NOT TO BE PUBLISHED
97-ORD-108
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