Opinion
NO. 2012-CA-001343-MR
04-19-2013
BENJAMIN MARTIN, IN HIS OFFICIAL CAPACITY, PARALEGAL, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE
BRIEFS FOR APPELLANT: Timothy G. Arnold Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Alea Amber Arnett Justice and Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 11-CI-01676
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MAZE, JUDGES. CAPERTON, JUDGE: Appellant, Benjamin Martin, in his official capacity, paralegal, Kentucky Department of Public Advocacy, (DPA), appeals from an order denying its request for the production of certain parole guidelines risks and needs assessment forms from Appellee, Kentucky Department of Corrections. DPA argues that the risk assessment forms are not privileged or otherwise exempted from the Open Records Act. We affirm.
Kentucky Parole Board Policies and Procedures (KYPB) 10-01 I.M.1 provides in part that, "Each Board Member on a hearing panel shall review the Risk Assessment prepared by the Board's staff or by the Department of Corrections... before the hearing for the offender." The risk assessment form is an objective scoring instrument, which consists of the following static and dynamic factors:
(1) current offense;
(2) felony revocations;
(3) prior incarcerations;
(4) education or employment prior to arrest;
(5) marital status;
(6) age at time of parole eligibility;
(7) current classification level;
(8) completed educational, vocational, or treatment programs; and
(9) most severe disciplinary report in the last 2 years.
On August 19, 2011, DPA requested the production of completed risk assessments for 17 named inmates who had been denied parole at their most recent hearing. Corrections denied the request on August 25, 2011, citing Kentucky Revised Statutes (KRS) 61.878(1)(j). On October 24, 2011, the Attorney General of Kentucky affirmed the decision to deny inspection. 11-ORD-169. The Attorney General relied on KRS 439.510 in reaching his decision and did not express any opinion regarding the applicability of KRS 61.878(1)(j). The Franklin Circuit Court affirmed the decision of the Attorney General in an order entered on July 16, 2012. The trial court also relied upon KRS 439.510 and did not address KRS 61.878(1)(j). This appeal followed.
Risk assessments were not performed for 4 of the 17 inmates. Therefore, the production of 13 risk assessments is at issue.
DPA first argues that the risk assessment forms are not privileged under KRS 439.510 because the privilege only applies to information obtained from confidential sources.
In Medley v. Board of Educ., Shelby County, 168 S.W.3d 398, 402 (Ky. App. 2004), this Court set forth the applicable standard of review as follows:
We note at the outset that the circuit court's review of an Attorney General's opinion is de novo. As such, we review the circuit court's opinion as we would the decision of a trial court. Questions of law are reviewed anew by this Court.(Internal citations omitted). Although this Court is not bound by the opinions of the Attorney General, "they have been considered 'highly persuasive.'" Id. (citing Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001)).
KRS 439.510 states:
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 for Behavioral Health, Developmental and Intellectual Disabilities who request the information in the course ofThe confidentiality provision of KRS 439.510 is incorporated into the Open Records Act pursuant to KRS 61.878(1)(l).
conducting an evaluation or treatment pursuant to KRS 439.265(6), 532.045(3), or 532.050(4).
DPA cites Tabor v. Commonwealth, 625 S.W.2d 571 (Ky. 1981), in support of its argument that the privilege contained in KRS 439.510 only applies to information obtained from confidential sources. In Tabor, the defendant sought to prohibit a parole officer from testifying at the persistent felony offender (PFO) phase of trial "concerning Tabor's date of birth, the period of time served for prior felony convictions, and the admission and release dates from Kentucky penal institutions." Id. The Court noted that, "The legislature intended KRS 439.510 to be a 'privilege' statute consistent with some or all the conditions ordinarily present to warrant a privileged communication." Id. at 573. The Court held that "The status information required to prove the charges in KRS 532.080 may be testified to by any witness including probation and parole officers and is not privileged." Id.
We conclude that Tabor is factually distinguishable and does not control the case at bar. The Court in Tabor held that KRS 439.510 does not prohibit any witness including probation and parole officers from testifying in court to prove the elements of the PFO statute, KRS 532.080. DPA also cites Commonwealth v. Bush, 740 S.W.2d 942 (Ky. 1987), in support of its argument. In Bush, the Court held that KRS 439.510 does not prohibit a court from informing a defendant as to the factual contents and conclusions of a presentence investigation report (PSI) pursuant to KRS 532.050(4).
In Henderson v. Commonwealth, 507 S.W.2d 454, 458 (Ky. 1974), the Court interpreted KRS 439.510 as follows:
As we understand it, the statute (1) categorically prohibits without exception the use of this information as evidence and (2) prohibits its disclosure by order of any court other than one in which a proceeding giving rise to the probation and parole function was had or is pending. Obviously the legislature intended the use of such information to be confined to the purposes of probation and parole. In the absence of some constitutional invasion or limitation of which we are unaware, there does not appear to be any legal reason why the legislature may not so provide. The wisdom of the statute, of course, is not for the courts to question.KRS 439.510 states that, "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." While the risk assessment forms were not prepared by probation or parole officers, the forms were compiled using information obtained by parole officers. KRS 439.510 contemplates this situation by prohibiting the indirect disclosure of such information "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."
We hold that the plain language of KRS 439.510 does not permit the disclosure of the completed risk assessment forms. KRS 439.510 does allow the release of information to "others entitled under KRS 439.250 to 439.560 to receive such information...." However, this Court's review of those statutes finds the statutes lack guidance as to who are such "others." As the Supreme Court stated in Henderson, "The wisdom of the statute, of course, is not the courts to question." Id. at 458.
The disclosures permitted by the Court in Tabor and Bush were necessitated by the requirements of KRS 532.080 and KRS 532.050(4), respectively. There are no such competing statutes at issue in the present case. Additionally, concerns over the accuracy of the risk assessment forms may be alleviated by: (1) the opportunity to correct the PSI pursuant to KRS 532.050(6), which is used to generate the risk assessment forms; and (2) the opportunity to address the parole board pursuant to KRS 439.340(2).
Concerning the issue of the applicability of KRS 61.878(1)(j), while raised below no ruling was made by the trial court. And, as we have concluded that disclosure is not permitted under KRS 439.510, and because KRS 439.510 is incorporated into the Open Records Act pursuant to KRS 61.878(1)(l), we need not address the applicability of KRS 61.878(1)(j).
Accordingly, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Timothy G. Arnold
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Alea Amber Arnett
Justice and Public Safety Cabinet
Frankfort, Kentucky