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
Angela D. Koshewa, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect certain public records in your custody. The records in question were described as the KOSH files pertaining to Marine Electric Company - UPS.
In your letter of October 1, 1985, to Ms. Koshewa, you stated in part that the records requested contain the compliance officer's worknotes, which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h), and four 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 Ms. Koshewa. Copies of all other forms and documents in the file were made available.
Ms. Koshewa's letter of appeal to this Office maintains in part that you specifically erred in failing to furnish her with copies of the employee interview statements. She assumes that most of the interview statements were obtained from employees of United Parcel Service (UPS). She claims that the applicable statute does not exempt employee statements from inspection by Marine Electric Company if those statements were obtained from employees of firms other than Marine Electric Company.
In your absence from your office, the undersigned talked by telephone with Rose Ashcraft, Esq., of your legal staff on November 13, 1985. I was advised that the accident in question which occurred on July 31, 1985, at the UPS worksite involved personnel from both UPS and Marine Electric Company.
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 four 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, 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).
In connection with the four 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, owner, operator, agency, 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 85-128 and OAG 85-127, copies of which are enclosed.
This Office cannot agree with Ms. Koshewa's interpretation of KRS 338.101(1)(a) and (b). The exemption afforded by that statute is broader than she maintains. It is not limited to the prevention of inspection by the employer of the interview statements of his own employees. The statute precludes the public inspection of any employee interview statement obtained under the provisions of KRS 338.101. There is no selective inspection of employee interview statements. The confidentiality mandated by the statute cannot be maintained if other employers or other persons, generally, have access to such statements.
Furthermore, this Office has consistently concluded over the years that the Open Records Act does not permit a selective process of public inspection of public records. In OAG 80-641, copy enclosed, at page two, we said that all persons have the same standing to inspect public records. In OAG 82-394, copy enclosed, at page two, it was stated that inspection and copying of public records, with the exception of certain types of documents mentioned in KRS 61.878, should be permitted without regard to the person who is making the request or the purpose for which the person wants to inspect the records.
Thus, it is the opinion of the Attorney General that your denial of inspection of the compliance officer's worknotes and the four 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, Ms. Koshewa, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).