Opinion
Opinion By: Andy Beshear,Attorney General,James M. HerrickAssistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Division of Probation and Parole ("P&P") violated the Kentucky Open Records Act in its disposition of Kentucky State Reformatory inmate Leonard Stevenson's January 3, 2019, request for a copy of his pre-sentence investigation ("PSI") report from February 2014. We find no substantive violation of the Act.
In his letter of appeal dated January 17, 2019, and received in this office on January 23, 2019, Mr. Stevenson claimed P&P had not responded to his request. Responding to the appeal on behalf of P&P, the Justice and Public Safety Cabinet indicated that P&P had received the request on January 7, 2019, and issued a response on January 9, 2019, which it attached. P&P's response was a denial of the request with the explanation: "Per CCP 28-01-01 section F, the PSI Report shall be treated as [a] confidential document pursuant to KRS 439.510. These reports cannot be distributed to anyone that is not authorized to possess them. . . . The Court is authorized to provide you the opportunity to review and make changes to your PSI, with your attorney, prior to Sentencing. This is the only occasion in which you have the ability to review your PSI."
The agency's response to the appeal included a copy of Mr. Stevenson's Judgment of Conviction and Sentence, in which the court noted that a copy of the PSI report "was provided to Defendant and his counsel for review and correction." It is well established in the decisions of this office that a PSI report is exempt from an inmate's inspection under these circumstances pursuant to KRS 439.510 as incorporated into the Open Records Act by KRS 61.878(1)(l). 14-ORD-176; 12-ORD-073; 10-ORD-041; 06-ORD-062. Accordingly, Mr. Stevenson was not entitled to view this record.
We find a procedural violation, however, in that P&P failed to cite the applicable exception to the Open Records Act as required by KRS 61.880(1). In this case, KRS 61.878(1)(l) exempts from disclosure records made confidential by act of the General Assembly, and KRS 439.510 is made applicable through this subsection. In all other respects, however, we find no violation of the Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.