25-ORD-090
April 3, 2025
In re: Donald Lynch/Roederer Correctional Complex
Summary: The Roederer Correctional Complex (“the Complex”) did not
violate the Open Records Act (“the Act”) when it redacted certain
material from an inmate risk assessment under KRS 439.510 and
copyrighted portions of the assessment under 17 U.S.C. § 106.
Open Records Decision
On February 20, 2025, inmate Donald Lynch (“the Appellant”) requested a
copy of his “risk assessment,” which had been conducted “about mid-February 2025.”
The Complex initially misunderstood this to be a request for a copy of a Parole Board
Risk Assessment and therefore denied the request under KRS 61.878(1)(j). However,
the Complex also denied the request under KRS 439.510, as the risk assessment “is
prepared from the PSI [presentence investigation] and contains information gathered
by probation and parole officers.” This appeal followed.
On appeal, the Complex no longer relies on KRS 61.878(1)(j). Rather, it now
agrees to provide the Appellant with the requested document in a redacted form
showing only its nonexempt portions. These portions consist of the “Appellant’s name
and DOC number; the assessment date [and time]; the name of the individual who
conducted the assessment; the type of assessment conducted; the status of the
assessment; and the final scores on the assessment.” As to those portions of the
record, this appeal is now moot. See 40 KAR 1:030 § 6.
The Complex asserts the remaining information is prepared through the
Kentucky Risk Assessment System (“KyRAS”) or Reentry Scoring Tool (“RST”), and
is therefore exempt under KRS 439.510, which is incorporated into the Act by
KRS 61.878(1)(l). According to the Complex, the redacted portions of the
assessment contain the assessment tools, questions, responses, and scoring, as well
as information derived from the Appellant’s presentence investigation or otherwise
obtained by probation and parole officers in the course of their duties. The Complex
asserts the redacted portions of the record are exempt for two reasons.First, the Complex relies on KRS 439.510 to redact the information obtained
from the Appellant that was used to complete the Appellant’s risk assessment.
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.
The Office has previously found that an inmate’s responses to questions asked in the
context of a risk assessment are not subject to inspection under KRS 439.510. See,
e.g., 20-ORD-198; 19-ORD-144; 17-ORD-022; 05-ORD-265; 01-ORD-120. This request
is no different. Therefore, the Complex did not violate the Act when it redacted
portions of the Appellant’s risk assessment that contain information obtained by
probation and parole officers during the presentence investigation and the
subsequent risk assessment.
Second, the Complex relies on KRS 61.878(1)(k) to redact from the records the
assessment tools, questions, responses, and scoring used in the Kentucky Risk
Assessment System. The Complex claims this material is exempt from disclosure
under the copyright protection provisions of 17 U.S.C. § 106, which is incorporated
into the Act by KRS 61.878(1)(k). The Office has previously found that such material
may be redacted under 17 U.S.C. § 106 and KRS 61.878(1)(k). See, e.g., 22-ORD-095;
20-ORD-198; 19-ORD-144. The Office reached that conclusion based, in part, on the
terms of an agreement between the Department of Corrections and the University of
Cincinnati Correctional Institute. See 20-ORD-198. That agreement provides that the
Department of Corrections “shall not disclose or transfer in any form either the
delivered [assessment tool] or any modifications of or derivative works based on the
[assessment tool] to third parties.” See id. There is no reason for the Office to depart
from these prior decisions. Therefore, the Complex did not violate the Act when it
redacted the exempt portions of the Appellant’s risk assessment.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#101
Distribution:
Donald Lynch, #148660
Michelle D. Harrison, Esq.
Ms. Renee Day
Ms. Ann Smith