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 Kentucky State Reformatory violated the Open Records Act in denying Michael Grant's request, dated June 9, 2008, for the following:
1. Purchase a copy of video of examination;
2. Companies Name, address where books were sent from; and
3. Copy of Examiner's Findings.
On June 11, 2008, Laura Vestal, Offender Information Supervisor, KSR, denied the request, advising:
Your request for video tapes and copies of findings from your polygraph examination has been denied based on the following:
"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; and 99-ORD-051."
Your request for "Companies Name, address where books were sent from" has already been addressed and sent with your request dated 06-05-08.
Shortly thereafter, Mr. Grant initiated the instant appeal, arguing in part, that because he was assessed $ 120.00 for his polygraph exam and the requested video and polygraph report relate solely to him, he was entitled to copies of the records under authority of KRS 197.025(2).
After receipt of notification of the appeal, Leigh K. Meredith, Staff Attorney, Justice and Public Safety Cabinet, provided this office with a response to the issues raised in the appeal. Addressing the KSR's denial of Mr. Grant's request for a copy of the polygraph video, she argued that "[w]ith respect to the polygraph video, the KSR properly denied Mr. Grant's request pursuant to KRS 61.872(6) because the release of the video could create an undue burden by revealing polygraph examination methods and tactics. " In support of this position, Ms. Meredith explained:
As the Kentucky State Police noted in their response in 08-ORD-010:
08-ORD-010, pp 2-3. If the Dept. of Corrections released a polygraph video to one inmate, the Department would then have to create new procedures to be used in all other polygraph examinations administered to other inmates in all Dept. of Corrections facilities statewide. Thus, KSR properly denied Mr. Grant's open records requests.
Addressing Mr. Grant's assertion that he was entitled to the video pursuant to KRS 197.025(2), Ms. Meredith advised:
Mr. Grant argues that he should be able to review the video under KRS 197.025(2) because the polygraph applies to him, not the institution. However, the reason for KSR's denial of the video does not hinge on the video's applicability to Mr. Grant but on the Department's need to safeguard the existing confidentiality of the polygraph testing procedures and questioning techniques for future cases. Thus, the KSR properly withheld Mr. Grant's polygraph video from release in this open records request.
With respect to KSR's denial of the request for a copy of the polygraph examiner's findings, Ms. Meredith advised that, after the initiation of the instant appeal, she and KSR staff reviewed the Polygraph Report to determine whether its release would jeopardize the confidentiality of the polygraph process. After review, it was determined that KSR had improperly denied access to the portion of the Report which contained the inmate's personal identification and a summary of the investigation leading up to the polygraph examination. Ms. Meredith advised that these portions of the Report would be provided to Mr. Grant.
Asserting that the remainder of the Report was properly withheld, Ms. Meredith stated that page two of Mr. Grant's Polygraph Report contains the questions and techniques used in the polygraphing procedure and should be safeguarded to protect the confidentiality and integrity of the polygraph program pursuant to KRS 61.872(6), 08-ORD-010 and 08-ORD-125. In addition, she advised that page two of the Report contained preliminary opinions and recommendations of the polygrapher which remain exempt from disclosure pursuant to the Open Records Act. In support of this position, KSR argued:
In 00-ORD-3, the Attorney General's Office stated:
The Adjustment Hearing Officer in Mr. Grant's disciplinary action also did not adopt the polygrapher's preliminary comments or recommendations into the finding of guilt. (See attached Disciplinary Report, Part II -- Hearing and Appeal). The Hearing Officer relied primarily upon inmate's request for books from the company that installed the security fence, including information on the fencing, lighting and locks. (Id.). Thus, Page Two of the Polygraph Report maintains its preliminary status pursuant to KRS 61.878(1)(j).
For the reasons that follow, we affirm the KSR's actions relative to Mr. Grant's open records request. In 08-ORD-010, this office held that the Kentucky State Police properly denied an individual access to the video of his polygraph examination, 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 KSR argued that if it released a polygraph video to one inmate, it would then have to create new procedures to be used in all other polygraph examinations administered to other inmates in all Dept. of Corrections facilities statewide, and thus, implicate the concerns sat forth in 08-ORD-010. Accordingly, we find that 08-ORD-010 is controlling authority on this issue in the instant appeal and conclude that the KSP properly withheld access to the video, under authority of KRS 61.872(6) and 08-ORD-010. Because of this conclusion, Mr. Grant would not be entitled to a copy of the video under KRS 197.025(2).
Addressing next, KSR's actions relative to Mr. Grant's request for "companies name, address where books were sent from." In its June 11, 2008, response, KSR advised him that this request had already been addressed and sent to him with its response to his June 5, 2008, request. In a June 28, 2008, reply submitted to this office, Mr. Grant indicated that he had been given the order form and mailing envelope from the company. Since Mr. Grant appears to have been given this information, the issue of access to the information is moot. 40 KAR 1:030, Section 6.
Moreover, as phrased, this was a request for information, as opposed to a request for a specific record. An agency is not obligated to honor requests that constitute a request for information as opposed to a request for specifically described records. The Kentucky Open Records Act addresses requests for records, not requests for information. In 95-ORD-131, p. 2, we observed:
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request."
Accordingly, we conclude that the KSR's response in this regard would not constitute a violation of the Open Record Act.
In its response provided to this office, KSR advised that it had reviewed the report of the polygraph examiner's findings and determined that the portion of the report which contained Mr. Grant's personal identification and a summary of the investigation leading up to the polygraph exam would not jeopardize the polygraph process and would be provided to him. Since this portion of the report has been provided to Mr. Grant, the records access issue as to this part of the record is moot. 40 KAR 1:030, Section 6. KSR asserted that the remainder of the report contained the questions and techniques used in the polygraphing procedure and was withheld, under authority of KRS 61.872(2), to protect the confidentiality and integrity of the polygraph program. Under these facts, the KSR properly withheld this portion of the report for the same reasoning and authority set out above for the video of the polygraph exam. KRS 61.872(6); 08-ORD-010.
In addition, KSR stated that the report contained preliminary opinions and recommendation of the polygraph examiner and denied access to this portion of the report under KRS 61.878(1)(j) . In its supplemental response, KSR advised that the Adjustment Hearing Officer did not adopt the polygraph examiner's preliminary comments or recommendations into the finding of guilt. Accordingly, this portion of the report retains their preliminary status and could properly be withheld under authority of KRS 61.878(1)(j). 00-ORD-3.
In his letter of appeal, Mr. Grant added a new request for a "copy of test graphs." Since this request was not requested in his original request which is the subject matter of the instant appeal, we conclude that the issue as to this request is not ripe for adjudication and will not be addressed in this appeal.
Finally, Mr. Grant argues that the conduct of the polygraph exam and his adjustment hearing violated his due process rights. We cannot address, in the context of an open records appeal, a complaint that one's due process rights have been violated. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.
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.