Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the Luther Luckett Correctional Complex's (LLCC) partial denial of the July 27, 1999 open records request of John Pfoff, an inmate at the institution, for a copy of the results of the polygraph test which he took on July 1, 1999.
On August 12, 1999, via a response from Cindy Hall, Supervisor, Offender Information, through Lt. Meredith, Internal Affairs, (LLCC), Mr. Pfoff was provided with a copy of the polygraph test with the preliminary comments and opinions of the polygraph examiner redacted from the document. The LLCC cited KRS 61.878(1)(j) and KRS 61.878(4), as authority for withholding those portions of the test results.
On August 18, 1999, Mr. Pfoff appealed this decision to Ms. Hall. He argued that he was entitled to a copy of the complete results, since he had paid for the test. By letter dated August 24, 1999, Ms. Hall explained:
I received your letter regarding the initial response to your Open Records Request, regarding the polygraph test. Pursuant to KRS 61.878(4) the examiner's opinion was redacted from disclosure. I reviewed the Category IV-2 write-up dated 04/14/98 and the warden's appeal decision. It is noted that the polygraph test was not specifically incorporated in the Warden's final decision, therefore, the opinion expressed by the examiner remains preliminary and exempt from disclosure pursuant to KRS 61.878(1)(j).
In his letter of appeal to this office, Mr. Pfoff asked the Attorney General to determine (1) whether he was entitled to a full copy of the polygraph test result, including the conclusions of the examiner, when he had paid for the test, and (2) whether KRS 61.878(1)(j) applied to the conclusions of the polygraph examiner.
After receipt of Mr. Pfoff's letter, Tamela Biggs, Staff Attorney, Department of Corrections, provided this office with a response to the issues raised in the appeal. In her response, Ms. Biggs explained that Mr. Pfoff had received a write-up for testing positive for tranquilizers and, as part of the disciplinary process, he had agreed to take a polygraph test. Addressing this issue, Ms. Biggs stated:
Mr. Pfoff requested a copy of the polygraph results. An examiner's report in part would be merely a reflection of his opinions and observations. OAG 86-22. Mr. Pfoff was provided with a copy of the examiner's report, minus the examiner's opinion. KRS 61.878(1)(j) exempts from disclosure "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " While the Warden's Appeal of the disciplinary action mentions the polygraph examination, the Warden did not rely on, or incorporate, the examination into his final decision. He states that he relied "on the pharmacist information" and Mr. Pfoff's extensive drug use; therefore, the polygraph examination and the opinions and observations of the examiner contained therein remained a preliminary document. The results of the polygraph examination were provided to the Department and were placed in the institutional file. Upon receipt of a request for access to a document contained in a public record, the statutory provisions are reviewed to ascertain in any of the information contained therein should be redacted prior to release. The examiner's opinion as to the truth and veracity of the test subject's answers fall within the purview of KRS 61.878(1)(j).
By letter dated November 4, 1999, Mr. Pfoff provided this office with a response to Ms. Biggs' letter. In his response, he states that, not only did he agree to take the polygraph exam, he agreed to pay for it. Mr. Pfoff argues that "common sense alone would indicate that the test results belong to him, not to the Corrections Cabinet or officials at the Luther Luckett Correctional Complex."
For the reasons that follow, we conclude that the LLCC's partial denial and redaction of the polygraph results was consistent with the Open Records Act and prior opinions of this office. While the polygraph exam was part of the disciplinary action, the examiner's test and opinion as to the truth and veracity of Mr. Pfoff's answers were not relied on, incorporated into, or made a part of the Warden's decision in the disciplinary action. Under this circumstance, the record retains its preliminary character.
KRS 61.878(1)(j) provides:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In
City of Louisville v. Courier-Journal and Louisville Times, Ky.App., 637 S.W.2d 658 (1982), the Court of Appeals held that sections of the Open Records Act [now recodified as KRS 61.878(1)(i) and (j)], protect police internal affairs from public disclosure. In reaching this result, the Court of Appeals stated:
It is the opinion of this Court that subsections [i] and [j] 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.
. . .
In summary, we hold that the investigative files of Internal Affairs are exempt from public inspection as preliminary under KRS 61.878(1)[i] and [j]. This does not extend to 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 addition, this office has consistently held that preliminary interoffice and intraoffice memoranda or notes setting forth opinions, observations and recommendations, as well as investigative reports that do not represent the agency's final action may be withheld from public inspection pursuant to KRS 61.878(1)(i) and (j). 98-ORD-27.
As part of the disciplinary proceeding, Mr. Pfoff was given a polygraph test. In a subsequent letter to this office, Mr. Pfoff stated that the polygraph examiner had advised him that he had passed the exam. However, as noted above, in considering Mr. Pfoff's appeal, the Warden did not rely on, adopt, or incorporate, the results of the polygraph examination into his final decision. A copy of the completed Disciplinary Report Form was supplied to this office by LLCC. The Report indicates that the Warden's decision finding against Mr. Pfoff was based "on the pharmacist information," which had indicated that Mr. Pfoff was not on any medication which could cause him to test positive for tranquilizers, and his record of extensive drug use when he was in a community setting.
Obviously the Warden could have relied upon the results of the polygraph test in reaching his decision, but he did not do so. In OAG 86-22, we addressed the reliability of polygraph tests, stating:
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).
Under the circumstances of this appeal, the polygraph examination and the opinions and observations of the examiner contained therein remain preliminary in nature. Accordingly, we conclude the LLCC properly relied upon KRS 61.878(1)(j) and KRS 61.878(4) in partially denying Mr. Pfoff access to the complete polygraph test by redacting the results.
The fact that Mr. Pfoff paid for the polygraph test may entitle him to a copy of the document from the polygraph examiner. However, this decision only addresses the copy of the test that is maintained by the agency in the institutional file, which we held the LLCC could properly withhold from inspection under KRS 61.878(1)(j).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.