Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in not providing an inmate with a copy of the inmate's presentence investigation report ("PSI"). We find that EKCC did not violate the Open Records Act in not providing an inmate with a copy of the inmate's PSI.
Chris Hawkins ("Hawkins") submitted an open records request to EKCC on July 18, 2014. Hawkins requested "copy of Presentence Investigation (PSI). Case # 99CR2929. I waived the (PSI) prior to sentencing . . . ." EKCC responded on July 18, 2014, stating:
The Department of Corrections will provide an inmate the opportunity to be advised of the factual contents and conclusions contained in a PSI, if the inmate waived the PSI prior to sentencing pursuant to KRS 532.050(5). This opportunity to inspect the PSI, however, is the exception to the rule. . . . A review of the final judgment(s) entered in Indictment # 99CR2929 states you waived your PSI and therefore was not informed of the factual contents and conclusions contained in the PSI and were not given an opportunity to controvert the report at final sentencing. KRS 61.884 does not create a right for you to inspect or receive a copy of the PSI from the Dept. of Corrections. KRS 439.510 and KRS 61.878(1)(l) foreclose access to this record . . . . 1
Hawkins initiated this appeal on July 22, 2014, arguing that he has "a RIGHT to view and be advised of the factual contents of my PSI." EKCC responded on July 30, 2014, arguing that "the PSI is prepared by probation and parole officers from information obtained by probation and parole officers. . . . Under KRS 439.510, information obtained by probation and parole officers in the discharge of their duties is privileged. " 2
KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), provides that "all information obtained in the discharge of official duty by any probation or parole officer shall be privileged" and that "such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled . . . to receive such information." In
Com. v. Bush, 740 S.W.2d 943 (Ky. 1987), the court held that "the PSI is also made confidential by KRS 439.510." Id. at 944. Following Bush , this office has repeatedly found PSIs to be exempt from disclosure under KRS 439.510. See 14-ORD-138; 12-ORD-073; 05-ORD-245. Accordingly, EKCC did not violate the Open Records Act in withholding Hawkins' PSI.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Chris Hawkins # 103061Sonya WrightAmy V. Barker
Footnotes
Footnotes
1 EKCC further stated that "your current segregation housing assignment prohibits you from moving freely about the facility; therefore you cannot conduct an on-site inspection in any institutional office. . . . EKCC is under no obligation to bring the original record to your cell for your review . . . ."
2 EKCC further argued that:
While the Department of Corrections acknowledges that pursuant to Com. v. Bush, 740 S.W.2d 943 (Ky. 1987), an inmate may be advised of the factual contents of his PSI prior to sentencing, a copy of the record is not available to an inmate through an open records request. The Department determines how and when an inmate may be advised of the contents of the PSI. The how and when of the delivery of this information to an inmate is outside the purview of the Open Records Act. . . . Inmates in segregation units necessarily have limits on their access to other locations within an institution.
Hawkins replied on Aug. 1, 2014 that " Bush does not grant KDOC an exception or an indefinite 'stay' due to my being housed in protective custody." We are uncertain what to make both of EKCC's argument and its relevance, as Hawkins requested a copy of the record instead of inspection, and we find the above analysis to be determinative.