Request By:
Major Bobby Stallins
Official Custodian of Records
Kentucky State Police
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Tom Loftus has appealed to the Attorney General pursuant to KRS 61.880 the denial of inspection of certain items in an investigative file in your custody as official custodian of the state police records. You granted Mr. Loftus' request to review the state police investigative file concerning the death of Rebecca A. Moore by letter dated May 3, 1983, but deleted two items:
(1) A reference made by one of the principals in the case concerning the actions of three persons not connected with the case; and
(2) The actual report of a polygraph examination.
Your denial was based on KRS 61.878(1)(a) which provides for nondisclosure of personal information in public records when disclosure would constitute a clearly unwarranted invasion of personal privacy. The deletion of the first item was also based on its lack of "relationship to any facet of this investigation." The deletion of the second item was based on state police policy of keeping actual polygraph tests confidential. The conclusions of the examiner were, however, released for review.
KRS 61.878(1)(a) involves balancing the public's interest in disclosure of personal information contained in public documents against the potential invasion of individual privacy.
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981).
The right of privacy has been defined in 62 Am.Jur.2d, Privacy, § 1, as the "right to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned." See
Perry v. Moskins Stores, Ky., 249 S.W.2d 812 (1952) 813, adopting the doctrine of privacy just cited.
Regarding the denial of item (1) concernig the reference to three persons not involved in the investigation, Mr. Loftus feels that the disclosure of their names violates no privacy interests. He also alleges, though it is unclear from the facts, that this reference is contained in a document which was also wrongly withheld in its entirety.
Regarding the denial of item (2) concerning the actual report of a polygraph test taken by an individual named Lambert, Mr. Loftus asserts that the promise of confidentiality made by the Kentucky State Police to the examination taker is not sufficient to avoid public disclosure and the actual report is not an unwarranted invasion of Lambert's privacy.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of this office that both of the deleted items from which this appeal was taken were properly denied public inspection under the Open Records Law.
The denial of public inspection of the item (1) reference to three persons unconnected with the police investigation was proper pursuant to KRS 61.878(1)(a) as protection against an unwarranted invasion of personal privacy. The identity and actions of these persons proved unrelated to any facet of the investigation and thus unnecessary to public inspection. This privacy right clearly outweighs the public's need to know in this instance, especially where their identities and actions were not involved in the investigation.
These persons are also protected against an unwarranted invasion of privacy which would have their identities and actions publicly associated with a criminal investigation. KRS 17.150 provides that:
(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest.
The disclosure of the identities and actions of these three persons unrelated to the police investigation does not appear to promote a wholesome public interest.
It is unclear from the facts as stated whether this item (1) reference is contained in a document, the entire contents of which were denied public inspection.
If such a document exists, it is the opinion of this office that KRS 61.878(3) requires disclosure of the non-exempt portions of this document. However, the portions exempted above indicating the identities and actions of the three persons unrelated to the investigation should be deleted from this document.
It is also the opinion of this office that the denial of public inspection of the polygraph test of a person named Lambert which was a part of the investigative file was also proper.
Implied confidentiality in polygraph tests is found in 502 KAR 20:020 which states the rules regulating the professional standards for polygraph examiners. Section 3(1) and (2) requires the examiner to maintain all the records concerning tests he has given in the past two year period. After leaving the employment through which these tests were taken, the examiner can request to review these records dating back for two years. However, the employing examiner, agency, or company must approve the request and without that approval the examiner requesting the review cannot remove or take notes on any of the test material. The examiner requesting the review has, in effect, become a part of the general public by leaving the employment of the agency, company, or another examiner. Denial of the examiner's request is analogous to denial of review by the general public. This implies that confidentiality is to be maintained concerning polygraph tests.
The confidentiality is also warranted pursuant to KRS 17.150(2)(b) and KRS 61.878(1)(a). The public interest in the questions and answers on this test is not outweighed by the potential invasion of Lambert's privacy.
It is, therefore, the opinion of the Attorney General that the deletion of the reference to the three uninvolved persons and the actual polygraph test from the investigative file on the death of Rebecca A. Moore by the Kentucky State Police was a proper denial of public inspection under the Open Records Law.