TO BE PUBLISHED 

93-ORD-124

October 29, 1993

IN RE: Herman C. Tapp/Kentucky State Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police in responding to Mr. Herman C. Tapp's request for certain records in their custody. Those records are identified as the videotape made on December 14, 1992, as Mr. Tapp underwent a polygraph examination, and the two graphs which were generated during the examination. On behalf of the State Police, Ms. Diane Smith, Official Custodian of Records, denied Mr. Tapp's request. Ms. Smith relied on KRS 61.878(1)(j), which was recodified by the 1992 General Assembly and is hereinafter referred to as KRS 61.878(1)(k), and KRS 61.878(1)(h), which was also recodified and is hereinafter referred to as KRS 61.878(1)(i). It was her position that these statutes operate in tandem to prohibit release of the requested records. She observed:

Mr. Tapp's appeal followed.

We are asked to determine if the Kentucky State Police properly relied on KRS 61.878(1)(k) and (i) in denying Mr. Tapp's request for the videotape and graphs made on December 14, 1992. For the reasons set forth below, we conclude that the State Police erred in relying on the cited exceptions and in failing to release the records.

This Office has previously recognized that the actual polygraph test of a person, as well as the examiner's report, may be withheld from public inspection pursuant to KRS 61.878(1)(a). OAG 83-260; OAG 86-22; OAG 86-39; OAG 90-144. At page 3 of OAG 86-39, we observed:

In addition, we held that the report of the examiner could be excluded from public inspection pursuant to KRS 61.878(1)(i) inasmuch as it contains nothing more than "a reflection of his opinions and observations . . . ." OAG 86-39, p. 3.

However, in the instant appeal we do not believe that these opinions are controlling. The requester, Mr. Tapp, is also the subject of the polygraph examination. Accordingly, we do not believe KRS 61.878(1)(a), the privacy exception, is implicated. Nor do we believe KRS 61.878(1)(i) has any bearing on these records. Mr. Tapp does not request copies of the examiner's report, containing opinions and observations, but copies of the graphs themselves. It is the opinion of this Office that the graphs, absent any analysis or commentary, cannot be characterized as "preliminary memoranda in which opinions are expressed or policies formulated or recommended." Accordingly, we believe that the State Police erred in denying Mr. Tapp's request.

Similarly, we believe that the State Police improperly denied Mr. Tapp's request for the videotape which was made as he underwent the polygraph examination. Although Ms. Smith maintains that the videotape, along with the graphs, is exempt pursuant to KRS 61.878(1)(i), we fail to see the relevance of this exception. Like the graphs, the videotape cannot be characterized as a "preliminary memorand[um] in which opinions

are expressed or policies formulated or recommended." Inasmuch as Ms. Smith asserts no other grounds for denial of Mr. Tapp's request, we must conclude that the videotape too was improperly withheld.

It should be noted that KRS 61.878(1)(k), which authorizes agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly [ ]," may be properly invoked only when records or information are made confidential by separate legislative enactment, as opposed to the exceptions to the Open Records Law. That provision need not be cited as a means of incorporating the other exceptions to the Open Records Law, each of which stands alone. Ms. Smith does not cite a separate legislative enactment which mandates nondisclosure of the records requested by Mr. Tapp. In a followup conversation with Ms. Smith, she indicated that she was not aware of any other statute mandating nondisclosure.

Ms. Smith is directed to provide Mr. Tapp with copies of the videotape made as he underwent the polygraph examination on December 14, 1992, if that tape is still in existence, and the two graphs generated during the examination.

The Kentucky State Police may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

ABM/par/1164

Distributed to:

Ms. Diane Smith

Official Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601

Mr. Herman Tapp

96453-5BU14

Eastern Kentucky Correctional

Complex

Box 636

West Liberty, KY 41472