Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal filed by Phillip Johnson on August 26, 2015, and this office being sufficiently advised, we find that the Division of Probation and Parole Interstate Compact Office did not violate the Open Records Act in denying that portion of Mr. Johnson's June 10, 2015, request relating to his Interstate Compact Parole Officer's file, "including all personal notes, work product, or denials of Early Parole Discharge . . . ." Although the Interstate Compact Office furnished Mr. Johnson with all records responsive to the remainder of his request, the office relied on KRS 439.150 , incorporated into the Open Records Act by KRS 61.878(1)(1), 1 in refusing to disclose his "Interstate Compact Parole Officer's file" in a well-reasoned and well-written response. Based on 01-ORD-97 and 12-ORD-155, 2 we affirm the actions of the Interstate Compact Office. Copies of those open records decisions are attached. We adopt their analysis in full.
KRS 439.510 establishes the privilege upon which the Interstate Compact Office relies. That statute 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. Information shall be made available to sex offender treatment programs operated or approved by the Department of Corrections or the Department for Behavioral Health, Developmental and Intellectual Disabilities who request the information in the course of conducting an evaluation or treatment pursuant to KRS 439.265(6), 532.045(3), or 532.050(4).
Analyzing the rationale supporting the privilege, in 01-ORD-97 the Attorney General quoted
Commonwealth v. Bush, 740 S.W.2d 943, 944 (Ky. 1987), in which the Kentucky Supreme Court suggested that the purpose is "to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . ." No doubt, Mr. Johnson's interstate compact parole officer's file consists of "personal notes, work product, [and] denials of early Parole Discharge" that are rife with "sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature" to which Mr. Johnson was properly denied access. The privilege expressly applies to "information obtained in the discharge of official duty by any probation and parole officer. " (Emphasis added.) The fact that the disputed records were generated by an interstate compact parole officer does not, therefore, alter our analysis. We affirm the Interstate Compact Office's partial denial of Mr. Johnson's request.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
2 In 01-ORD-97, we affirmed the Division of Probation and Parole's denial of an inmate request for her "complete parole file." In 12-ORD-155, we affirmed the Division's denial of urinalysis test results taken while requesting inmate was on parole.