P. Prison, parole and probation reports
1. Pre-sentence reports. It is possible that a reporter might argue the pre-sentence reports should be available as public records, in light of the Ninth Circuit's decision recognizing a constitutional right of access to pre-sentence reports prepared for a judge before sentencing. See United States v. Schlette, 842 F.2d 1574 ( 9th Cir. 1988). However, note that Alaska rules of court provide that any information contained in a pre-sentence report is, by rule, confidential. Alaska R. Crim. P. 32.1(b)(3).
2. Pre-parole reports. In order to determine whether a prisoner is suitable for discretionary parole, the parole board must consider a pre-parole report. This report includes the pre-sentence report to the sentencing court, recommendations made by the sentencing court, by the prosecuting attorney, by the defense attorney, and statements made by the victim or the prisoner at sentencing, the prisoner's institutional history, recommendations of the correctional facilities staff, and other things. The pre-parole report for the most part is available to pretty much everyone but the public: It may be disclosed to the parole board, the sentencing judge, the prosecuting and defense attorneys, the prisoner, the prisoner's attorney, the attorney for the parole board, the staff of the board, and others who have access to parole board information. Otherwise, however, it is confidential. It is possible that a reporter might argue the pre-parole reports should be available notwithstanding the confidentiality provision of AS 33.16.170, in light of the Ninth Circuit's decision recognizing a constitutional right of access to pre-sentence reports prepared for a judge before sentencing. See United States v. Schlette, 842 F.2d 1574 (9th Cir. 1988). However, this will not necessarily be the case since pre-sentence reports are prepared by employees of the judicial branch, and solely for use by the sentencing judge, and the right of access analysis has been applied generally to judicial proceedings and documents. But see, D.Ak. Crim.R.32.2.The parole board is an executive branch agency, and the reports and records of such agencies are traditionally analyzed in terms of public records laws where such confidentiality provisions are recognized and honored as exceptions to the extent the legislature provides. If the question arises, it will probably need to be answered by the courts. Subject to any constitutional issues Alaska courts have not addressed yet, release of state pre-sentence reports is governed by Alaska Criminal Rule 32.1(b). See generally, 1994 Police Records AG Opinion, § F.2.
3. Convict photographs. A victim is entitled upon request to a photograph of an offender who is released or escapes from incarceration, but must keep it for personal use only and cannot distribute it, according to AS 33.30.013(e). However, the limitation on use or access set forth in this statute may be open to question, since the Alaska Supreme Court has recognized in other contexts that convicts have no reasonable expectation of privacy in photographs of them in connection with their status as convicted offenders. E.g., in the context of a challenge to the Alaska Sex Offender Registry Act, with respect to the state's explicit constitutional right of privacy, the Alaska Court of Appeals noted the constitutional protection of an individual's privacy depends on the factual context and the competing interests between society and the individual. The court said that at least in the context of convicted sex offenders, the offender's assumed subjective expectation of privacy in biographical information gathered and released pursuant to the statute must yield to society's public safety interest. Patterson v. St., 985 P.2d 1007 (Alaska App. 1999). The court found that any subjective expectation of privacy held by the sex offenders in matters already of public record, such as details of conviction or date of birth, or in his physical appearance — as represented by his photograph, or in his employer's address, was not an expectation society would recognize as reasonable. Id. Comp. Doe v. State, 183 P.3d 999, 1002 (Alaska 2008) (referencing posting of convicts’ photos on internet as part of ASORA implementation).
4. Prisoner data. AS 33.30.211 provides that the commissioner of Department of Corrections shall adopt regulations providing for the confidentiality of documents that are transmitted to the correctional facility with a prisoner, including the pre-sentence report, and other information of the probation office or of the court that may affect the person's rehabilitation. Presumably, this confidentiality provision cannot supersede the right of access the public might have to documents that are otherwise public, pursuant to the Schlette case, or other provisions of law.
5. Monitored phone calls. Prison officials may monitor prisoners' telephone calls to preserve security and order, and to protect the public, if they post a warning informing the prisoner that this may be done. Recordings of prisoners' telephone calls are confidential. AS 33.20.231(c).
All records pertaining to the care and custody of prisoners are open to public inspection, except those portions that reveal the identity of a confidential informant, endanger a person’s life or physical safety, or jeopardize an ongoing criminal investigation. A.R.S. § 31-221(C); see, e.g., KPNX-TV v. Superior Court, 183 Ariz. 589, 593, 905 P.2d 598, 602 (Ct. App. 1995) (determining that the state has a legitimate security concern about disclosing a videotape showing undercover officers because of the risk, however slight, that they might be harmed).
A prisoner’s medical history, however, is confidential and may be used only in accordance with A.R.S. § 41-1606(B) and other applicable laws.
Inmate records created by the Department of Corrections are exempt from the FOIA. Ark. Code Ann. § 12-27-113(e)(2).
The parole board must make public its recommendation for parole. Ark. Code Ann. § 16-93-206. However, there is no statutory or case law concerning whether subsequent parole reports are subject to the FOIA.
Probation files that are not part of expunged records are open under the FOIA. Ark. Op. Att’y Gen. No. 99-350.
Prison records are generally exempt. Cal. Gov’t Code § 6254(f). However, transcripts of parole hearings and any statements, recommendations, or other materials considered and incorporated therein, unless the material is confidential in order to preserve institutional security and the security of others, shall be made available to the public no later than 30 days from the date of the hearing. Cal. Penal Code § 3042. Probation reports filed with the court are open for public inspection from the date judgment is pronounced or probation granted (or in the case of a report arising out of a previous arrest from the date the subsequent accusatory pleading is filed) to and including 60 days from the date judgment is pronounced or probation granted, whichever is earlier. Cal. Penal Code § 1203.05. Thereafter, access to probation reports requires either a court order upon the filing of a petition by the individual seeking access, or a court order upon the court’s own motion. Id.
County jail records are public records open to inspection under Colo. Rev. Stat. § 17-26-118.
Prison records are open to public inspection since no specific exemption applies. Records of the Division of Correctional Industries are public under Colo. Rev. Stat. § 17-24-107.
Parole records kept by the Division of Adult Services of the Department of Corrections are closed to the public under Colo. Rev. Stat. § 17-2-104. Other parole records that are records of official actions of a criminal justice agency are open under Colo. Rev. Stat. § 24-72-303.
· Juveniles. Closed (except to persons having consent of court, limited access to law enforcement officers, any attorney of record in a juvenile or domestic action in which the juvenile is named, the state department of human services, parent or guardian of the juvenile, principal of the school where the juvenile is enrolled.). Colo. Rev. Stat. § 19-1-304(1)(c).
· Adults. Adult probation records which are records of an official action of a criminal justice agency are open public records under Colo. Rev. Stat. § 24-72-303(1).
District of Columbia
The privacy exemption, D.C. Code Ann. § 2-534(a)(2), or the investigatory records exemption, id. at § 2-534(a)(3), may apply. See also Hines v. Board of Parole, 567 A.2d at 913 (exempting disclosure of inmates' pre-sentence reports, mental health assessments, academic records and records of progress within prison). The court generally should attempt to balance the privacy interests of those who are the subjects of the documents in question, or those harmed by their release, with the public interest in the release of the documents. See id. at 912. However, disclosure of certain portions may be required pursuant to D.C. Code Ann. § 2-536(a)(3) if those portions reflect the final opinion in an adjudicatory proceeding.
The Georgia Department of Corrections and the Georgia Board of Pardons and Paroles each maintain searchable online databases providing certain offender http://www.dcor.state.ga.us/GDC/OffenderQuery/jsp/OffQryForm.jsp and parolee information http://www.pap.state.ga.us/ParoleeDatabase/ .
However, a 2014 Atlanta Journal-Constitution review found the Georgia Board of Pardons and Paroles to be one of the nation’s most secretive, seldom explaining any of its decisions. In general, all information, both oral and written, received by the members of the board and all documents coming into their possession by reason of the performance of their duties are “confidential state secrets until declassified by the board.” O.C.G.A. § 42-9-53(b)(1).
Statute making confidential the names and other identifying information of the persons and entities involved in executions, including those who manufacture the drug or drugs to be used, did not violate the Act or inmate's First Amendment guarantee of free speech. Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794, cert. denied, 135 S. Ct. 449, 190 L. Ed. 2d 340 (2014).
The Department of Public Safety may not make a blanket denial of access to inmates for all records in their institutional files; only records constituting “reports” prepared or compiled during the criminal law enforcement process may be withheld. Withholding of Inmate Records and Regulations on Inmate Access Rights, OIP Op. Ltr. No. 05-14 (May 26, 2005). The Department of Public Safety may impose restrictions on inmates’ rights under the UIPA under the same standard applicable to the imposition of restrictions on inmates’ constitutional rights, i.e., where those restrictions are reasonably related to legitimate penal interests. Id.
The OIP also has determined that the Hawai‘i Paroling Authority (“HPA”) must provide inmates seeking to appeal an adverse parole decision with the inmates’ Minimum Decision Records, a written HPA record that sets forth the parole board’s recommendations for the inmates’ minimum prison term. See Minimum Decision Records, OIP Op. Ltr. No. 17-04 (June 28, 2017).
Idaho Code § 74-105(4)(v) provides that Department of Correction records of a prisoner shall not be disclosed to any other prisoner or probationer. In addition, Idaho Code § 74-105(14) provides that records of a prisoner or former prisoner in the custody of any state or local correctional facility are exempt from disclosure when the request is made by another prisoner in the custody of any state or local correctional facility. Finally, Idaho Code § 74-105(4)(iii) provides that Department of Correction records that reflect future transportation or movement of a prisoner are exempt from disclosure.
The Indiana Department of Correction maintains a searchable offender registry at http://www.in.gov/apps/indcorrection/ofs/ofs. Prison, parole, and probation reports fall under the open access rule. See Smith v. State, 873 N.E.2d 197, 200–01 (Ind. Ct. App. 2007) (citing Indiana Code Section 5-14-3-3 as governing an inmate’s right to receive a copy of prison records showing budget allocation towards prisoner meals, subject to a statutory fee).
1. "The following information regarding individuals receiving services from the department or from the judicial district departments of correctional services under chapter 905 is confidential and shall not be disseminated by the department to the public:
a. home street address of the individual receiving services or that individual's family;
b. department evaluations;
c. medical, psychiatric or psychological information;
d. names of associates or accomplices;
e. name of employer;
f. Social Security number;
g. prior criminal history including information on offenses where no conviction occurred;
h. family and personal history;
i. financial information;
j. information from disciplinary reports and investigations other than that identified in subsection 1, paragraph 1;
k. investigations by the department or other agencies which are contained in the individual's file;
l. department committee records which include any information identified in paragraphs a through k. A record containing information which is both public and confidential which is reasonably segregable shall not be confidential after deletion of the confidential information;
m. presentence investigations as provided under chapter 901;
n. pretrial information that is not otherwise available in public court proceedings; and
o. correspondence directed to department officers or staff from an individual's family, victims, or employers of a personal or confidential nature. If the custodian of the record determines that the correspondence is confidential, in any proceeding under chapter 22 the burden of proof shall be on the person seeking release of the correspondence, and the writer of the correspondence shall be notified of the proceeding."
Iowa Code § 904.602. See also, 76 Op. Att'y Gen. 415 (January 21, 1976) (Board of parole subject to open meetings law).
Inmate rosters are open for public inspection. Kan. Att’y Gen. Op. 1984-124. However, the correctional records pertaining to an identifiable inmate are exempt from disclosure. K.S.A. 45-221(a)(29); 1984-124; 1982-226.
Prison Health Services, a private entity that contracts with the Kansas Department of Corrections to provide medical and mental health services for inmates, is not a public agency. Thus personnel records owned and maintained by Prison Health Services are not public records subject to disclosure under the Kansas Open Records Act. Cited herein: K.S.A. 45-216; 45-217.
"[R]ecords containing the names of persons lodged in a jail as inmates must be released." 93-ORD-102. In addition, the visitors log of a jail and the jail's general business records are not exempt from disclosure. Id.
However, Ky. Rev. Stat. 197.025 exempts from disclosure certain jail records if release of those records would "constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution or any other person." See 95-ORD-121 (discussing Ky. Rev. Stat. 197.025). Ky. Rev. Stat. 197.025 limits the dissemination of records where “disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.”
An inmate may request copies of all non-confidential information contained in his file. Commonwealth of Kentucky, Dep’t of Corr. v. Chestnut, 250 S.W.3d 655, 658 (Ky. 2008). Though an inmate’s open records request is subject to the limitations contained in Ky. Rev. Stat. 197.025, an inmate is not required to submit a particularized open records request in order to access his own file. Id. at 662. As such, the Department of Corrections could not enforce such a limitation. Id. (“[A]n administrative agency ‘cannot by its rules and regulations, amend alter, enlarge or limit the terms of legislative enactment.’”).
Pre-parole reports, clemency reports, and the information gathered by the pardons and parole boards staffs are exempt. La. Rev. Stat. Ann. § 15:574.12(A). Records of pretrial intervention program are exempt until charges are dropped, then covered unless expunged. Op. Att'y Gen. 90-588.
Generally available, 1 M.R.S.A. § 402(3-A). “Public records” is defined to specifically include the following:
- Records relating to prisoner furloughs to the extent they pertain to a prisoner's identity, conviction data, address of furlough and dates of furlough;
- Records relating to out-of-state adult probationer or parolee supervision to the extent they pertain to a probationer's or parolee's identity, conviction data, address of residence and dates of supervision; and
- Records to the extent they pertain to a prisoner's, adult probationer's or parolee's identity, conviction data and current address or location, unless the Commissioner of Corrections determines that it would be detrimental to the welfare of a client to disclose the information.
The Department of Parole and Probation of the Department of Public Safety and Correctional Services has promulgated regulations that define "sociological data" in the Code of Maryland Regulations ("COMAR") 12.11.02.02B(13). Pursuant to those regulations, generally "sociological data" includes: personal identification information (e.g., income, address, phone number, Social Security number, etc.); family information (e.g., marital status, identity of dependents or relatives, etc.); personal financial information; medical information; personal beliefs and religious preference information; and other types of personal history information. Id. If the agency has adopted rules or regulations that define sociological information, then the custodian shall deny inspection of the part of the public record containing sociological information. § 4-330. The PIA does not delineate the type of information subject to this exemption. Rather, the agency must define what constitutes sociological information by regulation before access to such information may be denied. Id. In addition, information that identifies an individual by an identifying factor is protected from disclosure by § 4-401. Identifying factors include: address, description, finger or voice print, number, or picture. §§ 4-401, -501. However, access may be permitted for research purposes. § 4-501(c)(5)(iv).
Individual prisoners’ files are confidential. Neb. Rev. Stat. §83-178 (Reissue 2014). Reports regarding conditions of confinement should be public record. See Neb. Rev. Stat. §83-4,131 (Reissue 2014). Pre-sentence investigation reports are confidential. Neb. Rev. Stat. §29-2261(6) (Reissue 2014).
N.J.A.C. 10A:71-2.2 provides:
(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., any other law, rule promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation, or Federal order, the following records shall be deemed confidential and shall not be subject to public access:
- Information, files, documents, reports, records or other written materials concerning an offender's medical, psychiatric or psychological history, diagnosis, treatment or evaluation;
- Information, files, documents, reports, records or other written materials concerning an offender's alcohol, drug or other substance abuse evaluation, history and/or treatment;
- Information, files, documents, reports, records or other written materials that, if disclosed, would infringe or jeopardize privacy rights of the offender or others or endanger the life or physical safety of any person;
- Investigative reports or information, including those from informants that, if disclosed, would impede ongoing investigations, create a risk of reprisal, or interfere with the security or orderly operation of an institution or a community program;
- Investigative reports or information compiled or intended for law enforcement purposes that, if disclosed, would impede ongoing investigations, interfere with law enforcement proceedings, constitute an unwarranted infringement of personal privacy, reveal the identity of a confidential source or confidential information furnished only by a confidential source, reveal investigative techniques and procedures or endanger the life or physical safety of law enforcement personnel, confidential informants, victims or witnesses;
- Standard operating procedures, manuals, and training materials, that may reveal the Board's surveillance, security, tactical, investigative, or operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise the Board's ability to effectively conduct investigations;
- Information, files, documents, reports, records or other written materials that, if disclosed, would impede Board functions by discouraging persons from providing information to the Board;
- An electronic recording or a transcript, if prepared, of any proceeding of the Board;
- Such other information, files, documents, reports, records or other written materials as the Board may deem confidential to insure the integrity of the parole and parole supervision processes; and
- A record that consists of information, statement or testimony in written, audio or video form provided by a victim or, if the victim is deceased, the nearest relative of the victim. This shall include, but not be limited to, any information obtained pursuant to N.J.A.C. 10A:71-3.48, Victim registration, the continuing notice and the extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss of earnings or ability to work suffered by the victim, the continuing effect of the crime upon the victim's family, personal information pertaining to the victim or victim's family such as the victim's home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information unless the requested information, statement or testimony in written, audio or video form was given at a public proceeding.
(b) No information, files, documents, reports, records or other written material deemed confidential pertaining to inmates or parolees shall be reviewed by any person except a Board member or employee or individual or law enforcement agency authorized by the Board or by the Chairperson.
(c) Inmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board or the Department. If disclosure is withheld, the reason for nondisclosure shall be noted in the Board's files, and such material or information shall be identified as confidential.
(d) If any non-confidential file, document, report, record or other written material shall contain information deemed confidential pursuant to (a) above, the information deemed confidential shall be deleted prior to the file, document, report, record or other written material being reviewed by or released to any person or agency.
The North Carolina Supreme Court has ruled that internal prison records, such as information relating to the behavior, classification, and status of prisoners, is confidential and may not be disclosed to prisoners or to the general public. Goble v. Bounds, 13 N.C. App. 579, 186 S.E.2d 638 (1971), aff’d, 281 N.C. 307, 188 S.E.2d 347 (1972). In the Goble case, the North Carolina appellate courts interpreted G.S. § 148-74 and 148-76 as permitting such information to be made available only to law enforcement agencies, courts, correctional agencies, or other officials requiring criminal identification, crime statistics and other information respecting crimes and criminals.
Similarly, records used in connection with prisoner grievance proceedings are closed. Prisoner grievances are handled by the Grievance Resolution Board pursuant to G.S. §§ 148-118.1 through 148-118.9. These statutes establish and govern the corrections administrative remedy Procedure. G.S. § 148-118.5 provides that “all reports, investigations, and like supporting documents prepared by the Department [of Corrections] for purposes of responding to the prisoner’s request for an administrative remedy shall be deemed to be confidential.” The same section also provides, however, that the prisoner shall be furnished with “all formal written responses” to his grievance request.
It is important to note that the confidentiality of prison records is limited to internal matters, such as prisoner behavior, discipline, consideration for work release, and the like. Matters such as the length of a prisoner’s sentence, the beginning and ending date of the sentence, and the like are matters of public record. See G.S. § 148-59.
At least 30 days before a transfer of a North Carolina inmate to another state correctional system is approved, the Secretary of Correction shall give notice of the proposed transfer by: (1) notifying the district attorney of the district where the prisoner was convicted, the judge who presided at the prisoner’s trial, the law enforcement agency that arrested the prisoner, and the victim of the prisoner’s crime; (2) posting notice at the courthouse in the county in which the prisoner was convicted; and (3) notifying any other person who has made a written request to receive notice of a transfer of the prisoner. All written comments regarding a transfer are public records under General Statutes Chapter 132 unless the Secretary determines that notice or disclosure would jeopardize the safety of persons or property. G.S. § 148-121.
The case history records of the department of corrections and rehabilitation are exempt records. N.D.C.C. § 12-47-36(1). Upon application to the district court, with service of the application on the department of corrections and rehabilitation and opportunity for the department to submit a written response, the court may order the inspection of a case history record, unless there is a showing that a proper and legitimate reason exists for denying inspection of the case history record. N.D.C.C. § 12-47-36(1). If the court issues an order allowing inspection, the court must allow the department of corrections and rehabilitation to remove all identifying information that may create a risk of harm to property or to any person. N.D.C.C. § 12-47-36(1).
“Case history record” does not include medical, psychological, and treatment records and legal files. N.D.C.C. § 12-47-36(1). The term includes inmate disciplinary proceedings, administrative and disciplinary segregation placements, institutional and criminal investigation reports, supervision histories, job placements, education programs, inmate financial accounts, and protective management cases.
Records with respect to a person’s identity, location, legal files except records under court seal, criminal convictions, or projected date of release, except for the records of a person who is under protective management, are open records. N.D.C.C. § 12-47-36(4).
The parole board may permit the inspection of a person’s pre-parole report, or parts of the report, prepared for the parole board. N.D.C.C. § 12-47-36(7).
The department of corrections and rehabilitation must maintain the confidentiality of witness protection program records and legal files under seal. N.D.C.C. § 12-47-36(9).
ORS 192.355(5) (formerly ORS 192.502(5)) exempts prison, parole and probation records to the extent that disclosure (1) would interfere with the rehabilitation of a person in custody of the Department of Corrections or would (2) “substantially prejudice or prevent the carrying out” of the Department’s functions, but the exception only applies if the “public interest in confidentiality clearly outweighs the public interest in disclosure.” See also ORS 192.398.
Jail records are presumably open, since they are essentially non-investigatory. SDCL §24-11-16. Files and case histories of penitentiary inmates are confidential. SDCL §24-15-1. Records and reports of Board of Pardons and Paroles, which meets in public, may be open. SDCL §§24-13-3 and 24-13-10. Probation reports are not specifically addressed by statute, but court services records generally confidential. SDCL §23A-27-47. Pardons remain public record for five years. SDCL §24-14-11. Some information under these categories might also be closed if it constitutes part of a “court record.” SDCL §15-5A-7.
Access to such records held by a private company housing state prisoners is the same access as if prisoner was housed by the state under T.C.A. § 41-24-117, which is a part of Private Prison Contracting Act. Friedmann v. Corrections Corp. of America, 310 S.W.3d 366 (Tenn. Ct. App. 2009).
The Act provides for required disclosure of certain information relating to an inmate who is confined in a facility operated by or under a contract with the Texas Department of Criminal Justice. Tex. Gov’t Code§ 552.029. The information required to be disclosed includes, among other things, the inmate’s name, the inmate’s assigned unit or the date on which the unit received the inmate (unless disclosure of the information would violate federal law relating to the confidentiality of substance abuse treatment), the offense for which the inmate was convicted, the inmate’s earliest or latest possible release dates, or the basic information regarding the death of an inmate in custody. See Tex. Gov’t Code§ 552.029.
The names of prisoners transferred on specific days from county jail to the Texas Department of Criminal Justice are public. Tex. Att’y Gen. ORD-508 (1988). Inmates’ correspondence lists and prison mail logs are exempt (Tex. Att’y Gen. Nos. ORD-428 (1985), ORD-185 (1978)), as are sketches of prison security measures related to a scheduled execution. Tex. Att’y Gen. ORD-413 (1984). Recommendations for or against parole have been declared confidential, but basic parole board information, including inmates’ names, ages, gender, race, addresses, date and court of sentencing, crimes of which convicted, length of sentence, and time served of individuals whose sentences have been commuted by the Governor, was declared public. Tex. Att’y Gen. ORD-190 (1978). Specific records regarding individuals on probation and subject to the direct supervision of a court that are held by a community supervision and corrections department fall within the Act’s judiciary exclusion because such records are held on behalf of the judiciary. Tex. Att’y Gen. Op. No. OR2003-9004 (2003). Because the department maintains the submitted information on behalf of the judiciary, the Act is inapplicable to such information, and that information is therefore not subject to public release under the act. Id. Certain reports that law enforcement agencies, jails and prisons are required by statute to file with the Attorney General when a prisoner dies while in custody are not public information. Tex. Att’y Gen. ORD-521 (1989).
As a result of a lawsuit filed against the Texas prison system, a federal court ordered certain prison reforms, including adoption of a reporting system for incidents when prison employees use force on inmates. A “stipulated modification” to the court’s reform order specifies that inmates should not have access to “sensitive” information. The Attorney General has advised that the federal court, not the Attorney General, should determine whether “use of force” reports are “sensitive” and exempt from public disclosure. Tex. Att’y Gen. ORD-560 (1990).
1. Expunged and sealed criminal records may not be divulged except under court order, with some exceptions. Utah Code § 77-40-108(5).
2. Information regarding sex offender registration is public except as otherwise stated in Utah Code section 77-41-108. See id. § 63G-2-302(o).
3. “[M]emoranda prepared by staff and used in the decision-making process by . . . a member of the Board of Pardons and Parole” is classified as protected. Id. § 63G-2-305(34).
4. Utah Code section 77-8-4 states that the record of a line-up procedure shall be available to the suspect. No mention is made of disclosure to the public.
5. Utah Code section 76-8-806 prohibits disclosure of any evidence concerning violations of the sabotage prevention statute until a formal complaint has been filed with the court.
6. Records of grand jury proceedings shall be kept “under seal.” Id. § 77-10a-13(8).
7. Upon request, the victim of any offense committed by a minor “shall have the right to inspect and duplicate juvenile court legal records that have not been expunged concerning: (i) the scheduling of any court hearings on the petition; (ii) any findings made by the court; and (iii) any sentence or decree imposed by the court.” Id. § 78A-6-114(1)(e).
8. Juvenile court records are open to inspection by parents or guardians, other parties in the case, the attorneys, agencies to which custody of the child has been transferred, the Division of Criminal Investigations and Technical Services, the Division of Child and Family Services, the Office of Licensing, and the Department of Health under certain circumstances. Id. § 78A-6-209(2). With the judge’s consent, the records may be inspected by the minor, by persons having a legitimate interest in the proceedings, and by persons conducting pertinent research studies. Id. § 78A-6-209(3). If a juvenile 14 years of age or older is charged with an offense that would be a felony if committed by an adult, the court shall make the petition, any adjudication or disposition orders, and the juvenile’s delinquency history summary available upon request. Id. § 78A-6-209(4). Probation officers’ records and reports of social and clinical studies are not open to inspection, except by consent of the judge under the rules of the Board of Juvenile Court Judges. Id. § 78A-6-209(5). “Any juvenile delinquency adjudication or disposition orders and the delinquency history summary of any person charged as an adult with a felony offense shall be made available to any person upon request.” Id. § 78A-6-209(6).
9. In abuse, neglect, and dependency cases, the court shall admit any person to a hearing, unless the court makes a finding upon the record that the person’s presence at the hearing would: (i) be detrimental to the best interest of a child who is a party to the proceeding; (ii) impair the fact-finding process; or (iii) be otherwise contrary to the interests of justice. Id. § 78A-6-114(1)(a)(i). In delinquency cases where the minor charged is 13 years of age or younger, the court shall admit all persons who have a direct interest in the case and may admit persons requested by the parent or legal guardian to be present. Id. § 78A-6-114(1)(b). In delinquency cases in which the minor charged is 14 years of age or older, the court shall admit any person unless the hearing is closed by the court for good cause if: (i) the minor has been charged with an offense which would be a felony if committed by an adult; or (ii) the minor is charged with an offense that would be a class A or B misdemeanor if committed by an adult, and the minor has been previously charged with an offense which would be a misdemeanor of felony if committed by an adult. Id. § 78A-6-114(1)(c).
Prior to sentencing a court shall order a presentencing investigation report or a parole summary relating to the defendant. Even a redacted report is not subject to disclosure unless the requesting party has “a proper interest in the report of parole summary” and the best interest or welfare of the defendant makes the action desirable or helpful. 28 V.S.A. § 204(d)(1).
The State of Vermont maintains a register of individuals who ask to be notified of the parole interview or review of an inmate by the parole board. 28 V.S.A. § 403. That list is not subject to disclosure. 28 V.S.A. § 403(4).
During incarceration, detainees can be tracked using “JailTracker.” See https://omsweb.public-safety-cloud.com/jtclientweb/(S(si53lihcj2yeonzuj5aokwki))/jailtracker/index/Vermont. This includes information such as the charges, booking date and bond amount.
While the Public Records Act does not specifically address the availability of probation records, 28 V.S.A. § 205(b) states that a crime victim shall have the right to request and receive from the Department of Corrections information regarding the offender’s general compliance with the specific conditions of probation. 28 V.S.A. § 205(b). Further, Vermont draws a distinction between criminal history reports and criminal conviction reports. A criminal history report provides all arrest and disposition information including pending, acquitted or dismissed charges. Criminal history information is only available to the person of record. A criminal conviction report provides only conviction information submitted by the court. Criminal conviction reports are available to anyone at https://secure.vermont.gov/DPS/criminalrecords/.
All records of persons imprisoned in penal institutions in Virginia are excluded and subject to discretionary release, provided the records relate to imprisonment. Va. Code. Ann. §2.2-3706.B.4. The same rule of exclusion and discretionary release applies to persons under investigation or supervision by a local pretrial services agency, supervision or monitoring by a local probation services agency, or investigation or supervision by state probation and parole services. Va. Code. Ann. §2.2-3706.B.6.; see also Va. Code Ann. § 2.2-3703.A.1 (excluding Parole Board from Act).
Prison, parole and probation reports are generally open. The CRPA restricts access to pre-conviction and nonconviction records generally but not post-conviction records. Records of entry are accessible on a chronological basis, and records of those currently in the criminal justice system are not exempt. RCW 10.97.
The FOIA has no specific exemption for prison, parole and probation reports. However, the West Virginia Parole Board has promulgated a regulation exempting some information in Parole Board possession. In Shrout v. Murphy, the Parole Board had denied a prisoner parole because the Board rated community and official sentiment with regard to petitioner’s possible release “extremely negative” and because the petitioner failed to complete “recommended programming.” 2015 WL 424901, No. 14–0491 (W. Va. Sup. Ct. Jan. 30, 2015).
The prisoner asked the Board all documents it had relied on in determining community and official sentiment. The Board refused to disclose the documents because such disclosure would invade the privacy of the persons who commented and “would interfere with the sentiment process.” In per curium opinion, the West Virginia Supreme Court upheld a trial court order blocking disclosure based on the Board’s regulations that provided:
Any inmate or interested party may make a request for records of the Parole Board pertaining to consideration of an offender for release on parole; rescission or revocation of parole or discharge of a parolee from supervision provided such records are subject to disclosure under the West Virginia Freedom of Information Act, W. Va. Code § 29B–1–1 et seq. Examples of documents not to be disclosed include but are not limited to the following: official, judicial, or community sentiment of any form.
92 W. Va. C.S.R. § 1–10.1 (Emphasis added.)
Thus, unless the particular materials requested fall with the regulation’s exception or any of the exemptions discussed above for personal information or law enforcement records, they would be available for public inspection.
The disclosure of presentence reports prepared by a court's probation office is discretionary with the court, under Rule 32 of the W. Va. Rules of Criminal Procedure. The Supreme Court has ruled that even the defendant has no absolute right to full disclosure of his presentence report. State v. Godfrey, 170 W. Va. 25, 289 S.E.2d 660 (1981). Probation revocation proceedings are conducted in open court, and public access is guaranteed as for any court proceeding.