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 Kentucky State Police violated the Open Records Act in responding to James N. Harrison's requests for records relating to a former Kentucky State Police (KSP) employee, and records relating to polygraph examinations conducted at Kentucky State Penitentiary (Penitentiary). For the reasons that follow, we affirm KSP's denial of Mr. Harrison's requests.
Mr. Harrison states that on August 24 and 26, 1999, he mailed two separate open records requests to State Police Post 2 in Madisonville, Kentucky. In his first open records application, he requested access to and copies of:
All polygraph questions, notes, and polygraph results of inmates Larry Thomas Roberts, # 119864, Randell Bills, # 107607, and Thomas Williamson, # 95646, all of Kentucky State Penitentiary, . . . as a results [sic] of investigations during the periods of September, 1998 until June, 1999 concerning allege [sic] illegal activities or rules violations.
Contemporaneously, Mr. Harrison requested a list of all inmates who had undergone polygraph examinations during the same period. Shortly thereafter, he requested all available information "pertaining to James Potter former longtime employee of the Kentucky State Police . . . [including all] incidences and/or violations of any policies, regulations, laws, codes, rule, etc., in which James Potter was charged, reprimanded, and/or sanctioned . . . [while employed by KSP]." These requests went unanswered, prompting Mr. Harrison to initiate an open records appeal. 1
Upon receipt of notice of Mr. Harrison's appeal, KSP custodian of records, Diane H. Smith, responded on behalf of the agency. Ms. Smith advised Mr. Harrison that KSP does not maintain a list containing the names of inmates upon whom polygraph examinations have been administered, and that it is not required to create one. Nor, Ms. Smith continued, does KSP have any records reflecting disciplinary action against former employee James Potter.
With respect to Mr. Harrison's request for polygraph questions, notes, and examination results of inmates Larry Thomas Roberts, Randell Bills, and Thomas Williamson, Ms. Smith invoked KRS 61.878(1)(j), arguing that these records "express the opinion of the polygraph examiner and are, therefore, exempt from inspection. " In support, she cited 93-ORD-124. With the exception of the procedural irregularity noted in footnote one, we find that KSP's response was otherwise consistent with the Open Records Act.
At page four of 93-ORD-51, and in numerous other open records decisions through the years, this office recognized that a public agency cannot afford a requester access to a document which does not exist, or which it does not have in its possession or custody. We further commented that, in general, it is not our duty to investigate in order to locate documents which the requesting party maintains exist, but which the public agency states do not exist.
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. Although there have been occasions when, under the mandate of this statute, the Attorney General has requested that the public agency substantiate its denial by demonstrating what efforts were made to locate a record or explaining why no record was generated, we do not believe that this appeal warrants additional inquiry. Because no complaints of misconduct were ever leveled against Mr. Potter, there are no records in KSP's custody which are responsive to this portion of Mr. Harrison's request. Similarly, KSP does not maintain a list of the names of inmates who have undergone polygraph examinations. Again, no record that is responsive to Mr. Harrison's request exists. Because the questions which Mr. Harrison raises are factual, and not legal in nature, our inquiry ends here. The response of the agency was consistent with the Open Records Act insofar as KSP cannot make available for inspection records which do not exist.
We concur with KSP in its view that records generated by a polygraph examiner in the course of administering a polygraph examination may properly be withheld pursuant to KRS 61.878(1)(j). In a line of opinions dating back to 1983, the Attorney General has recognized the "implied confidentiality [of] polygraph tests . . . ." OAG 83-260, p. 3. In a later opinion, this office observed:
The examiner's report in part would be merely a reflection of his opinions and observations and is only one of numerous items [that are used in making] a final decision [relative to an investigation].
OAG 86-22, p. 6. To the extent that KRS 61.878(1)(j)authorizes public agencies to withhold "preliminary recommendations, and preliminary memoranda in which opinions are expressed," that provision authorizes nondisclosure of the polygraph examiner's questions, notes, and report. See also OAG 86-39, OAG 90-144, and 93-ORD-124.
In addition, the Attorney General has recognized that:
The public interest in the questions and answers on a polygraph test is not outweighted 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 86-39, p. 3. Thus, the actual polygraph test of a person, as well as the examiner's notes and report, may be withheld from public inspection pursuant to KRS 61.878(1)(a), the privacy exception to the Open Records Act. We, therefore, affirm KSP's denial of Mr. Harrison's request for records relating to polygraph examination of certain named inmates.
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