Opinion
NO. 2017-CA-001404-MR
06-22-2018
JOHN C. MARTIN APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEE
BRIEFS FOR APPELLANT: John C. Martin, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Oran S. McFarlan, III Kentucky Justice & Public Safety Cabinet Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00460 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND THOMPSON, JUDGES. THOMPSON, JUDGE: John C. Martin appeals the Oldham Circuit Court's order denying his request, pursuant to the Open Records Act, for a copy of his Sexual Offender Treatment Program (SOTP) parole report. We hold the circuit court correctly found the SOTP parole report to be a preliminary document exempt from disclosure under Kentucky Revised Statutes (KRS) 61.878 and affirm.
Martin was convicted in the Anderson Circuit Court of multiple sex offenses and was required to complete a SOTP. Martin completed his SOTP at the Kentucky State Reformatory in LaGrange, Oldham County, Kentucky. The SOTP administrator, James J. Van Nort, then issued a memorandum notifying the Kentucky Parole Board (the Board) that Martin completed a SOTP and a "complete SOTP parole report" would be forwarded to the Board prior to Martin's parole hearing.
Martin appeared before the Board in August 2015, and was given a sixty-month deferment. The reasons given in the order denying parole were the seriousness of Martin's offenses, the violence involved, his prior misdemeanor convictions, and history of assaultive behavior. Martin then filed an open records request with the Kentucky Department of Corrections (KDOC) seeking a copy of the "complete SOTP parole report sent to the Parole Board." KDOC denied the request, responding the report was exempt from release because it was a "preliminary document prepared for the Parole Board that contains recommendations and opinions not intended to give notice of final action of a public agency." Martin appealed to the Kentucky Attorney General's Office, which issued a decision finding the report was a preliminary document exempted from release under KRS 61.878(1)(i)-(j).
Martin filed a complaint against KDOC in the Oldham Circuit Court challenging the Attorney General's decision. The circuit court conducted an in camera review of Van Nort's SOTP parole report and determined it contained no information adopted in whole or in part by the Board. Based on this finding, the circuit court agreed with the Attorney General's conclusion and granted summary judgment to KDOC. This appeal follows.
Summary judgment should be granted only when there are "no genuine issues as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Whether an agency has complied with the Open Records Act is a question of law reviewed de novo. Medley v. Board of Educ., Shelby County, 168 S.W.3d 398, 402 (Ky.App. 2004).
The burden is on the public agency opposing disclosure to establish a record is exempt from release. Id. This is because the "basic policy" of the Open Records Act is "that free and open examination of public records is in the public interest[.]" KRS 61.871. Although, certain records are exempt from disclosure under KRS 61.878(1), including "(i) [p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" and "(j) [p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[,]" these "exemptions . . . shall be strictly construed," KRS 61.871. "[O]nce such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status." Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953, 956 (Ky.App. 1983).
Martin argues Van Nort's memorandum designating his findings as a "complete" SOTP parole report precludes KDOC from claiming it is a preliminary document exempted from disclosure. We disagree.
Although the report may have completed Van Nort's role in Martin's parole hearing, it was created for the Board preliminary to its decision to grant or deny Martin parole. A similar situation was addressed in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky.App. 1982), in regard to KRS 61.878(1)(g) and (h). In that case, a reporter filed an open records request for the investigative reports maintained by the Internal Affairs Unit of the Louisville Police Department. City of Louisville, 637 S.W.2d at 658-59. These reports were created for the Police Chief to decide what action to take following a citizen complaint against a police officer. Id. at 659. Although the reports detailed the "completed" investigations of the Internal Affairs Unit, we concluded the files were preliminary records exempted under KRS 61.878(1):
It is the opinion of this Court that subsections (g) and (h) . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken.
Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.City of Louisville, 637 S.W.2d at 659. Similarly, Van Nort served as a fact-finder and provided opinions and recommendations for the Board to review. Only the Board had authority to grant Martin parole, and it was free to disregard the information contained in Van Nort's report. Thus, the circuit court correctly found the complete SOTP parole report was the type of preliminary note, correspondence, recommendation, and memorandum exempted from disclosure under KRS 61.878(1)(i)-(j).
Even if the SOTP parole report was preliminary, Martin argues there was evidence the Board adopted the report and its exempt status was lost. He cites to statutes and internal policies requiring the Board to review any information submitted by KDOC before making a final parole determination. However, reviewing materials exempt under KRS 61.878(1) does not equate to adopting the notes or recommendations contained therein. Preliminary notes, correspondence, recommendations, and memoranda are deemed adopted by a public agency's final determination when the "final actions . . . taken necessarily stem from them[.]" City of Louisville, 637 S.W.2d at 659-60.
The Board's order denying Martin parole did not stem from Van Nort's SOTP parole report. The report of a SOTP administrator is not dispositive to the Board's parole decision. Rather, Kentucky Parole Board Policies and Procedures 10-01(L) lists various factors for the Board to consider before making a parole recommendation, including the seriousness of the inmate's offense, whether violence was involved, prior criminal convictions, and history of assaultive behavior. These were the factors listed in the Board's order denying Martin parole. No findings, opinions, or recommendations obtained from Martin's completion of his SOTP were referenced or alluded to in the Board's order. With no evidence the Board adopted any information in Van Nort's SOTP report, the circuit court correctly granted summary judgment on Martin's open records request.
For the foregoing reasons, the order of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John C. Martin, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Oran S. McFarlan, III
Kentucky Justice & Public Safety
Cabinet
Office of Legal Services
Frankfort, Kentucky