Court Upholds that Q&As in Pre-Employment Polygraph is Exempt from Public Record
On February 23, 2012, in Robyn Rush v. City of High Springs, (Case No. 1D11-3714) the First District Court of Appeal held that questions and answers in a law enforcement pre-employment polygraph examination are exempt from the public record. Robyn Rush, represented by retired University of Florida professor Joseph Little, argued that the City of High Springs violated Florida Statutes Chapter 119 when the City redacted the polygraph examination questions and answers from a document she requested. The City argued and the Court agreed that the plain language of the exemption found in Chapter 119.071(1) applied in this case. Although Mr. Little had various arguments regarding legislative intent and why the exemption did not apply, the Court rejected his arguments and stated that if the meaning of the statute is clear, the court’s task is to apply the plain language of the statute.
Linda Bond Edwards argued on behalf of the City that the exemption was clear on its face. Because truthfulness and honesty are necessary traits for law enforcement officers, there was no question that the polygraph was used to measure a legitimate employment characteristic. The Court agreed with her that all of Rush’s arguments came back to the fact that the polygraph was an examination given in the course of employment to determine the fitness of an applicant for employment, thereby squarely meeting the language of the exemption.
This Rush opinion is the first appellate decision on the question of whether the exemption applied to pre-employment polygraph examinations. In 1991, the Sixth Judicial Circuit addressed the issue in Gillum v. Times Publishing Company, No. 91-2689-CA (Fla 6th Cir. Ct. July 10, 1991 but the decision was not appealed. The Court had previously ruled on the question and answer exemption in Dickerson v. Hayes, 543 So. 2d 836 (Fla. 1st DCA 1989), a case involving a summary of examination answers. Similarly, the court looked at the plain reading of the exemption to find that because the document contained answers to questions, the exemption applied.
 Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. A person who has taken such an examination has the right to review his or her own completed examination