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
Mr. James L. Rethi, Jr., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. He described the records in question as any documents, reports, statements or other material pertinent to the incident on October 18, 1984 at the Wal-Lyn Shopping Plaza in Salyersville, Kentucky in which at least two persons died as a result of breathing poisonous fumes.
In your letter of August 22, 1985 to Mr. Rethi you stated in part that the file pertaining to the incident in question contains the compliance officer's preliminary worknotes, which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h), and six employee interview statements which are exempt from public inspection pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(j). You, therefore, refused to release the preliminary worknotes and the employee statements to Mr. Rethi. Copies of all other forms and documents in the file were made available.
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 those records in the occupational safety and health investigative file consisting of the compliance officer's worknotes and the six 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 85-123, 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 intraoffice 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). See also OAG 85-58, copy of which is enclosed.
In connection with the six 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 employers, owner, operator, agency, employee, employees 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 and OAG 85-125, copies of which are enclosed.
Thus, it is the opinion of the Attorney General that your denial of inspection of the compliance officer's worknotes and the six employee interview statements was proper under the Open Records Law pursuant to KRS 61.878(1)(g), (h), and (j) and KRS 338.101(1)(a).
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Rethi, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).