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 the Department of Corrections Division of Probation and Parole did not violate the Open Records Act in denying Christopher A. Lasley's June 28, 2012, request for a copy of "the 5/ of or about 10/2008 urinalysis test results date and time, the papper work for NA meeting ordered to attended, and written order to attend those meetings wail on probation in 2008" (sic). DOC's response was both procedurally and substantively correct. On this question, 09-ORD-063 controls.
In a timely written response, 1 DOC advised Mr. Lasley that the requested records "are exempt per KRS 439.510 and KRS 61.878(1)(l)." Mr. Lasley thereafter initiated this appeal, asserting that he was entitled to the records because they "were used in [his] probation . . . revocation hearing [on] 1/13/2009." In supplemental correspondence, DOC responded:
The urinalysis testing result documents were for a sample taken and sent for testing by a probation and parole officer in the course of his duties in supervising the offender.
In support, the agency cited several decisions of this office affirming its reliance on KRS 439.510 to support nondisclosure of probation and parole records. 2 In our view, 09-ORD-063 is dispositive.
KRS 439.510 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.
The urinalysis results, and related records, to which Mr. Lasley requested access "would be . . . public record[s] subject to the Open Records law, KRS 61.870, except for the fact that [they are] excluded from public inspection by virtue of KRS 61.878(1)[(l)] which exempts any records made confidential by the General Assembly." Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987). Operating in conjunction with KRS 61.878(1)(l), KRS 439.510 excludes from inspection "[a]ll information obtained in the discharge of official duty by any probation or parole officer. " The statute makes no exception for the individual to whom the information relates, and Mr. Lasley has no greater right of access to records that fall within its parameters than does the public generally.
In 09-ORD-063, this office affirmed the agency's denial of a request for records relating to the requester's registration as a sex offender after his release from prison. We recognized that unauthorized disclosure of records that fall within the ambit of KRS 439.510 is a misdemeanor, punishable by a fine not exceeding $ 500 or imprisonment not exceeding one year, or both. KRS 439.990(3). 502 KAR 6:270 incorporates by reference an extensive body of policies and procedures governing drug and alcohol testing of offenders and is aimed, in part, at insuring "offender compliance with the conditions of probation and parole. " Policy Number 27-13-01, II.A. Although 27-13-01, II.M.1.a. permits disclosure of testing results to the offender, 27-13-01, II.M.3. states that "[a]ny employee who releases drug [or alcohol] test results without authorization violates KRS 439.510 and may be subject to prosecution and penalties as set forth in KRS 439.990." The regulation is silent on how authorization is obtained.
Here, as in 09-ORD-063, the requested records are "information obtained in the discharge of official duty by [a] probation and parole officer, " and KRS 439.510 applies to the records by its express terms. Here, too, Mr. Lasley "stands in the same shoes as any other open records requester" and, absent authorization, enjoys no greater entitlement to the results than any other member of the public. Nevertheless, as the "offender" who underwent urinalysis testing, he is among the class of approved recipients of the results identified at 27-13-01, M.1.a. We therefore urge DOC to advise Mr. Lasley how to obtain authorization for release of those records to 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 proceeding.
Distributed to:
Christopher A. Lasley, # 225820Todd HenningAmy V. Barker
Footnotes
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