December 5, 2005
In re: Anthony Mattingly/Division of Probation and Parole
Open Records Decision
The question presented in this appeal is whether the Division of Probation and Parole violated the Open Records Act in the disposition of inmate Anthony Mattingly’s request, dated September 30, 2005, and received on October 4, 2005, for copies of certain casebook narratives and P.S.I. requests during the months of June through September 2004. For the reasons that follow, we affirm the Division’s disposition of Mr. Mattingly’s request.
By letter dated October 11, 2005, Division Director Lelia A. VanHoose denied Mr. Mattingly’s request for casebook narratives on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l).1 She explained that under the cited provision, “all information obtained by a Probation and Parole Officer in the discharge of official duty is considered to be privileged information and may not be disclosed to any person other than the court, parole board, cabinet or others entitled by statute.” With reference to his request for “any P.S.I. requests during the months of June till [sic] September of 2004,” Ms. VanHoose advised Mr. Mattingly that “following a diligent search of records maintained in this office, no [responsive] records were located . . . .” Shortly thereafter, Mr. Mattingly initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. Mattingly’s appeal, Justice and Public Safety counsel elaborated on the Division’s position. She explained:
Ms. VanHoose correctly cited KRS 439.510 and KRS 61.878(1)(l) in denying Mr. Mattingly’s request for casebook narratives from June 2004 - September 2004. KRS 439.510 states as follows:
All information obtained in the discharge of official duty by any probation and 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 439.510 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. (Emphasis added.)
KRS 439.510 applies to open records requests as an enactment of the General Assembly. KRS 61.878(1)(l). Since casebook narratives are compiled as a result of information obtained in the discharge of official duty by a probation & parole officer, the casebook narrative is exempt from disclosure under KRS 439.510 and KRS 61.878(1)(l).
In defense of the Division’s unproductive search for “any PSI requests during the months June - September, 2004,” counsel advised that “a public agency cannot afford a requester access to a record that it does not have or that does not exist . . .[, and t]he agency discharges its duty under the Open Records Act by affirmatively so stating.” In support, counsel cited 99-ORD-98, 99-ORD-150, and 04-ORD-43.
Because the issue of access to casebook narratives was one of first impression for this office, the Attorney General subsequently exercised his prerogative under KRS 61.880(2)(c) by propounding a series of questions to the Division. In response to our question concerning the content and character of a casebook narrative, Division counsel explained:
The casebook narrative consists of chronological notes regarding the case of an offender on supervision that is created by the probation & parole officer assigned to supervise the offender, supervisors of the probation & parole officer, or approved clerical staff. Casebook narratives are maintained electronically by the Department of Corrections, Division of Probation & Parole in the Probation & Parole Case Management System (PPCMS). The casebook narrative documents all contacts made on the case, when the offender reported to the probation & parole officer, phone calls made relative to the offender, record of records checks, and employment checks. Essentially, the casebook narrative consists of “notes” made by a probation & parole officer to help him or her track the case of an individual under supervision.
In response to our inquiry concerning the scope of the search for responsive P.S.I. requests, and the search methods employed, Division counsel advised:
The Division conducted a search for requests for Mr. Mattingly’s P.S.I. only during the months of June – September, 2004. As a state inmate, Mr. Mattingly is not entitled to “any P.S.I. request” submitted during the requested time frame. KRS 197.025(2) states that the Department of Corrections is not required to comply with a request for any record from any inmate confined in any facility unless the request is for a record that contains specific reference to that individual. KRS 197.025(2) applies to inmate requests as an enactment of the General Assembly. See KRS 61.878(1)(l). At the time Mr. Mattingly submitted the request that is now the subject of this appeal, the DOC Division of Probation & Parole conducted a limited search of the records maintained in the Director’s Office in Division of Probation & Parole, Frankfort, KY to see whether there was any record of a request for Mr. Mattingly’s PSI during the time frame he requested. Since that time, however, Mr. Mattingly has submitted yet another request for records of PSI requests submitted from June – November 2004. Following a diligent review of three (3) separate file folders maintained by the Department of Corrections (DOC) including: (1) Central Office offender record in custody of Offender Information Services of the DOC; (2) institutional offender record in custody of the Marion Adjustment Center (MAC); and (3) Probation and Parole offender record, maintained by the Division of Probation & Parole of the DOC, the DOC informed Mr. Mattingly that there is no record of any request for his PSI from June – November 2004. Under the Kentucky Open Records Act, a public agency cannot provide a copy of a record that the agency does not have or which does not exist. There is simply no record of anyone having requested Mr. Mattingly’s PSI during the months of June – September 2004.
Based on these well-researched and well-reasoned responses, we affirm the Division’s disposition of Mr. Mattingly’s request.
As noted, KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), provides:
All information obtained in the discharge of official duty by any probation and 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 or cabinet.
In construing this provision, the Attorney General recently observed:
Little has been written about the purposes underlying the privilege. However, in Commonwealth v. Bush, Ky., 740 S.W.2d 943, 944 (1987), the Kentucky Supreme Court suggested that its purpose is “to protect the sources of confidential information, matters of opinion, and comments of a personal and nonfactual nature . . . .” In Bush, above, this provision, along with KRS 532.050(4), precluded the requester, a criminal defendant ultimately convicted of murder, from obtaining a copy of his presentence investigation report, prepared by the Division of Probation and Parole.
Echoing the Court’s decision in Bush, above, in OAG 88-14 the Attorney General affirmed the agency’s denial of an inmate’s access to records generated by his parole officer and contained in his parole file. Similarly, in OAG 90-32, this office upheld the nondisclosure of a “special report” prepared by the Division of Probation and Parole to the inmate to whom the report related. See also OAG 92-125 (affirming denial of inmate request for his pre-parole progress report); 94-ORD-71, 98-ORD-42, 99-ORD-216 (affirming denial of inmate request for presentence investigation reports).
01-ORD-97, p. 4. In 01-ORD-97, we upheld the Division’s decision to withhold “contemporaneous handwritten notes” prepared by a probation and parole officer that related to a parolee and were located in his parole file, concluding that these records “[fell] squarely within the parameters of the privilege established at KRS 439.510.” 01-ORD-97, p. 4.
The casebook narratives to which Mr. Mattingly requests access also “fall squarely within the parameters” of the privilege. The Division explains that these records are “[e]ssentially . . . ‘notes’ made by a probation & parole officer to help him or her track the case of an individual under supervision,” much like the records in dispute in 01-ORD-97. Here, as in the cited decision, we affirm the Division’s denial of Mr. Mattingly’s request.
The Division’s position relative to production of nonexistent records is equally well-taken. On the subject of adequate documentation of an agency’s search, this office has observed:
The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or have been destroyed. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203. We have also recognized that it is not our duty to investigate in order to locate documents which do not exist or have been destroyed. OAG 86-35. As we observed in OAG 86-35, at page 5, “This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents.” However, since July 15, 1994, when the amendments to the Open Records Act took effect, we have applied a higher standard of review relative to denials based on the nonexistence, or here the destruction, of the requested records. In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records.
94-ORD-141, p. 5. In the appeal before us, the Division documented the efforts that were made to locate records responsive to Mr. Mattingly’s request. To this extent, it discharged its duty and satisfied the higher standard of review which we have applied since the enactment of the 1994 amendments to the Act.
Moreover, we believe that the search methods employed by the Division were those which could reasonably be expected to produce the records requested. 95-ORD-96. This is the standard by which the Attorney General measures the adequacy of an agency’s search for public records. Since nothing appears “to raise the issue of good faith,” we “need not go further to test the expertise of the agency, or to question its veracity . . . .” 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). The record is devoid of evidence suggesting a purposeful attempt on the part of the Division to evade its duty to conduct an adequate search for responsive records. We therefore affirm the Division’s denial of Mr. Mattingly’s request on the basis of the nonexistence of any responsive records.
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.
Gregory D. Stumbo
Amye L. Bensenhaver
Assistant Attorney General
Anthony Mattingly, #115494
Marion Adjustment Center
95 Raywick Road
St. Mary, KY 40063
Lelia A. VanHoose, Director
Division of Probation and Parole
Department of Corrections
275 East Main Street
Frankfort, KY 40602-2400
Emily Dennis, Staff Attorney
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, 2nd Floor
Frankfort, KY 40601