Request By:
Clarence T. Hurst
Mary Ann Scott
Roger Wright
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 responses of the Kentucky State Police (KSP) to Clarence T. Hurst's April 14, 2008, request to view the video of his polygraph exam and his April 28, 2008, request for a copy of the "final report of the polygraph administered to Calinda Kieffer, in Bowling Green, by John Bruner" violated the Open Records Act.
In a letter dated April 14, 2008, Mr. Hurst requested to view the video tape for the polygraph which was administered to him by examiner John Bruner.
By letter dated April 24, 2008, letter, Mary Ann Scott, Official Custodian of Records, Commissioner's Office, KSP, denied Mr. Hurst's request to review the video of his polygraph exam, pursuant to KRS 61.872, as disclosure would cause an undue burden on the agency.
In a letter dated April 28, 2008, Mr. Hurst requested a copy of the final polygraph report of Calinda Kieffer, administered on 9/10/07.
By letter dated May 6, 2008, Ms. Scott denied Mr. Hurst's request for the final polygraph report advising:
Your request is denied in accordance with KRS 61.878(1)(j), which states records that should be exempt include "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." 99-ORD-204 affirmed the KSP's denial of polygraph reports on the basis that these records "express the opinion of the polygraph examiner and are, therefore, exempt from inspection."
Shortly thereafter, Mr. Hurst initiated the instant appeal. Addressing the request for the final polygraph report which pertained to Calinda Kieffer, he argued that the report would be generated after a quality control review and would become the "official opinion of quality control, " which wording he indicated came from a redacted version of KSP's polygraph procedure manual and that the manual states that when the field examiner receives the quality control report from the polygraph program manager, "The field examiner will then sign the polygraph report and send a copy to the officer who requested it." It is Mr. Hurst's position that "this action would make this information part of an investigation which in turn would make this public record and no longer just an internal document." Addressing his request to view the video of his polygraph exam, referencing 08-ORD-010, in which he stated the KSP had argued that "once a record is released, KSP has no ability to control whether it is published or placed on the internet, he argued that his request to "view" the video of his polygraph in no way undermines the polygraph process and allows the KSP to retain control and since he was no longer the focus of any investigation his broader right of access to documents that relate to him should prevail.
After receipt of notification of Mr. Hurst's appeal, Ms. Scott provided this office with a response to the issues raised in the appeal. In her response, she advised:
The Department of State Police (KSP) respectfully submits its response to the appeal of Clarence T. Hurst. The appeal appears to raise two issues: (1) production of a polygraph report, and (2) appellant's request to review a copy of the videotape of his polygraph.
With respect to the first issue, KSP has determined that the polygraph report appellant seeks will be released with the name of the person being polygraphed redacted due to the fact that the nature of the investigation involved allegations of sexual misconduct. This redaction is taken pursuant to KRS 61.878(1)(a). KSP has further determined that it will release the post-test interview portion of the appellant's videotape which appellant seeks as release of that portion of the video will not implicate release of the confidential tactics, techniques and procedures that would be at risk if the remainder of the video is released. KSP requests that the remainder of this appeal (i.e., to review the entire polygraph video) be denied under the opinion issued in 08-ORD-010.
We address first the request for a copy of the final polygraph report which pertained to Calinda Kieffer. In its supplemental response, KSP advised that Mr. Hurst would be provided a redacted copy of the report, with the name of the person polygraphed redacted, under authority of KRS 61.878(1)(a). In his request letter, Mr. Hurst argues that he is entitled to the final report of the polygraph given Ms. Kieffer because she made accusations of sexual misconduct against him and being the subject of the investigation and a county employee, he had a greater right to this information. We agree with Mr. Hurst's position.
As we noted in 08-ORD-010, by virtue of KRS 61.878(3), Mr. Hurst, as a former public agency employee, 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 him. Since the requested report related to Mr. Hurst, we conclude that the KSP improperly relied on KRS 61.878(1)(a) in partially denying his request and should provide him with an unredacted copy of the report.
In its supplemental response to Mr. Hurst's request to view the video of his polygraph exam, the KSP advised that it would release to him the post-test interview portion of the video, but denied access to the remainder of the video, indicating that disclosing that portion of the video would implicate release of confidential tactics, techniques and procedures that would be at risk if that portion of the video is released and withheld access under authority of our decision in 08-ORD-010.
In 08-ORD-010, an appeal involving the same parties, this office held that the KSP properly denied Mr. Hurst access to the video of his polygraph exam, under KRS 61.872(6), as disclosure would cause an undue burden on the agency, in that releasing and revealing polygraph examination methods and tactics would compromise a significant governmental interest or impede important operations, and thereby necessitate an immediate revision of policy or practice so as to avoid the subversive use of the records or information contained therein. As noted above, the KSP determined that release of the post-test interview portion of the video would not implicate these concerns and agreed to release that portion of the video, but denied access to the remainder of the video as release of it would implicate the concerns sat forth in 08-ORD-010. Based on these facts and this argument, we find that the KSP properly withheld access to the remainder of the video, under authority of KRS 61.872(6) and 08-ORD-010.
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.