Request By:
J. Michael Fleming
Assistant Counsel
Department of Labor
U.S. 127 Building South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Robert M. Hoffer, Attorney, has appealed to the Attorney General pursuant to KRS 61.880 your refusal to send him a copy of papers in your custody. The papers are described as pages 3 and 4 of the compliance worksheets containing the statements of witnesses concerning the electrocution accident which took place at Iler Construction Company in Florence, Kentucky on May 30, 1981.
The correspondence sent to this office indicates that in response to a previous request by Mr. Hoffer you sent him a copy of all materials and documents from the file pertaining to said accident with the exception of the compliance officer's preliminary worksheets and witness statements; that your office inadvertently included in the materials sent two of the four compliance worksheets which you had said you were not sending because witness statements were made confidential by law. Mr. Hoffer now argues that since you sent pages 1 and 2 of the compliance worksheets you are now estopped from refusing to send pages 3 and 4.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that there is no validity to Mr. Hoffer's estoppel argument since estoppel is not effected by inadvertent actions or mistakes but only by previous actions by which the contrary has been admitted, implied, or determined.
Further, it is the opinion of the Attorney General that you are acting in conformity with the Open Records Law, KRS 61.870 to 61.884, in denying access to the papers in the case file containing the statements of witnesses taken in private interviews by OSHA Compliance Officers. In OAG 82-192 we pointed out that KRS 338.101(1)(a) authorizes the representative of the Commissioner of Labor:
"To enter without delay and advanced notice any place of employment during regular working hours and at such 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 then stated our belief that the term "question privately" makes any statement taken from an employee, or other person authorized to be questioned by the statutes, confidential, and, as such, it is exempt from mandatory public disclosure by KRS 61.878(1)(j).
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).