Request By:
Major Bob Stallins
Official Custodian of Records
Kentucky State Police
Information Services Branch
1250 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Although the letter concerning the matter was addressed to you, Beach A. Craigmyle's letter dated March 13, 1986, apparently represents an appeal to the Attorney General pursuant to KRS 61.880 of your denial of the request to inspect certain public records in your custody. In any event, we are treating Beach A. Craigmyle's letter of March 13, 1986, as an appeal to the Attorney General of your denial of the request to inspect records under the Open Records Act (KRS 61.870 to KRS 61.884).
Beach A. Craigmyle's letter to you of February 28, 1986, made the following requests for copies of documents:
"This letter will request the release of a copy of the Kentucky State Police Report 5-83-108, regarding the closed investigation of former trooper Ray G. Raisor. In addition, we would like a copy of any other notes, reports or memoranda regarding any complaint made by Gary Lambert against Ray Raisor, specifically, the 'Memorandum to Commander, Internal Affairs' dated November 21, 1983."
In your letter to Beach A. Craigmyle, dated March 7, 1986, you wrote in part as follows:
"Concerning your recent request for a copy of the Kentucky State Police file regarding a complaint against Ray Raisor of an incident that occurred in the Fall of 1983, that request is denied."
"Your request is denied on the grounds that KRS 61.878 provides the right of inspection for certain records only upon order of a court of competent jurisdiction. Specifically, the inspection is denied pursuant to KRS 61.878(1)(g) and (h) in that the investigative files which you have requested are composed of preliminary recommendations and preliminary memoranda in which opinions are expressed and preliminary drafts, notes and correspondence which do not give notice of any final action by this public agency pursuant to KRS 61.880."
Beach A. Craigmyle's letter of March 13, 1986, maintains that it would be stretching the purpose and intent of the statute to say that the Kentucky State Police polygraph report dated October 13, 1983, file number 248-83, case number PS-83-108, to Sgt. William Starks from Sgt. Gary Godby regarding the examination of Ramona Lynn Raisor, would be considered preliminary drafts, notes or correspondence within the meaning of KRS 61.878. The letter further states that such a report is clearly discoverable. Furthermore, the letter writer questions why no final action has been taken by the public agency.
On March 24, 1986, the undersigned Assistant Attorney General telephoned your office and in your absence talked with Mr. Gary Bush. He advised that there is no report or file numbered 5-83-108 pertaining to Ray G. Raisor. As a result of a complaint made against former Trooper Raisor a professional standards internal affairs investigation was begun (file number PS-83-108). The investigation was never completed, however, as Trooper Raisor resigned from the State Police before it was concluded and the matter was dropped at that point. The internal affairs investigation did include the administering of a polygraph test to Ramona Lynn Raisor. The actual polygraph report of his conclusions were among the documents sent to the State Police Commissioner who would have made the final decision relative to former Trooper Raisor if one had been made.
OPINION OF THE ATTORNEY GENERAL
Among the public records excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) and subject to inspection only upon an order of a court of competent jurisdiction are those set forth in KRS 61.878(1)(a), (g) and (h):
"(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
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(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In connection with the application of KRS 61.878(1)(g) and (h), the Court said in part in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659 (1982) as follows:
"It is the opinion of this Court that subsections (g) and (h) quoted above 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."
At page 660 of its opinion in the City of Louisville case, supra, the Court summarized as follows:
"In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g) and (h). This does not extend to the complaints which initially spawned the investigations. The public upon request has a right to know what complaints have been made and the final action taken by the Chief thereupon."
In OAG 85-135, copy enclosed, we said that the public agency's denial of the request to inspect and copy those records in a police investigative file, consisting of interviews with a person's co-workers where those co-workers expressed their personal opinions on a variety of matters, was proper as such material is properly excluded from public inspection pursuant to KRS 61.878(1)(a), (g) and (h). This office in OAG 85-95, copy enclosed, upheld the denial of a request to inspect the statement of a police officer made in connection with a complaint filed against the police officer by the requesting party on the grounds that such a statement is a preliminary record. In addition, in OAG 84-249, copy enclosed, this office said that witness statements in a police internal investigative file are exempt from public inspection as preliminary documents.
As to polygraph tests and the reports of the examiners, we note in passing that the results of such tests have not been considered sufficiently reliable to be admitted as evidence in court. See, for example, the cases of Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984); Edwards v. Commonwealth, Ky., 573 S.W.2d 640 (1978); Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974). In OAG 83-260, copy enclosed, we concluded that the actual polygraph test of a person may be excluded from public inspection pursuant to KRS 61.878(1)(a). The public interest in the questions and answers on a polygraph test is not outweighed by the potential invasion of a person's privacy by the release of such material, particularly where the reliability of the testing process has been questioned for years.
The inspection of the report of the examiner who administered the polygraph test may also be denied under the exceptions to public inspection of public records set forth in KRS 61.878(1)(a), the privacy exemption. Furthermore, the examiner's report in part would be merely a reflection of his opinions and observations and is only one of numerous items forwarded to the State Police Commissioner who would have made the final decision concerning the professional standards internal affairs investigation, had a final decision been made. Finally, the administrative regulations pertaining to polygraph examinations and the persons who administer those examinations imply a sense of confidentiality relative to the whole process. See 502 KAR 20:010 through 502 KAR 20:030.
Before concluding, we direct your attention and that of the requesting party to OAG 85-119, copy enclosed, at page three, where we said in part that, generally, a public record is either open to public inspection by any person or it may be withheld from all persons under one or more of the exceptions set forth in KRS 61.878. This often means that the Open Records Act cannot be used in lieu of the discovery procedures provided by the Rules of Civil Procedure.
It is therefore the opinion of the Attorney General that the public agency's denial of the request to inspect and copy records pertaining to a professional standards internal affairs investigation of a former state trooper, consisting of preliminary drafts and notes, preliminary memoranda and reports containing the opinions, recommendations and observations of the investigating officers, a polygraph test and a report of the person administering the polygraph examination, was proper under the Open Records Act as such reports and documents may be excluded from public inspection pursuant to KRS 61.878(1)(a), (g) and (h). While the complaint which initially spawned the investigation and the report of the final action taken are subject to public inspection there was no final action taken in this particular investigation.
As required by statute a copy of this opinion is being sent to the requesting party, Beach A. Craigmyle, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).