Request By:
Betty A. Springate, Esq.
General Counsel
Kentucky Labor Cabinet
The 127 Building
U.S. Highway 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Frank W. Godbey has appealed to the Attorney General your denial of his request to inspect all material contained in the occupational safety and health investigative file with respect to North American Philips Lighting Corporation of Danville, Kentucky. The specific records requested are described as the compliance officer's worknotes.
In your letter of September 20, 1984 to Frank W. Godbey, you informed him that you were supplying copies of all official documents and forms from the file in question with the exception of the compliance officer's worknotes which are exempt from release by KRS 61.878(1)(g) and (h). You stated that these preliminary worknotes are not releasable under the provisions of the Open Records Act and you cited OAG 83-140.
Frank W. Godbey's letter to the Attorney General states in part, "I recognize that there is presently an Attorney General's opinion that prohibits this type of disclosure. " However, he does not agree that this course of action is proper and in the best interests of upgrading safety and health in the workplace. He asks the Attorney General to review the existing opinion relative to disclosure.
Opinion of the Attorney General
It is the opinion of the Attorney General that you acted in conformity with the Open Records Law, KRS 61.870 to KRS 61.884, in denying access to that material in the file consisting of the worknotes of the compliance officer.
We have again examined OAG 83-140, copy enclosed, and in our opinion it correctly interprets that particular section of the Open Records Law with which it dealt. In that opinion we concluded that the Labor Cabinet could properly deny access to papers in a case file containing the statements of witnesses taken in private interviews by OSHA Compliance Officers. See also KRS 338.101(1)(a), KRS 61.878(1)(j) and OAG 84-345, copy enclosed, dealing with both of those statutory provisions.
KRS 61.878(1)(g) and (h) provide that the following public records are excluded from the application of the Open Records Law and shall be subject to inspection only upon the order of a court of competent jurisdiction:
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 83-335, copy enclosed, we dealt with the occupational safety and health compliance officer's worknotes. Where those worknotes are compiled in the ordinary course of an investigation of an employer worksite, and contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, the material is preliminary and the exemption set forth in KRS 61.878(1)(g) applies. Furthermore, work papers and intra-office memoranda are exempt from public inspection under KRS 61.878(1)(h). Thus, worknotes containing the compliance officer's hand-drawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations are exempt from public inspection by KRS 61.878(1)(h). In our opinion, OAG 83-335 has correctly interpreted the Open Records Law.
Therefore, it is the opinion of this office that your denial of the request of Frank W. Godbey to inspect the occupational safety and health compliance officer's worknotes was proper as such material is exempt from public inspection, in the absence of a court order, under KRS 61.878(1)(g) and (h). OAG 83-335, rather than OAG 83-140, is one of the applicable opinions on this point.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in court pursuant to KRS 61.880(5).