Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Reformatory violated the Open Records Act in denying Virgil Colyer's request of June 2, 2016 for a "complete SOTP parole report submitted from the SOTP program to the Ky Parole Board in July 2015." We find that Kentucky State Reformatory did not violate the Open Records Act in denying Virgil Colyer's request.
The request was submitted in writing on June 2, 2016, and on June 3, 2016, Connor Jeffries, Offender Information Specialist, denied the request pursuant to "KRS 61.878(1)(i)(j)" [sic]. The denial further explained that "this document/report is a preliminary document that is requested by and prepared for the Parole Board that contains recommendations and opinions not intended to give notice of final action of a public agency. Therefore, this document is exempt from release."
Upon receipt of this office's notification of receipt of the open records appeal, Amy V. Barker, Assistant General Counsel, Justice and Public Safety Cabinet, responded, by letter dated June 24, 2016, on behalf of Kentucky State Reformatory. Ms. Barker asserted that the requested Sex Offender Treatment Program (SOTP) report contained opinions and recommendations and is a preliminary report, and that the Parole Board did not adopt the report or information in it as part of its decision. Ms. Barker relied on KRS 61.878(1)(i) and (j), and prior decisions of this office which have held that preliminary records not adopted by the Parole Board are not releasable. Ms. Barker also cited the fact that the report contains information gathered by a probation and parole officer in the conduct of his duties and the report is therefore exempt pursuant to KRS 61.878(1)(l) and KRS 439.510. In support of this line of reasoning for not disclosing the report, Ms. Barker referred to other decisions of this office. 1
KRS 61.878(1) provides that "the following public records are excluded from the application of KRS 61.870 to 61.884 . . . (i) Preliminary drafts, notes . . . (j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In 14-ORD-008, a request by an inmate for a "complete SOTP parole report" was denied on the basis of KRS 61.878(1)(i) and (j) as the report was not adopted, in whole or in part, as the basis for the Parole Board's decision regarding the requester's eligibility for parole and thus retained its preliminary status. In 14-ORD-129, a copy of which is attached, we stated that "[t]his office has repeatedly held that documents prepared for the Parole Board that are not incorporated as part of its final decision are preliminary documents exempted under KRS 61.878(1)(i) and (j). See 14-ORD-008 (SOTP report exempted as a preliminary document); see also 06-ORD-174; 93-ORD-1." Accordingly, Kentucky State Reformatory did not violate the Open Records Act in withholding the SOTP report as a preliminary document. 2
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.
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