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
Richard K. Jacob has appealed to the Attorney General the Labor Cabinet's denial of his law firm's request to inspect all records and material in the occupational safety and health investigative file relative to Airco Carbide and the accident involving James Clark. The specific records and material requested are described as preliminary worknotes and employee interview statements.
In the Labor Cabinet's letter of July 25, 1984, written by Mark S. Snell, Legal Aide, to Ms. Joyce Waller, an assistant to Richard K. Jacob, Ms. Waller was advised that she would receive copies of all official documents and forms in the file with the exception of the compliance officer's worknotes and an employee interview statement. She was further advised that these items are exempt from inspection by KRS 61.878 (1)(g)(h) and (j) and are, therefore, not subject to release under the provisions of the Open Records Act. OAG 83-140 and OAG 83-335 were cited in support of the Labor Cabinet's decision.
Opinion of the Attorney General
It is the opinion of the Attorney General that the Labor Cabinet acted in conformity with the Open Records Law, KRS 61.870 to KRS 61.884, in denying access to those records in the occupational safety and health investigative file consisting of the compliance officer's worknotes and employee interview statements.
KRS 61.878(1)(g) and (h) exempt the following public records from public inspection in the absence of a court order:
"(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 connection with employee interview statements KRS 338.101(1)(a) authorizes the Commissioner or his authorized representative:
"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, agent, employee, 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." (Emphasis supplied.)
This office has previously stated that the term "question privately" makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61.878(1)(j). That particular statutory provision states that public records or information, the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly, are excluded from the application of KRS 61.870 to KRS 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction. See OAG 84-345, OAG 83-140 and OAG 82-192, copies of which are enclosed.
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).