Request By:
Kenneth J. Costelle, Esq.
Assistant Counsel
Kentucky Labor Cabinet
The 127 Building
U.S. Hwy. 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
James G. Apple, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his associate's request to inspect certain public records in your custody. The records in question were described as the complete occupational safety and health investigative file concerning the Brown-Eagle Corporation.
In your letter of October 16, 1985 to Robert M. Connolly, Esq., Mr. Apple's associate, you stated in part that the file requested contains the compliance officer's worknotes which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). You, therefore, refused to release the compliance officer's preliminary worknotes. Copies of all other documents and forms in the file were made available.
Mr. Apple's letter to this Office states that the occupational safety and health investigation concerned an accident at the Borden Chemical Plant in Louisville on July 18, 1985 which involved the death of three men. A citation was issued against Brown-Eagle Corporation which was involved in the maintenance of certain portions of the plant. Brown-Eagle is contesting the citation and the material in the file is sought for the purpose of giving insight into the basis for the citation. In addition, the materials sought concern the observations of investigating officers immediately after the fire on July 18, 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 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, 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 85-129 and OAG 85-128, 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 such material constitutes preliminary drafts, notes, recommendations and memoranda.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Apple, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).