79-CR-0986 shows that a jury convicted Mr. Higgs of murder and being a persistent felony offender, first degree in December 1980. The Court ordered a PSI, which was submitted on January 12, 1981. The Court then sentenced Mr. Higgs to forty years on the murder charge and to life on the persistent felony offender charge. Thus, the PSI was not waived in this case.
The bulk of Mr. Higgs' appeal deals with what he states are inaccuracies in his PSI or risk assessment that will be considered in is upcoming Parole Board hearing. Other than addressing those inaccuracies with the sentencing court as provided in KRS 532.050(6), Mr. Higgs can also address those in writing or face-to-face with the Parole Board. KRS 439.340(2)(7).
In closing, counsel reiterated that Mr. Higgs did not waive his PSI, a record made confidential by KRS 439.510 , and urged this office to affirm KSR's denial of his request. Given our narrow statutory charge, we affirm.
In
Commonwealth v. Bush, 740 S.W.2d 943 (Ky. 1987) the Kentucky Supreme Court determined that the referenced provision mandates nondisclosure of the PSI unless the inmate waived his PSI at sentencing. Relying on Bush , this office has consistently affirmed the denial of requests for PSI's. See 10-ORD-041 and authorities cited therein. KSR's review of pertinent documentation confirms that "the PSI was not waived in this case." KSR therefore did not violate the Open Records Act in denying Mr. Higgs' request for his 1980-81 PSI.
The Attorney General is statutorily charged with the duty to issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884" in the disposition of a records requests. KRS 61.880(2). This determination does not extend to assessing the truthfulness and accuracy of the requested records. The relief Mr. Higgs seeks is unavailable to him in an appeal brought pursuant to KRS 61.880(2)(a) .
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:
James Carl Higgs, # 094908Marc AbeloveAmy V. Barker