Title of Regulation: 18VAC120-30. Regulations Governing Polygraph Examiners (amending 18VAC120-30-200).

Statutory Authority: § 54.1-1802.1 of the Code of Virginia.

Public Hearing Information:

December 19, 2023 - 2 p.m. - Department of Professional and Occupational Regulations, Perimeter Center, 9960 Mayland Drive, Suite 400, 1st Floor Training Room, Richmond, VA 23233

Public Comment Deadline: January 19, 2024.

Agency Contact: Marjorie King, Regulatory Boards Administrator, Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-2785, FAX (866) 430-1033, TDD (804) 527-4290, or email contractors@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia requires that powers and duties of regulatory boards shall be to promulgate regulations to ensure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system. Section 54.1-1802.1 of the Code of Virginia requires the department to administer and enforce the provisions of Chapter 18 (§ 54.1-1800 et seq. of the Code of Virginia), including the establishment of minimum qualifications for the operators of polygraphs and other detection devices.

Purpose: This regulatory change is needed to ensure that the regulation is consistent with applicable statute in the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). The regulatory change will enhance the public welfare by ensuring that individuals who are examined by a licensed polygraph examiner are provided notice that the results of their polygraph examination are subject to disclosure under the Virginia Freedom of Information Act (FOIA) and can make an informed decision as to whether to proceed with an examination. The goal of the regulatory change is to amend the regulation so as to be consistent with previously amended provisions of FOIA.

Substance: 18VAC120-30-200 is amended to require that an examiner disclose to an examinee that the polygraph examination is subject to disclosure under FOIA.

Issues: There are no advantages or disadvantages to the public. There are no advantages or disadvantages to the agency or the Commonwealth

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Department of Professional and Occupational Regulation (DPOR), based upon the recommendation of the Polygraph Examiners Advisory Board (board), proposes to update the regulatory text to require a polygraph examiner to disclose to an examinee that the polygraph examination is now subject to disclosure under the Virginia Freedom of Information Act (FOIA) following a legislative change in 2021.

Background. This regulation applies to polygraph examiners, interns, and training. According to DPOR, prior to 2021, law enforcement agencies were able to withhold polygraph reports which were requested pursuant to FOIA (§ 2.2-3700 et seq. of the Code of Virginia) because some case files were exempt from disclosure under FOIA. Chapter 483 of the 2021 Acts of Assembly, Special Session I,² expanded the public's access via FOIA requests to some closed law enforcement cases. DPOR received a comment indicating that current provisions in the standards of practice and conduct in this regulation may be inconsistent with FOIA after the 2021 legislative change and that amendments to the regulation may be required with regards to provision of copies of polygraph examination to the public. DPOR consulted with its counsel and now proposes to amend the language to require a polygraph examiner to disclose to an examinee that the polygraph examination is subject to disclosure under FOIA.

Estimated Benefits and Costs. DPOR reports that following the 2021 legislative change, law enforcement agencies began providing polygraph exam reports for closed cases when requested under FOIA. However, the current regulatory language is silent about whether polygraph examinations are subject to FOIA. The board is proposing to add to the text a requirement that a polygraph examiner disclose to an examinee that the polygraph examination is now subject to disclosure.

The proposed text does not provide specific information on what exactly is subject to disclosure (i.e., only exam results, exam questions, etc.) or in which cases disclosure applies (i.e., active or closed cases), effectively leaving such questions to the interpretation of FOIA. Additionally, administration of all polygraph examinations regardless of type (e.g., criminal investigations or pre-employment check) require the examinee's consent. Thus, the possibility of disclosure under FOIA may dissuade some individuals from subjecting themselves to an exam; however, this effect would be a consequence of the legislative change and not this regulatory change. Instead, the regulation would only require the examiner to disclose to the examinee that the exam may be publicly accessible, thereby alerting the examinee to that potential.

Since polygraph exams have been subject to disclosure under FOIA since 2021, and the potential impact upon consent derives from the legislative change, the proposed regulatory text would not have a significant economic impact other than clarifying for the examiner and examinee that the exam can become public information.

Businesses and Other Entities Affected. This regulation applies to all licensed polygraph examiners and polygraph interns. As of April 1, 2023, there were 312 licensed polygraph examiners and 28 polygraph interns.³ No regulants appear to be disproportionately affected.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁴ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposed language would incorporate practices into the regulation that have already been in effect since 2021 under Virginia law, and thus the main effect is clarification. Therefore, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendment does not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendment does not introduce costs for local governments nor affect any locality more than others.

Projected Impact on Employment. The proposed amendment does not appear to affect employment.

Effects on the Use and Value of Private Property. No impact on the use and value of private property nor real estate development costs is expected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+CHAP0483

³ Source: Department of Professional and Occupational Regulation

⁴ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁵ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁶ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Department of Professional and Occupational Regulation concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments require a polygraph examiner to disclose to an examinee that the polygraph examination is subject to disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

18VAC120-30-200. Polygraph examination procedures.

A. Each licensed polygraph examiner and registered polygraph examiner intern must post, in a conspicuous place for the examinee, his license or registration, or a legible copy of his license or registration to practice in Virginia.

B. The examiner shall provide the examinee with a written explanation of the provisions of 18VAC120-30-200, 18VAC120-30-210, and 18VAC120-30-220 at the beginning of each polygraph examination.

C. The examinee may request a recording of the polygraph examination being administered. Each examiner shall maintain recording equipment and recording media adequate for such recording. The examiner shall safeguard all examination recordings with the records he is required to keep pursuant to 18VAC120-30-230. All recordings shall be made available to the department, the examinee or the examinee's attorney upon request. The examiner may charge the examinee a fee not to exceed $35 only if the examinee requests and receives a copy of an examination.

D. The examinee shall be entitled to a copy of all portions of any written report pertaining to his examination which that is prepared by the examiner and provided to any person or organization. The examinee shall make his request in writing to the examiner. The examiner shall comply within 10 business days of providing the written report to any person or organization or receiving the examinee's written request, whichever occurs later. The examiner may collect not more than $1.00 per page from the examinee for any copy provided.

E. The provisions of subsections B, C, and D of this section shall not be applicable to any examination conducted by or on behalf of the Commonwealth or any of its political subdivisions when the examination is for the purpose of preventing or detecting crime or the enforcement of penal laws. However, examiners administering examinations as described in this section shall comply with subsection B of this section through a verbal explanation of the provisions of 18VAC120-30-210 and 18VAC120-30-220.

F. The examiner must disclose to the examinee that the examination is subject to disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).