June 30, 1997

In re: Thomas E. Brock III/Department of Corrections

Open Records Decision

This matter come to the Attorney General on appeal from the Department of Corrections's denial of the open records request of Mr. Thomas E. Brock III, dated May 8, 1997, for copies of all reports received from the Dismas-St. Patricks House by Parole Officer Mike Williams stating the reasons Mr. Brock was expelled from their program and violated his parole.

In his letter of appeal, dated May 30, 1997, Mr. Brock indicated that he had yet to receive a response to his request.

On June 4, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the Kentucky Parole Board and the Department of Corrections and enclosed a copy of Mr. Brock's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Hazel M. Combs, Assistant Director, Division of Probation and Parole, Department of Corrections, provided this office with a copy of the Department's response to Mr. Brock, dated June 17, 1997, relative to his open records request and the issues raised in the letter of appeal.

In her response, Ms. Combs stated:

In response to your open records request regarding documents provided by Dismas Charities to Parole Officer Mike Williams, your request is denied.

This denial is based on the statutory provisions of KRS 439.510 which states: "Information obtained by probation or parole officer to be privileged; exception: 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. Information shall be made available to sex offender treatment programs operated or approved by the Department of Corrections or the Department of Mental Health and Mental Retardation Services who request the information in the course of conducting an evaluation or treatment pursuant to KRS 439.265(5), 532.045(3), or 532.050(4)."

We are asked to determine whether the actions of the Department were consistent with the Open Records Act. For the reasons which follow, we conclude that, although the Department's response was procedurally deficient, its denial of the requested records was consistent with the Act.

We begin by noting that the Department's response was untimely. KRS 61.880(1) contains guidelines for agency response to an open records request, and requires that the response must be in writing and issued within three business days of receipt of the request. Mr. Brock's request was submitted by letter dated May 8, 1997. The Department responded by letter dated June 17, 1997. Thus, over a month elapsed between the date of his request and the date of the Board's response. We encourage the Department to review the cited provision to insure that future responses conform to the procedural requirements of the Open Records Act.

We next address the substantive issue. Among the records excluded from the application of the Open Records Act 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). As cited by the Department in its response to Mr. Brock, KRS 439.510 makes confidential:

All information obtained in the discharge of official duty by any probation or parole official shall be privileged. . . . Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet . . . unless otherwise ordered by such court, board or cabinet.

The Department indicated that the reports were received from the Dismas-St. Patricks House by the parole officer in the discharge of his official duties. Thus, under authority of KRS 439.510, the records would be exempt from disclosure and could properly be denied under KRS 61.878(1)(l). 96-ORD-147. Accordingly, we conclude that the Department's denial of the request was proper and consistent with provisions of the Open Records 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 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.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General

# 604

Distributed to:

Thomas E. Brock #110117

Roederer Correctional Complex

P.O. Box 69

LaGrange KY 40031

Mike Williams, Parole Officer

c/o Kentucky Parole Board

State Office Building

Frankfort KY 40601

Steve Durham

Office of Counsel

Department of Corrections

State Office Building

Frankfort KY 40601