Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Louisville Division of Police violated the Open Records Act in denying Sean C. Seales's March 13, 2000, request to inspect "all documentation and records related to [his] application for the position of Police Recruit with the Louisville Division of Police." For the reasons that follow we affirm the Division's denial of Mr. Seales's request.
On March 15, 2000, Director of Police Human Resources C. Greg Lilly denied Mr. Seales's request. Relying on KRS 15.400(3), he explained:
It is the policy of the Louisville Division of Police not to release any background information on Police Recruit applicants to anyone including the individual on whom the investigation was performed. We are able to do this based upon the Crime Bill of 1998.
Mr. Lilly stated that KRS 15.400(3) authorizes nondisclosure of all information contained in Mr. Seales's police recruit applicant file. Shortly after he received the Division's denial of his request, Mr. Seales initiated this appeal.
In his letter of appeal, Mr. Seales challenged the Division's interpretation of KRS 15.400(3). He argued:
The legislature's intent in creating KRS 15.400(3) was not to deny job applicants or current civilian employees of a local government the right to inspect records amassed by a local government agency which pertain to those applicants or civilian employees. The statute only refers to persons who are certified police officers employed by the police department in question. It also does not mention current civilian employees, already employed by a local government, being denied the right to inspect records maintained by an agency of their employer. I am a current civilian employee of another City of Louisville agency.
The title of Section 15.400 is "Effect of KRS 15.342 to 15.3442 on officers employed before or after December 1, 1998 - exception to Open Records Act. " The title of this section indicates the group to whom the claimed exception to the Open Records Act applies: police officers, not job applicants or any other class of people. The language of this section states in no uncertain terms that it exclusively applies to records regarding persons actually employed as police officers.
Mr. Seales maintained that public agencies "cannot withhold information pertaining to an individual which is collected during an employment-related background investigation, should that individual wish to review it." Noting that thousands of people unsuccessfully apply to police departments in Kentucky each year, he concluded that if the legislature had "intended to make such a radical change to the Open Records Act which applies to such a huge category of 'all job applicants,' it would have included the language in KRS 61.878 with the other exceptions rather than in a vague statute solely dealing with police officer certification. "
In a supplemental response directed to this office, City of Louisville Assistant Director of Law Stephanie Harris elaborated on the Division's position. She indicated that the disputed records consist of a psychological examination, polygraph examination, and background investigation compiled during the police recruit selection process. Acknowledging that in at least two prior open records decisions, 95-ORD-84 and 96-ORD-39, the Attorney General held that a police recruit applicant was entitled to review his application file, including background investigations, Ms. Harris noted that in 1998 the General Assembly enacted KRS 15.400(3), prohibiting disclosure of background investigations. She explained:
By enacting KRS 15.400(3) the General Assembly intended to protect the process by which police recruits were selected. In doing so, KRS 15.400(3) prohibits disclosure of records pertaining to the selection process. The General Assembly did not limit disclosure to only disinterested third parties; disclosure to applicants is also prohibited.
The government has a substantial interest in conducting background investigations on potential recruits. The confidentiality of these background checks allows the government to obtain thorough and candid responses from third parties. Third parties providing background information about potential recruits have a privacy interest in the information they provide. This information should be confidential and should not be shared with the public or the applicant. Third parties should be able to communicate with law enforcement personnel in conducting background checks and know that their response will be kept confidential. If third persons knew that their statements were not confidential, then they would be less likely to give open and honest responses.
In closing, Ms. Harris stated that Mr. Seales "is entitled to inspect his psychological examination and polygraph test," but reaffirmed the view that his background investigation is confidential per KRS 15.400(3).
While we concur with the Louisville Division of Police in its view that KRS 15.400(3) prohibits disclosure of specifically described information obtained in the application/ certification process to peace officers, unsuccessful applicants who wished to become peace officers, and third parties, we believe that the prohibition is, by its own terms, mandatory, and extends not only to background investigations, but also to psychological examinations and polygraph examinations administered pursuant to KRS 15.400(2) and KRS 15.382.
Resolution of this appeal turns on the proper interpretation of KRS 15.400(3) which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 1 KRS 15.400 provides:
(1) The effective date of KRS 15.380 to 15.402 shall be December 1, 1998. All peace officers employed as of December 1, 1998, shall be deemed to have met all the requirements of KRS 15.380 to 15.402 and shall be granted certified status as long as they remain in continuous employment of the agency by which they were employed as of December 1, 1998, or shall have successfully completed an approved basic training course approved and recognized by the Kentucky Law Enforcement Council pursuant to KRS 15.440(4) when seeking employment with another law enforcement agency.
(2) Any peace officers employed after December 1, 1998, shall comply with all minimum standards specified in KRS 15.380 to 15.402. Persons newly employed or appointed after December 1, 1998, shall have one (1) year within which to gain certified status or they shall lose their law enforcement powers.
(3) The Open Records Act notwithstanding, the person's home address, telephone number, date of birth, social security number, background investigation, medical examination, psychological examination, and polygraph examination conducted pursuant to this statute shall not be subject to disclosure.
As Ms. Harris observes, this provision was enacted in 1998 in an effort to improve the quality of law enforcement personnel and promote candor in the investigation, examination, and selection process. Since its enactment, neither this office nor the courts have been called upon to interpret its scope and application in the context of agency denial of an open records request. Accordingly, we are unable to locate any legal authority that disposes of this issue.
The language of KRS 15.400(3), when read in para materia with KRS 15.400(1) and (2), and other provisions found at KRS 15.380 to 15.402, is subject to conflicting interpretations. One of these interpretations comports with Mr. Seales's view that the term "person" appearing in KRS 15.400(3) modifies the term "persons" appearing in KRS 15.400(2), and refers to peace officers newly employed or appointed after December 1, 1998, who have undergone the certification process found at KRS 15.382. However, to promote the objects of the statute and implement the legislature's intent, we find that the protection afforded by KRS 15.400(3) must be construed to apply to background investigations, medical examinations, psychological examinations, and polygraph examinations, "conducted pursuant to this statute," on all applicants, and not just those applicants who are untimely employed.
In 1998, Chapter 15 of the Kentucky Revised Statutes was amended, and a new section introduced establishing standards for officer certification and training. After the effective date of December 1, 1998, any applicant seeking employment, and ultimately peace officer certification, who does not qualify for grandfather status pursuant to KRS 15.400(1), must undergo the investigation and testing process codified at KRS 15.382(1) through (17), including a background investigation, medical examination, psychological examination, and polygraph examination. Peace officers employed prior to December 1, 1998, are deemed to have met the requirements for certification, subject to certain conditions set forth at KRS 15.400(1), and thus enjoy "grandfather status." All others must submit to the rigorous investigative and testing requirements found at KRS 15.382, and elsewhere, as a precondition to employment and certification.
The confidentiality provision located at KRS 15.400(3) extends to any "background investigation, medical investigation, psychological examination, and polygraph examination conducted pursuant to this statute," meaning investigations and examinations conducted on both successful and unsuccessful applicants. (Emphasis added.) 2 Simply stated, the records of any applicant who submits to mandatory investigation and testing pursuant to KRS 15.382 and 15.400(2), with the goal of employment and certification as a peace officer, are excluded from inspection regardless of the applicant's success in achieving this goal. Any other interpretation would thwart the intent of the legislature by requiring public agencies to disclose background investigations, medical examinations, psychological examinations, and polygraph examinations of unsuccessful applicants to all requesters, including the unsuccessful applicants themselves and the public generally, thereby compromising the applicants' privacy interests and undermining the purposes for which the statutes were enacted, namely to promote candor in the investigation and testing process, and thus to identify the best qualified applicants. The relevant rule of statutory construction is found in Central State Hospital v. Gray, Ky., 880 S.W.2d 557, 558 (1994), wherein the Kentucky Supreme Court held that "In construing statutory provisions, it is presumed that the legislature did not intend an absurd result." In our view, it cannot be reasonably argued that only investigations and examinations "conducted pursuant to this statute" on peace officers who are employed must be withheld, and all others released for public scrutiny.
The specific confidentiality provision found at KRS 15.400(3) supercedes the general provisions of the Open Records Act. 3 This includes KRS 61.878(3), the provision of the Act which otherwise mandates disclosure to an applicant for public employment of all "documentation that relates to him." See, e.g., 97-ORD-87, p.4 (holding that "when applicable, KRS 61.878(3) overrides all of the exemptions to public inspection set forth in KRS 61.878(1) with the exception of KRS 61.878(1)(k), pertaining to records or information the disclosure of which is prohibited by federal law or regulation, and KRS 61.878(1)(l), pertaining to records or information the disclosure of which is prohibited, restricted, or otherwise made confidential by enactment of the General Assembly," emphasis added). 4 We therefore conclude that the City of Louisville properly denied Mr. Seales request on the basis of KRS 15.400(3), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Nevertheless, the dispute that spawned this appeal demonstrates that KRS 15.400(3) could be clearer. As noted, the language of the provision lends itself to conflicting interpretations. For this reason, we have transmitted a copy of this decision to the Kentucky Law Enforcement Council, the agency charged with authority to certify police officers as set out in Chapter 15, and to recommend reasonable rules and regulations to accomplish the purposes of that Chapter. We urge the Council to consider whether KRS 15.400(3) should be amended to clarify that it applies to the records of both peace officer employed after December 1, 1998, and unsuccessful applicants for employment.
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.
Footnotes
Footnotes
1 KRS 61.878(1)(l) requires public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 KRS 15.400(3) also mandates nondisclosure of the successful or unsuccessful applicant's home address, telephone number, date of birth, and social security number. While the rationale underlying the confidentiality provision is less compelling when the applicant himself, as opposed to a third party, requests access to this information, the statute does not recognize a distinction among persons seeking access.
3 It is unclear why the City of Louisville elected to release to Mr. Seales his psychological examination and polygraph examination. KRS 15.400(3), prohibiting disclosure of these records to all requesters , is, by its express terms, a mandatory confidentiality provision that extends to these records.
4 In addition, KRS 61.878(3) prohibits disclosure of examinations, and documents relating to ongoing criminal or administrative investigations by an agency, to a public agency employee or applicant for employment.