22-ORD-265
December 13, 2022
In re: Christopher Morningstar/Luther Luckett Correctional Complex
Summary: The Luther Luckett Correctional Complex (the “Complex”)
did not violate the Open Records Act (“the Act”) when it withheld records
that
are
exempt
from
inspection
under
KRS 439.510
and
KRS 61.878(1)(l).
Open Records Decision
Inmate Christopher Morningstar (“Appellant”) submitted a request for “[a]ll
documentation in KOMS from 2020 [at] Fayette County Detention Center related to
parole revocation and/or conditional release as [an] alternative to incarceration.” In
a timely response, the Complex provided a copy of the results of his final conditional
discharge revocation hearing. The Complex denied the Appellant’s access to all other
responsive records because those records were “prepared or gathered by probation
and parole officers in the discharge of their official duties” and “are exempt from
disclosure . . . under KRS 439.510 and KRS 61.878(1)(l).” This appeal followed.
On appeal, the Complex states it will now provide, upon the Appellant’s
payment of the applicable copying costs, “the notice” he requested and the “decision
pages” it found after an additional search. The Complex now claims the part of the
appeal relating to the records it has made available to the Appellant is moot. Under
40 KAR 1:030 § 6, “[i]f the requested documents are made available to the
complaining party after a complaint is made, the Attorney General shall decline to
issue a decision in the matter.” Thus, the part of the appeal dealing with records that
have been made available to the Appellant is now moot.Turning now to the remaining records that the Complex withheld,
KRS 439.510 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.
In Commonwealth v. Bush, the Supreme Court of Kentucky explained that “[t]he PSI
would be a public record subject to the [Act], KRS 61.870, except for the fact that it is
excluded from public inspection by virtue of KRS 61.878(1)(j)[1] which exempts any
records made confidential by the General Assembly.” 740 S.W.2d 943, 944 (Ky. 1987).
The Bush court cited both KRS 532.050 and KRS 439.510 as statutes prohibiting the
disclosure of presentence investigation, or “PSI,” reports. Id.
KRS 439.510 is incorporated into the Act through KRS 61.878(1)(l) which
exempts from inspection “[p]ublic records or information the disclosure of which is
prohibited or restricted or otherwise made confidential by enactment of the General
Assembly.” This Office has previously found that records created by probation and
parole officers in the discharge of their official duties, like PSI reports, are exempt
from inspection under KRS 439.510. See, e.g., 20-ORD-165; 17-ORD-155; 11-ORD-
169. Here, the Complex withheld records that were “prepared or gathered by
probation and parole officers in the discharge of their official duties,” which are
exempt under KRS 439.510. Consequently, the Complex did not violate the Act when
it withheld records exempt from disclosure under KRS 439.510.
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
1
Since the decision in Bush, the General Assembly has amended KRS 61.878(1) to include
additional exceptions to the Act. The provision exempting records deemed confidential by an
enactment of the General Assembly is now found at KRS 61.878(1)(l).Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#428
Distributed to:
Christopher Morningstar #245022
Amy V. Barker