Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Reformatory violated the Kentucky Open Records Act in denying Chris Hawkins' November 15, 2012, request for a copy of the "Pre-Parole Progress Form completed at KSR relating to me and my 2/2013 parole hearing. " Paraphrasing the statutory language found at KRS 61.878(1)(i) and (j), KSR Offender Information Specialist William Mustage advised Mr. Hawkins that his request was denied. He subsequently initiated this appeal. In accordance with prior decisions applying KRS 61.878(1)(j) and 439.510, this office affirms the agency's ultimate disposition of Mr. Hawkins' request.
Upon receiving notification of Mr. Hawkins' appeal from this office, Assistant Counsel, Linda M. Keeton, Justice and Public Safety Cabinet, responded on behalf of KSR, initially advising that KSR denied Mr. Hawkins' request because "that form is a preliminary document pertaining to the inmate's possible future release on parole. " Further, Ms. Keeton explained, a Progress Form/Report contains information derived from an inmate's pre-sentence investigation, protected under authority of KRS 439.510, "which prohibits the direct or indirect disclosure of the information obtained by Probation and Parole Officers in the discharge of their official duties." Citing 00-ORD-221 and 05-ORD-184, Ms. Keeton correctly observed that prior Open Records Decisions have recognized that KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), authorizes the Department of Corrections to deny access to a PSI when the requesting inmate has not waived his PSI prior to sentencing. In further defense of the denial by KSR, Ms. Keeton advised that Pre-Parole Progress Reports routinely contain "factual information from the Presentence Investigation Report ("PSI") and institutional records," in addition to "notes regarding medical and/or psychological matters." Requiring disclosure of the Progress Form/Report "may result in the release of information in the PSI which would be in violation of KRS 439.510 and the holding in
Commonwealth v. Bush [740 S.W.2d 943 (Ky. 1987)]." Disclosure "could also result in a chilling effect on the information provided to the Parole Board, thereby hampering the ability to perform the Board's statutory function."
In addition to being exempt under KRS 439.510, Progress Forms are protected under KRS 61.878(1)(j), 1 KSR noted, as the Attorney General expressly held in OAG 92-125. The information contained in a Progress Form/Report is preliminary, Ms. Keeton argued, "providing information that may influence the Parole Board's decision making process, and is not intended to given notice of a final action." Accordingly, the Attorney General has previously upheld denials by DOC of inmate requests for Progress Forms/Reports, "determining that preliminary documents provided to the Parole Board do not have to be provided to requesters given their preliminary status" when they are not adopted, in whole or in part, as the basis for the decision of the Board. See 93-ORD-1; 93-ORD-136; 02-ORD-138; 06-ORD-174. Quoting the language of KRS 61.878(1)(j), and citing prior decisions of this office applying that exception, KSR reiterated that it has "been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within a public agency" which are "strictly advisory, " and not adopted as a basis for the final decision. In closing, KSR also correctly noted that generally 2 the Attorney General has "consistently deferred to agencies' reasonable interpretations of confidentiality provisions binding upon them absent binding legal authority to the contrary." For all of these reasons, the denial by KSR is affirmed consistent with governing precedents. 3
The Attorney General first addressed the question presented here in OAG 92-125, upon which KSR partially relied, affirming the denial by the Kentucky State Penitentiary of an inmate's request for his most recent Pre-Parole Progress Report on the basis of KRS 61.878(1)(j). Extending the logic of OAG 87-24 (affirming denial of access to a letter setting forth an opinion regarding the possibility of granting parole to an individual unless it was adopted in part as the basis for the decision of the Parole Board) to Progress Forms/Reports, the Attorney General reasoned as follows:
The report contains the caseworker's opinions in such areas as staff interaction, psychological and psychiatric condition, medical condition, and work performance. It may also include an inmate's formal psychological evaluation. Clearly, the pre-parole progress report is a preliminary document containing opinions, observations, and recommendations. It is purely advisory and is one of several documents submitted to the Parole Board for its consideration. Unless it is incorporated 4 into the Parole Board's final decision [or adopted as the basis thereof], it is exempt from public inspection pursuant to KRS 61.878(1)[(j)].
OAG 92-125, p. 2; 99-ORD-23 (reaffirming OAG 92-125 in upholding denial of inmate request for Pre-Parole Progress Report under authority of KRS 61.878(1)(j)). See also 08-ORD-005. Inasmuch as Mr. Hawkins' parole hearing will not be held until February 2013, and the Parole Board therefore has not made a final decision, his Pre-Parole Progress Report remains preliminary in character.
Even if governing precedents did not validate the agency's reliance on KRS 61.878(1)(j), KSR was also correct in asserting that portions of the Form/Report are protected under KRS 439.510. See 99-ORD-114. Among those records excluded from application of the Open Records Act by operation of KRS 61.878(1) 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). As noted, KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides that "All information obtained in the discharge of official duty by any probation and 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. . . . "
In construing this confidentiality provision, the Attorney General has observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987), the Kentucky Supreme Court suggested that its purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." In Bush , above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his pre-sentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court's decision in Bush , above, in OAG 88-14 the Attorney General affirmed the agency's denial of an inmate's access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a "special report" prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report) ; 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for pre-sentence investigation reports).
01-ORD-97, p. 4. In 01-ORD-97, this office upheld a decision by the Division to withhold "contemporaneous handwritten notes" prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that such records "[fell] squarely within the parameters of the privilege established at KRS 439.510." 01-ORD-97, p. 4. See 05-ORD-035 (adopting 01-ORD-97 in holding that requested assessment report and reassessment reports prepared by parole officers fall within the parameters of KRS 439.510); 08-ORD-136 ("parole risk assessments" requested fell within the parameters of KRS 439.510).
In response to a request by this office for additional information, KSR/DOC ultimately clarified that a Classification and Treatment Officer (CTO) actually prepared the specific Progress Form/Report in dispute rather than a Probation and Parole Officer. However, the agency remains of the view that information derived from the inmate's PSI, which is confidential per KRS 439.510 and therefore cannot be disclosed, either directly or indirectly, unless ordered by the Court, Board, or Cabinet, is confidential "even when used in a subsequent report, regardless of who puts that report together." This office affirmed the Department of Corrections' position that KRS 439.510 protects information obtained by P & P officers, rather than strictly documents prepared by those officers, i.e. , focuses on the information contained in a document, "not the preparer of the document," in 11-ORD-169 ( In re: Benjamin J. Martin/Department of Corrections, issued October 24, 2011). 5 Accordingly, KRS 439.510 provides additional support for the agency's denial as to portions of the Form/Report containing information obtained from P & P officers.
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:
Chris Hawkins, # 103061William MustageLinda M. Keeton
Footnotes
Footnotes
1 KRS 61.878(1)(j) authorizes nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
2 See 97-ORD-33; 98-ORD-78; 04-ORD-252; 08-ORD-177; 09-ORD-058; 10-ORD-080; 11-ORD-169.
3 Depending upon the extent and nature of the information contained in" the Pre-Parole Progress Form/Report, KSR additionally noted, "there may be a question of the impact such release would have on the security of the institution or staff, thereby calling into play KRS 197.025(1)." This assertion is consistent with 99-ORD-23. Further consideration of this argument is unwarranted given that prior decisions validate the agency's position relative to KRS 61.878(1)(j) and 439.510.
4 In 01-ORD-83, this office rejected the agency's position that an internal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, noting that "adopt" is not synonymous with "incorporate," and "the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." Id., pp. 13-14. The Attorney General concluded that when preliminary reports and records "are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed." Id., p. 14.
5 The Department of Public Advocacy appealed 11-ORD-169 to Franklin Circuit Court per KRS 61.880(5) and 61.882. On July 17, 2012, the Franklin Circuit Court issued an Order and Opinion Affirming, in Case No. 11-CI-01676, which DPA has now appealed to the Kentucky Court of Appeals.