Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Carlton Tucker Freeman, Jr. initiated this appeal by letter dated January 5, 2017, challenging the inaction of the Department of Corrections ("DOC"), Division of Probation and Parole ("Division"), relative to request letters that he directed to Deputy Commissioner Kimberly Potter-Blair on December 3, 6, and 26, 2016. In his December 3 letter, Mr. Freeman requested "transcripts and audio tapes" from his October 6, 2016, preliminary hearing. Having received no response, on December 26, 2016, Mr. Freeman again requested "copies of my audio tapes and all transcripts" but also requested "paperwork from all [personnel] working on my case with Probation & Parole. " 1 Mr. Freeman clarified that said audio recordings are from his "preliminary sex offender conditional discharge revocation hearing." The December 6 letter merely emphasized that Mr. Freeman has not filed "any criminal complaints" and is requesting "information of what I have requested through these subpoenas. " Inasmuch as Mr. Freeman's December 6 letter did not request any records nor was any subpoena included among the records attached to his January 5 appeal, further discussion of the December 6 letter is unwarranted, particularly since any issues concerning issuance of subpoenas or compliance therewith are not justiciable in this forum. See KRS 61.880(2); 08-ORD-142; 12-ORD-136. Based upon the following, this office affirms the Division's ultimate disposition of Mr. Freeman's request(s) for audio recordings and transcripts of his October 6, 2016, hearing and "paperwork" from all Division personnel regarding his case. 2
By letter dated January 17, 2017, the Division advised Mr. Freeman that audio recordings of preliminary and final sex offender conditional discharge revocation hearings are maintained by the Parole Board. Assistant Director Robert Taylor also provided Mr. Freeman with the name and contact information for the Parole Board's custodian of records in accordance with KRS 61.872(4). 3 Mr. Taylor further stated it was his "understanding that no transcripts or video are made of the hearings, but the Parole Board can clarify that with you." 4 With regard to "paperwork" generated by personnel working on his case, Mr. Taylor advised Mr. Freeman that it was unclear which records he was requesting. To the extent Mr. Freeman wanted records contained in his Probation and Parole file in the Kentucky Offender Management System ("KOMS"), Mr. Taylor advised that such records are protected from disclosure under KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). However, the Division explained that Mr. Freeman was entitled to receive a copy of his "conditions of SOCD," "supplemental sex offender conditions," sex offender registration form, the Administrative Law Judge decision, and the Parole Board final revocation decision.
Pursuant to KRS 61.874(1) and (3), the Division agreed to forward copies of said records to Mr. Freeman upon receipt of the reasonable copying fee and postage costs. 5 With regard to records that the Division ultimately agreed to provide, any related issues have been rendered moot per 40 KAR 1:030, Section 6. The Division's reliance on KRS 439.510 as the basis for denying access to "paperwork" generated by personnel assigned to Mr. Freeman's case, i.e. , the other documents responsive to his request, was justified.
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). 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. In 01-ORD-97, this office upheld a decision by the Division 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." 01-ORD-97, p. 4. See 05-ORD-035 (adopting 01-ORD-97 in holding that requested assessment report and reassessment reports prepared by parole officers fall within the parameters of KRS 439.510); 08-ORD-136 ("parole risk assessments" requested fell within the parameters of KRS 439.510); 12-ORD-155.
Here, as in these prior decisions, "the requested records are 'information obtained in the discharge of official duty by [a] probation and parole officer, ' and KRS 439.510 applies to the records by its express terms." 12-ORD-155, p. 3. In other words, Mr. Freeman "stands in the same shoes as any other open records requester" and, in the absence of authorization, "enjoys no greater entitlement to the results than any other member of the public." Id. Notwithstanding Mr. Freeman's failure to direct his December 3, 2016, and December 26, 2016, requests to the appropriate individual, the Division properly referred Mr. Freeman to the Parole Board for those records it does not maintain per KRS 61.872(4), agreed to provide him with copies of any nonexempt responsive documents upon receipt of payment in accordance with KRS 61.874(1) and (3), and properly withheld the remaining documents under KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). The Division's ultimate disposition of Mr. Freeman's requests is affirmed.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must 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 On appeal DOC denied receiving Mr. Freeman's December 26, 2016, request but acknowledged receipt of "something similar" by the Division of Local Facilities on January 3, 2017, namely "a letter with the date not visible and a form that is similar, but not an exact copy of the form dated December 28 attached to the appeal and directed to [the Division]." The exhibit attached to DOC's appeal response appears identical to Mr. Freeman's December 27, 2016, request form (which contains a handwritten date of December 28, 2016, near the top of the page); likewise, both copies of his December 26, 2016, letter to Deputy Commissioner Potter-Blair seem identical. The January 17, 2017, response by DOC addressed the December 3, 6, and 26, 2016, correspondence and this office will briefly address the merits in the interest of efficiency.
2 On appeal DOC advised that Mr. Freeman's December 3 and 6 letters were received in the Office of the Deputy Commissioner along with approximately 70 additional pages. The Office "identified the entire mailing as being appropriate for a response by the Division and thus forwarded the mailing to the Division at the DOC Central Office. This action was consistent with Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006); 07-ORD-241; 16-ORD-118. DOC was unable to determine with certainty the date on which Mr. Freeman's mailing was actually received in the Central Office and the delay in processing was partially attributable to his own actions; however, the agency should have issued a written response within five business days per KRS 197.025(7).
DOC has acknowledged "that it is likely outside the five days to send a response," and this office will not belabor the issue. However, this office does not find its argument that Mr. Freeman's appeal was premature or failed to comply with KRS 61.880(2)(a) and 40 KAR 1:030, Section 1, persuasive given that Mr. Freeman's appeal is dated January 5, 2017, and no response was mailed until January 20, 2017.
3 Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."
4 By letter directed to Mr. Freeman on January 12, 2017, the Parole Board responded to Mr. Freeman's January 5, 2017, and January 6, 2017, requests. Mr. Freeman's appeal is not perfected as to either of those requests given that the Board did not have an opportunity to issue a response prior to Mr. Freeman's January 5 appeal.
5 Mr. Taylor provided Mr. Freeman with a correct mailing address for the DOC Central Office and explained that, alternatively, he could request copies of records maintained in KOMS from Offender Information Services at his correctional institution to avoid postage costs and to receive the records more quickly.