Request By:
Gale Y. Park
Hardin County Water District No. 1
409 West Lincoln Trail Blvd.
P.O. Box 489
Radcliff, Kentucky 40160
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
William C. Smallwood has apparently appealed to the Attorney General pursuant to KRS 61.880 the water district's handling of his requests to inspect various documents in its custody.
In a document dated August 2, 1990, Mr. Smallwood requested access to various records in the custody of the water district. Mr. George Mitchell, the chairman of the water district's board of commissioners, responded in a letter dated August 3, 1990, and advised as follows:
The above referenced inspection request has been sent to Hardin County Water District No. 1's legal counsel for review. Part of the information requested by you may not be considered public records and may not be open to inspection. Your request will be answered only after the determination is made.
In a document dated November 15, 1990, Mr. Smallwood again requested that he be given access to various records in the custody of the water district. You advised Mr. Smallwood as follows in a letter dated November 30, 1990.
The above referenced inspection requests have not been denied.
We will make available for your inspection all public records requested. We will not make available the results of the polygraph tests of any employee except yourself, regarding the theft of money in 1988 due to the information being personally identifiable.
Meanwhile, on November 23, 1990, Mr. Smallwood filed a Consumer Complaint Form with the Division of Consumer Protection of the Attorney General's Office relative to his inability to gain access to the records requested from the water district. That complaint form was transferred to the Civil and Environmental Law Division of the Attorney General's Office and subsequently assigned to the undersigned for reply on December 5, 1990.
The undersigned Assistant Attorney General contacted you by telephone on December 6, 1990. You confirmed that although as of that date Mr. Smallwood had not contacted you to make an appointment to review the material in question, you would make available for inspection all the documents requested except for the results of the polygraph tests of all employees except Mr. Smallwood.
Thus the primary issue on appeal is the validity of the determination of the water district to withhold from inspection the results of the polygraph tests.
OPINION OF THE ATTORNEY GENERAL
Before addressing the primary issue we need to direct your attention to KRS 61.880(1) which sets forth the duties and obligations of a public agency when it receives a request to inspect and copy documents. The statute requires that a public agency shall determine within three business days after the receipt of the request whether to comply with it and shall notify the requesting party in writing of its decision. Any agency denying in whole or in part a request to inspect records shall include a brief explanation of how the exception relied upon applies to the record withheld. See OAG 90-34, a copy of which is enclosed.
In addition, see KRS 61.872(4) which states as follows:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.
Thus, the water district has not complied with various procedural requirements of the Open Records Act, specifically sections of KRS 61.880(1) and KRS 61.872(4). The water district should modify and adjust its procedures to insure that in the future it properly and promptly responds to all requests for documents submitted to it under the Open Records Act.
In connection with access to the results of polygraph tests we are enclosing copies of OAG 86-39 and OAG 86-22 where that issue was considered. In OAG 86-39, at pages 2-3, we said in part as follows:
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.
It is, therefore, the opinion of the Attorney General that although the water district has not complied with various procedural requirements set forth in KRS 61.880(1) and KRS 61.872(4) relative to the handling and disposition of requests to inspect documents, the water district's refusal to permit the inspection of polygraph test results is justified under the Open Records Act as such documents may be excluded from public inspection pursuant to KRS 61.878(1)(a).
As required by statute, a copy of this opinion is being mailed to the appealing party, William C. Smallwood, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.