NOT PUBLISHED 

94-ORD-71

June 6, 1994

IN RE: John J. Irwin/Kentucky State Reformatory

OPEN RECORDS DECISION

This appeal originated in a request for records submitted by Mr. John J. Irwin, an inmate at Kentucky State Reformatory, to the Reformatory's records custodian on April 4, 1994. Mr. Irwin requested a copy of his presentence investigation report (PSI). On behalf of Kentucky State Reformatory, Ms. Theresa Edward, Offender Records Specialist, denied his request on April 6, 1994, advising Mr. Irwin that the report was exempt from the application of the Open Records Law by operation of KRS 61.878(1)(j), now codified and hereinafter referred to as KRS 61.878(1)(k), which incorporates KRS 532.050(4) relating to presentencing procedures for felony convictions. In support of this position, Ms. Edwards cited OAG 92-49 in which this Office upheld a correctional facility's decision to withhold an inmate's PSI.

In his letter of appeal, Mr. Irwin states that he was furnished with a copy of his PSI at his sentencing hearing on June 6, 1993, but was unable to adequately contest the mistakes in that report due to the brevity of the proceedings. He expresses the view that both the Parole Board and the Department of Corrections should have an accurate report in their custody.

We are asked to determine if the Kentucky State Reformatory properly denied Mr. Irwin's request pursuant to KRS 61.878(1)(k) and KRS 532.050(4). For the reasons set forth below, we conclude that the Reformatory's denial was entirely consistent with the Open Records Act.

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)(k). KRS 439.510 makes confidential:

Because the report is prepared by a probation officer, pursuant to KRS 532.050(2), the Kentucky Supreme Court has interpreted this provision to extend to the PSI. Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987).

In Bush, supra, the Supreme Court addressed the question of whether a criminal defendant is entitled to a copy of his or her PSI at the pre-sentence and post-conviction stages. There the Court held that KRS 532.050(4), which requires a court to "advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation . . . ," does not require that court to release a copy of the report. Directly addressing the question of whether the PSI falls within the purview of the Open Records Act, the Supreme Court observed:

Bush, supra at 944. The court concluded that in order to satisfy the "fair opportunity" requirements of KRS 532.050(4), a defendant who waived his PSI at sentencing, like Mr. Bush, "is entitled to being advised by the prison official who has custody of the PSI of the factual contents and conclusions therein." Bush, supra at 944 (emphasis in original). See also, OAG 91-194; OAG 92-49.

It should be noted that KRS 532.050(4) was amended in 1990, and now precludes waiver of the presentence investigation

report. In addition, it requires a court to provide defendant's counsel with a copy of the report, excluding the sources of confidential information. These amendments should eliminate any doubt as to whether the requirements of KRS 532.050 have been satisfied.

Mr. Irwin acknowledges that he received a copy of his PSI at his sentencing hearing, but argues that he was not afforded a fair opportunity and a reasonable period of time to refute the contents of the report. We believe that the issues he raises are not properly cognizable under the Open Records Act. Mr. Irwin's relief lies elsewhere.

Mr. Irwin may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/476

Distributed to:

Ms. Theresa Edwards

Offender Records Specialist

Kentucky State Reformatory

LaGrange, KY 40031

Mr. John J. Irwin, #113887

Kentucky State Reformatory

3001 W. Highway 146

LaGrange, KY 40032