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
William B. Byrd, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various documents in your custody. The documents in question are described as reports of polygraph tests administered in connection with the investigation of a particular fire which occurred in 1984 as well as copies of all other documents in the State Police investigative file which were not included with your letter to Mr. Byrd, dated December 13, 1985.
Mr. Byrd originally requested to inspect the investigative file relative to this particular fire in a letter to the State Police dated January 28, 1985. You advised him in a letter dated February 6, 1985, that the records could not be inspected at that time because the matter was still considered an open case.
Mr. Byrd in a letter to this office, dated June 10, 1985, asked the Attorney General to review your denial of his request. After consulting with you, the undersigned Assistant Attorney General told Mr. Byrd, in a letter dated June 17, 1985, that the investigative case file with which he was concerned was now considered a closed case. It was suggested that Mr. Byrd contact you relative to the inspection of the investigative file in question.
In a letter to you, dated December 1, 1985, Mr. Byrd requested to inspect the complete State Police investigative file of the fire in question. You informed Mr. Byrd in a letter dated December 13, 1985, that he was being supplied with the majority of the investigative file. You did not release to him the polygraph reports relating to the investigation and in support of your decision you cited KRS 61.878(1)(a), 502 KAR 20:020, and the policy of the State Police to keep the results of polygraph examinations confidential.
Mr. Byrd's letter of appeal to this office, dated June 3, 1986, asks this office to uphold his requests for copies of the reports of the polygraph tests pertaining to this investigation and for copies of any additional material in the file not furnished to him with your letter of December 13, 1985.
On June 10, 1986, the undersigned Assistant Attorney General telephoned your office and in your absence talked with Mr. Gary Bush. He advised that the only document in the file in question withheld from Mr. Byrd's inspection was one polygraph report from June 8, 1984, consisting of one and one-third pages.
OPINION OF THE ATTORNEY GENERAL
In view of your letter of December 13, 1985, and Mr. Bush's statement as to the one document actually withheld from public inspection, Mr. Byrd's appeal to this office raises only one question for consideration. That question concerns the validity of the action of your agency in withholding the actual polygraph test results and the operator's report of his conclusions from Mr. Byrd's inspection.
In OAG 86-22, copy enclosed, at page five, we noted in passing that the results of polygraph tests have not been considered sufficiently reliable to be admitted as evidence in court and cited, among others, the case of Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). We concluded in OAG 86-22 that the actual polygraph test of a person may be excluded from public inspection pursuant to KRS 61.878(1)(a). That provision authorizes a public agency to exclude from public inspection, in the absence of a court order permitting inspection, those public records containing information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of personal privacy. 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.
We also noted in OAG 86-22 that the report of the examiner who administered the polygraph test may be withheld from inspection under the exceptions to public inspection of public records set forth in KRS 61.878(1)(a), the privacy exemption. In addition, the examiner's report in part would be merely a reflection of his opinions and observations and could be excluded from public inspection pursuant to KRS 61.878(1)(h) which authorizes the public agency to withhold preliminary recommendations and preliminary memoranda in which opinions are expressed. 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.
It is, therefore, the opinion of the Attorney General that the public agency's denial of the request to inspect those records consisting of the actual polygraph test results and the operator's report of his conclusions relative to those tests was proper under the Open Records Law as such documents and reports may be excluded from public inspection pursuant to KRS 61.878(1)(a) and (h).
As required by statute a copy of this opinion is being sent to the requesting party, William B. Byrd, Esq., who has the right to challenge it in circuit court pursuant to KRS 61.880(5).