Request By:
Clarence T. Hurst
Mary Ann Scott
Emily M. Perkins
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the response of the Kentucky State Police (KSP) to Clarence T. Hurst's September 22, 2007, request for a copy of the video of the polygraph he was administered and a copy of the polygraph policy violated the Open Records Act. For the reasons that follow, we find that KSP's response did not violate the Act.
In a written response, dated October 2, 2007, Mary Ann Scott, Official Custodian of Records, KSP, responded to Mr. Hurst's request, advising:
Please be advised that your request for the video is denied in compliance with KRS 61.872, for the reasons set forth below; however, a redacted version of the polygraph policy will be released to you. The video and certain information contained in the policy will not be released to you pursuant to KRS 61.872, as disclosure would cause an undue burden on the agency. If the items you requested were released in their entirety it would reveal examination tactics and questioning methods. The agency would then be unduly burdened by the need to revise and redevelop examination methods.
Shortly thereafter, by letter dated October 15, 2007, Mr. Hurst initiated the instant appeal asking this office to determine whether the actions of KSP violated the Open Records Act.
After receipt of notification of the appeal, Emily M. Perkins, Commissioner's Office, KSP, provided this office with a response to the issues raised in the appeal. Reiterating KSP's position that, pursuant to KRS 61.872(6), release of the requested items would cause an undue burden on the agency by releasing and revealing polygraph examination methods and tactics, Ms. Perkins further advised:
Further, the Department argues that the availability of polygraph defeating measures, via the internet and other media, necessitate protection of polygraph techniques. Release of the video tape and policy that outlines polygraph questioning methods would open the door for suspects to gain access and knowledge of exactly how the Department conducts polygraph examinations, thereby undermining the validity of the examinations and impacting not only future Department polygraph exams but those of other police agencies as well. The Attorney General's Office has held in the past that a public agency may properly invoke KRS 61.872(6) to deny a request for public records if release of the records would compromise a significant governmental interest or impede important operations, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records or information contained therein. See 04-ORD-058; 95-ORD-121; 97-ORD-129; and 99-ORD-051.
Pursuant to KRS 61.880(2)(c), and to facilitate our review of the issues on appeal, we requested that the KSP provide this office with access to the records withheld for in camera inspection and requested that KSP provide additional documentation for substantiation by responding to a series of questions. KSP's responses established that, at the time of the examination, Mr. Hurst was an employee of the Warren County Detention Center and was the subject of an administrative investigation conducted by the Detention Center and the agency had concluded its administrative investigation of Mr. Hurst. The KSP advised that its involvement in the matter was limited to administering a voluntary polygraph examination to Mr. Hurst. Our in camera review of the portions of the polygraph policy withheld, reveal that the subject matter included such items as testing techniques, test question construction, question techniques, testing format, and pre-test components. In elaborating on its position that disclosure of the withheld portions of the polygraph polices and the video of the polygraph may serve to undermine the integrity of future polygraph examinations, KSP further advised:
Release of the withheld portions of the subject polygraph policy and the video of Hurst's polygraph examination would provide insight into polygraph administration questioning techniques that if generally known, could undermine the polygraph process by allowing subjects to attempt to develop defensive countermeasures in an effort to skew exam results. Once a record is released, KSP has no ability to control whether it is published or placed on the internet. For this reason, KSP resists release of certain polygraph --related materials under the Open Records Act. If Hurst is seeking records to contest an adverse employment action by the Warren County Detention Center, he should proceed by means of subpoena which would allow KSP to control via judicial limitations the manner in which the records could be used and disseminated.
For the reasons that follow, we affirm the KSP's partial denial of Mr. Hurst's request. In 04-ORD-245, this office held that the KSP properly denied a request for a copy of a videotape of a polygraph examination, under authority of KRS 61.872(6). In reaching this decision, this office, at pages 5-7, stated:
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 [the requester] 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 [the requester] 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).
Here, as in 04-ORD-245, we believe that the KSP has convincingly established that release of the requested items would cause an undue burden on the agency by releasing and revealing polygraph examination methods and tactics, the release of which would compromise a significant governmental interest or impede important operations, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records or information contained therein. Accordingly, we find that the KSP properly withheld access to the videotape of the polygraph and portions of the polygraph policy under authority of KRS 61.872(6). 04-ORD-245.
KRS 61.878(3) provides:
No exemption of this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency. (Emphasis added).
By virtue of this provision, Mr. Hurst is vested with a broader right of access to records relating to him than the right of the general public to the same records. Records that would otherwise be removed from application of the Open Records Act pursuant to one or more of the exceptions codified at KRS 61.878(1), are accessible by Mr. Hurst. However, there are four exceptions to this broad right of access; a public agency employee (including an applicant for employment) is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)), or records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly (KRS 61.878(1)(l)). Nor is the employee entitled to inspect or copy "any examination" or any documents relating to ongoing criminal or administrative investigations by an agency." KRS 61.878(3).
In 02-ORD-168, the Attorney General construed this exclusionary language as follows:
While we therefore cannot affirm the [public agency's] denial of [the requester's] request on the basis of KRS 61.878(1)(g), we find that the exclusionary language in KRS 61.878(3) supports its position. Webster's New World Dictionary 487 (2d ed. 1974) defines the noun "examination" as "an examining or being examined; investigation; inspection; scrutiny; inquiry; testing, " and the verb "examine" as "to look at or into critically or methodically in order to find out the facts, conditions, etc., of; . . . scrutinize." While an examination is commonly understood to involve an objective assessment of knowledge and skill, these definitions suggest a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto that are the subject of this appeal. We conclude that [the requester's] broad right of access to records relating to him under KRS 61.878(3) must here yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination. Accord, 98-ORD-137 (Kentucky State Police properly denied trooper's request for sergeant's promotional examination on the basis of KRS 61.878(3)).
Id., pp. 8-9. By its express terms, KRS 61.878(3) authorizes public agencies to withhold examinations of any kind or character from the public employee to whom they relate. Accordingly, because the withheld records relate directly to the polygraph examination, we find that the KSP properly denied Mr. Hurst's request for access to the videotape of the polygraph and portions of the polygraph policy, under the "examination" exception of KRS 61.878(3). 02-ORD-168.
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.