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 James Hull's November 7, 2013, request for one copy of the "treatment summary" prepared in accordance with 501 KAR 6:250 upon his completion of the Sex Offender Treatment Program (SOTP) and one copy of the "complete SOTP parole report" that was forwarded to the Kentucky Parole Board. In a timely written response, Program Administrator Dr. James J. Van Nort, Sex Offender Services, advised that pursuant to KRS 17.552, "the Department of Corrections sex offender treatment program is regulated under KRS 197.400 to 197.440 and excluded from application of KRS 17.500, et. seq ., which included the above referenced Kentucky Administrative Regulation." Dr. Van Nort further explained that a "treatment summary is incorporated into the Parole Board Report." However, Dr. Van Nort continued, your Parole Board Report will not be provided to you "because that report is a preliminary document requested by and prepared for the Parole Board that contains recommendations and opinions and is not intended to give notice of final action of a public agency, thus it is exempt from release pursuant to KRS 61.878(1)(i) and (j)." This appeal followed.
Upon receiving notification of Mr. Hull's appeal from this office, Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, responded on behalf of KSR. Ms. Barker reiterated that the SOTP is excluded from application of the regulation cited by Mr. Hull pursuant to KRS 17.552. A separate program summary was not produced, she continued, as it was included as part of the Parole Board Report. In other words, no separate document exists and therefore no treatment summary can be provided. 1 Relying upon prior decisions of this office, Ms. Barker correctly noted that a public agency cannot provide a requester with access to a nonexistent record or that which it does not have and complies with the Act in affirmatively so indicating.
In support of the agency's position regarding the accessibility of the "complete SOTP parole report," Ms. Barker asserted:
The evaluation report provided to the Parole Board contained opinions and recommendations and is a preliminary report for the Parole Board to review. The Parole Board indicated the reasons for its decision and did not adopt the report or information in it as part of its decision. (See attached Parole Denied Order.) The Attorney General has repeatedly determined that preliminary documents provided to the Parole Board do not have to be provided to requestors given their preliminary status and because they were not adopted by the Parole Board as part of its decision. See 12-ORD-072, 06-ORD-174, 02-ORD-138, 93-ORD-136, 93-ORD-1.
Based upon this line of decisions, KSR maintained that the report in dispute retained its preliminary status and was properly withheld. This office agrees.
Both the courts and this office have applied the language of KRS 61.878(1)(i) and (j), commonly known as the "preliminary exceptions," in a variety of contexts. See
City of Louisville v. Courier-Journal and Louisville Times Company, 637 S.W.2d 658-660 (Ky. App. 1982);
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983);
University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992) (Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See 99-ORD-220; 02-ORD-86; 07-ORD-156. Guided by this evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status only upon being adopted by the agency as a basis for its final action. See OAGs 83-405, 84-98, 88-2, and 89-69.
Of particular significance, in 02-ORD-138 this office recognized that the Department of Corrections properly relied upon KRS 61.878(1)(i) and (j) in denying an inmate's request for copies of letters written to the Parole Board on his behalf as none of the letters were adopted as the basis for the decision of the Parole Board regarding his eligibility for parole. Likewise, in 93-ORD-136, the Attorney General concluded:
In 93-ORD-1 . . . we said that a letter from a member of the judiciary to the Parole Board setting forth the judge's opinion as to whether a person should be paroled is a preliminary document expressing personal opinions and recommendations, and not subject to public inspection unless incorporated into or made a part of the Parole Board's final decision on the matter. In addition, we also stated that a letter from a person to the Parole Board relative to a possible parole can be characterized as correspondence with a private person which can be exempt from public inspection under KRS 61.878(1)(h) and (i) [now codified as KRS 61.878(1)(i) and (j)] unless incorporated into or made a part of the Parole Board's final action relative to eligibility for parole.
Id., p. 3; see also 06-ORD-174. In responding to Mr. Hull's appeal, KSR confirmed that the requested SOTP parole report was not adopted, in whole or in part, as the basis for the decision of the Parole Board. This appeal presents no basis to depart from the aforementioned line of decisions; accordingly, this office affirms the denial by KSR of Mr. Hull's request for the SOTP parole report on the bases of KRS 61.878(1)(i) and (j).
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.
# 469
Distributed to:
James Hull, # 238139Dr. James J. Van NortAmy V. Barker
Footnotes
Footnotes
1 A public agency cannot produce that which it does not have nor is a public agency required to "prove a negative" in order to refute a claim that certain records exist in the absence of a prima facie showing by the complainant. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); 11-ORD-037 (denial of request for nonexistent records upheld in the "absence of any facts or law importing the records' existence"); 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring KSR to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011)(declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 11-ORD-074 ("existence of a statute, regulation, or case law directing the creation of the requested record creates a presumption of the record's existence, but this presumption is rebuttable"). Both initially and on appeal KSR explained that the DOC SOTP is excluded from application of the cited regulation and thus no separate "treatment summary" was created; KSR cannot produce a nonexistent record for inspection or copying and there is no basis upon which to find that KSR violated the Act in this regard.