Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of State Police properly relied on KRS 61.878(1)(a) and (h) in partially denying Tina Renee Gilbert's August 25, 2004, request for a copy of case #08-02-1965 "including all attachments, specifically a videotape of the polygraph exam." Although its original response was deficient, we affirm the Department's ultimate denial of Ms. Gilbert's request.
By letter dated September 1, 2004, the Department's Official Custodian of Records, Debborah M. Arnold, partially denied Ms. Gilbert's request. Although Ms. Arnold provided Ms. Gilbert with portions of the investigative file, she denied her request for the videotaped polygraph examination on the basis of KRS 61.878(1)(h) without explanation. On October 6, 2004, Ms. Gilbert initiated this appeal questioning how KRS 61.878(1)(h) applies to a closed investigation.
In supplemental correspondence directed to this office following commencement of Ms. Gilbert's appeal, Justice and Public Safety Cabinet/Department of State Police Staff Attorney, Natalie Lewellen, elaborated on the Department's position. She advised:
KRS 61.878(1) provides for the exclusion of certain public records from public inspection in the absence of a court order. KRS 61.878(1)(h) excludes "records of law enforcement agencies . . . that are compiled in the process of detecting and investigating statutory or regulatory violations[.]" This exception remains applicable to records and information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigation or criminal litigation even after action is completed or a decision is made to take no action. KRS 61.878(1)(h). Additionally, KRS 61.878(1)(a) excludes from inspection, "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The Office of the Attorney General has held that polygraph tests, as well as polygraph examiner's reports, may be withheld from public inspection, pursuant to KRS 61.878(1)(a), as "[t]he 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." See OAG 83-260; OAG 86-22; OAG 86-39; OAG 90-144. Also, while it was determined in 92-ORD-124 [sic] that KRS 61.878(1)(a) was inapplicable as the basis for nondisclosure of a videotaped polygraph examination where the person requesting the videotaped examination was also the subject of the polygraph, such is not the case here. Ms. Gilbert was not the subject of the polygraph examination administered in case #08-02-1965. As such, the videotaped polygraph examination in the instant case should remain excluded from public inspection.
Moreover, the matter under investigation involved allegations of sexual abuse against a juvenile. Therefore, even if the videotaped polygraph examination were otherwise subject to disclosure, all references to the juvenile and other identifying information would nevertheless be subject to redaction. As such, the redaction of said references and information contained in the videotape would constitute an undue burden upon the Kentucky State Police.
Furthermore, disclosure of the controlled and relevant questions contained in polygraph examinations may serve to undermine the integrity of future polygraph examinations.
On these bases, Ms. Lewellen concluded, the Department's denial "should remain undisturbed on appeal."
Unable to resolve the question presented on the limited record before us, this office propounded a series of questions to the Department pursuant to KRS 61.880(2)(c). The Department's responses to these questions establish that Ms. Gilbert is the mother of the juvenile who was the subject of a sexual abuse investigation that was concluded in March 2003, when the Department determined that no action would be taken. The polygraph examinee was the individual against whom allegations of sexual abuse of the juvenile were made. Although the juvenile was identified by name several times throughout the examination, no reference was made to Ms. Gilbert. The Department "apologize[d] for any statements implying or suggesting that the case had not reached conclusion," focusing on KRS 61.878(1)(a) as the exclusive statutory basis for denying Ms. Gilbert's request for the videotape. 1 The Department further established that the availability of polygraph defeating measures necessitate protection of polygraph testing techniques. Release of the videotape "would open the door for . . . suspects to gain access and knowledge of exactly how [the Department] conducts polygraph examinations," 2 thereby undermining the validity of the tests and impacting not only future KSP polygraph examinations but those of other police departments as well. Having considered the arguments advanced by the Department on appeal, we affirm the denial of Ms. Gilbert's request on the basis of KRS 61.878(1)(a).
This office has long recognized that access to a polygraph examination and examiner's report may be denied pursuant to KRS 61.878(1)(a). See, e.g., OAG 83-260; OAG 86-22; OAG 86-39; OAG 90-144; 99-ORD-204; 00-ORD-3; compare, 93-ORD-124. Fundamental to the early opinions on this subject was the recognition that:
Implied confidentiality in polygraph tests is found in 502 KAR 20:020 3 which states the rules regulating the professional standards for polygraph examiners. Section 3(1) and (2) [now 4(1) and (2)] requires the examiner to maintain all the records concerning tests he has given in the past two year period. After leaving the employment through which these tests were taken, the examiner can request to review these records dating back for two years. However, the employing examiner, agency, or company must approve the request and without that approval the examiner requesting the review cannot remove or take notes on any of the test material. The examiner requesting the review has, in effect, become a part of the general public by leaving the employment of the agency, company, or another examiner. Denial of the examiner's request is analogous to denial of review by the general public. This implies that confidentiality is to be maintained concerning polygraph tests.
OAG 83-260, p. 4 (affirming denial of request for polygraph report on the basis, inter alia, of KRS 61.878(1)(a)), cited in OAG 86-22. In the latter opinion, we amplified on the view that a polygraph examination is excluded from inspection by operation of KRS 61.878(1)(a), observing:
[T]he 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). 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.
OAG 86-22, p. 4. Additionally, we noted 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." Id.
Applying these principles to the facts before us, we find that the implied confidentiality of polygraph examinations and materials related thereto, found in 502 KAR 20:020 Section 4(2), coupled with the unreliability of the examinations and the previously recognized privacy interest in the examinations, support the Department's denial of Ms. Gilbert's request, notwithstanding the fact that she is apparently the mother of the juvenile who was the subject of the sexual abuse investigation of which this polygraph examination was a part. No doubt, she has a more compelling interest in accessing the videotape of the examination than has the public generally, but as an open records requester she stands in the same shoes as a member of the general public. Unlike the requester in 93-ORD-124, who was the polygraph examinee and therefore entitled to a copy of the videotape, KRS 61.878(1)(a) notwithstanding, Ms. Gilbert was not the polygraph examinee here, and the privacy interests of that examinee, against whom allegations of sexual abuse were leveled, must be deemed superior to her interest, or the interest of the public, in disclosure. We find no error in the Department's denial of Ms. Gilbert's request on this basis.
Our review of the alternative argument advanced by the Department in support of the denial of Ms. Gilbert's request suggests an additional basis upon which access to the videotape could have properly been denied. As we have noted in past decisions:
Although there is no catch-all exemption in the Open Records Act for records the disclosure of which would impede important government operations, the Attorney General has recognized:
04-ORD-058, pp. 11-12, citing 95-OD-121, p. 8 (affirming jail's denial of an inmate's request for policy and procedures manual containing details of security systems currently in place on the basis of KRS 61.872(6)); see also 97-ORD-129; 99-ORD-51; 99-ORD-83; 99-ORD-131; 02-ORD-211.
01-ORD-20, p. 5, citing 95-ORD-121, p. 8.
The Department makes a convincing showing that disclosure of the videotape to Ms. Gilbert would compromise a significant governmental interest, to wit, insuring the continued validity of the polygraph examination process, that is compounded by the ready availability of "polygraph defeating" measures. The Department demonstrates that it has a substantial monetary investment in countering these polygraph defeating measures, and that disclosure of the videotape might necessitate the revision of these measures. Although we have no reason to believe that Ms. Gilbert intends to use the videotape in a subversive manner, we remind her that if the videotape were released to her, under the Open Records Act, it would have to be released to any other requester. Applying the analysis set forth above, we find that the Department of State Police might also have denied her request on the basis of KRS 61.872(6).
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 The Department's admission that the investigation is now closed undermines its earlier argument that KRS 61.878(1)(h) authorizes nondisclosure of the videotape. The Department did not elaborate on its argument that redaction of arguably protected information would constitute an undue burden within the meaning of KRS 61.872(6). It is therefore assumed that the Department also abandoned this argument on closer scrutiny.
2 November 4, 2004, statement submitted by Richard W. Kurtz, Polygraph Section, Department of State Police, as an attachment to Department's responses to Attorney General's KRS 61.880(2)(c) questions.
3 This regulation continues in effect to the present.