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
Although his letter to this Office does not specifically so state, Thomas W. Miller, Esq. is apparently appealing to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records of your agency. In any event, we are treating Mr. Miller's letter of September 30, 1985 as an appeal under the Open Records Act.
Mr. Miller's letter to your agency of August 27, 1985 described the records in question as the results of the tests and investigations performed by your division of occupational safety and health relative to Ms. Pam Weaver and her complaints to your agency.
In your letter of September 6, 1985 to Mr. Miller you stated in part that the request for the copy of the occupational safety and health investigative file with respect to the Livestock Disease Diagnostic Center in Lexington contained the compliance officer's worknotes, which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). You, therefore, declined to release the preliminary worknotes. Copies of all other forms and documents in the file were made available.
In his letter of September 30, 1985 to this Office, Mr. Miller stated that as a result of his request for records he received a number of documents pertaining to your agency's investigation of Ms. Pam Weaver's worksite. He stated, however, that certain documents, the identification of which are unknown, were not delivered. He wants all remaining documents.
The undersigned Assistant Attorney General contacted your office by telephone on October 4, 1985 and was advised by your secretary that the only documents in the file in question which were not furnished to Mr. Miller were the compliance officer's worknotes, as stated in your letter of September 6, 1985.
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.
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 dealth 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, work notes 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 and OAG 85-125, copies of which are enclosed.
Therefore, it is the opinion of the Attorney General that your denial of inspection of the compliance officer's worknotes was proper under the Open Records Law pursuant to KRS 61.878(1)(g) and (h).
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Miller, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).