Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Blackburn Correctional Complex violated the Kentucky Open Records Act in denying Larry Pence's March 11, 2013, request for "copies [sic] of N.C.I.C. (or) P.S.I. report." In a timely written response, BCC Offender Records Supervisor Susan Wilhoit-Oliver advised Mr. Pence that "Presentence/ Postsentence Investigation Reports are privileged by statute and exempt from inspection under KRS 61.878(1)(l). However, according to Corrections Policies and Procedures 28-01-09, the factual contents and conclusions contained in a waived PSI may be released, per [ Commonwealth v. Bush ], 740 S.W.[2d] (Ky. 1987)." Ms. Wilhoit-Oliver also noted that "completion of the presentence investigation report may be delayed until after sentencing upon written request of the defendant. KRS 532.050(1)." Because Mr. Pence did not waive his PSI, which was completed by sentencing, BCC further advised that he was provided with an opportunity to refute the factual content at the time of sentencing. Pursuant to CPP 28-01-09, Section V, BCC reiterated, only a waived PSI may be released; accordingly, BCC denied Mr. Pence's request.
In response to Mr. Pence's appeal BCC reiterated its earlier arguments, quoting the language of KRS 439.510 and 61.878(1)(l), and correctly observing that in Bush the Kentucky Supreme Court "held that KRS 532.050(4) [now codified as KRS 532.050(5) ], required a court to 'advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation ...,' but does not require the court to release a copy of the report." Rather, BCC noted, the Court recognized that KRS 439.510 , in tandem with KRS 61.878(1)(l), "makes the PSI confidential and exempt from disclosure under the Open Records Act. " Because Mr. Pence did not waive his PSI prior to sentencing, BCC concluded, "he is not entitled to receive a copy per CPP 28-01-09 and the holding of Commonwealth v. Bush." In accordance with KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), Commonwealth v. Bush , above, and prior decisions by the Attorney General, this office affirms the denial of Mr. Pence's request.
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 (upholding a decision by the Division of Probation and Parole 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").
Numerous decisions by the Attorney General validate the position of BCC. This office finds that 00-ORD-221 (pp. 2-3), a copy of which is attached hereto and incorporated by reference, is controlling on the sole question presented. Pursuant to KRS 439.510 and KRS 61.878(1)(l), Mr. Pence is not entitled to review his PSI. The denial by BCC is affirmed.
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:
Larry Pence, #Susan Wilhoit-OliverLinda M. Keeton