Request By:
Mrs. Carol M. Palmore
General Counsel
Department of Labor
U.S. 127 Building South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
The law firm of Williams, Housman and Sparks, on behalf of the widow of J. O. Townsley, has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of certain records described as the statements of witnesses pertaining to the fatal injury of J. O. Townsley which occurred on January 31, 1982 in Ballard County, Kentucky. By letter dated March 16, 1982, you granted Mrs. Townsley's attorneys inspection of all the other records in the investigative file but excepted the statement of witnesses on the grounds that "these statements are excluded from release by the provisions of 200 KAR 1:020, Sec. 4(1)."
In a letter to the Attorney General dated April 2, 1982, you further base your denial of inspection of the records on KRS 338.101 which grants to the Commissioner of Labor or his authorized representative the right to inspect work places within the Commonwealth and to "question privately any . . . employee . . . and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness (copy shown sent to Mr. Sparks, attorney, Williams, Housman and Sparks).
OPINION OF THE ATTORNEY GENERAL
It is not sufficient to cite as a reason for denying the inspection of a record an administrative regulation because a public agency does not have the authority to make records confidential by regulation. KRS 61.880 provides, inter alia, as follows: "Any agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." The exception relied on must be one of the exceptions provided in KRS 61.878(1). The Department of Labor's first response to Mr. Sparks was, therefore, inadequate.
It is the opinion of the Attorney General that your reliance on KRS 338.101 for denying inspection of the described records is well founded. Subsection (1) (a) of that statute authorizes the representative of the Commissioner of Labor:
To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agency, employee, or employee's representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness. "
We believe that the term "question privately" makes any statement taken from an employee, or other person authorized to be questioned by the statute, confidential, and, as such, it is exempt from mandatory public disclosure by KRS 61.878(1)(j).
In your letter of April 2, 1982, you explain why you released a transcript of the informal hearing where testimony by witnesses was heard but refused to release the statements made by witnesses in the private interviews authorized by statute. You state: "[T]he typed transcript was of an informal hearing at which the individuals who gave us witness statements, as well as other employees, were present. In addition, the safety director of the Kentucky Association of Electrical Corps, the general manager of the Jackson Purchase RECC, the safety director of the JPECC, the maintenance supervisor of JPECC, and the union stewart were present at the informal hearing. In other words, that transcript was not of a confidential meeting or conversation between employees and our compliance officers, but was rather an informal meeting between employees and management officials, was not considered to be confidential, and does not fall within any of the exceptions to the Kentucky Open Records Law."
We believe that your distinction between the two types of statements is valid.
In summary, it is the opinion of the Attorney General that the Department of Labor properly denied inspection of the statements of witnesses taken in private interviews.
As directed by statute, a copy of this opinion is being sent to the requester who has the right to challenge it in court under KRS 61.880(5).