Request By:
Joni T. Page, Esq.
Assistant 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
Tamara T. Cotton has appealed to the Attorney General your denial of her request to inspect all material contained in the occupational safety and health investigative file with respect to Paramount Foods, Inc. She "requests the Attorney General review the decision of the Department of Labor dated January 22, 1985 wherein records requested concerning Paramount Foods, Inc. were denied." She states it is her understanding that a settlement agreement has been reached relative to OSHA charges filed against Paramount Foods, Inc. concerning incidents occurring on or about June 1984.
In your letter of January 22, 1985 you advised Ms. Cotton that you were enclosing all official documents and forms from the file in question with the exception of the compliance officer's worknotes, which are exempt from release by KRS 61.878(1)(g) and (h), and the ten employee interview statements, which are exempt from release by KRS 338.101(1)(a) and KRS 61.878(1)(j). You also cited OAG 83-140 and OAG 83-335 in support of your determination.
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 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). See also OAG 84-361, copy enclosed.
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 employers, 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 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 83-140, copies of which are enclosed.
Even if a settlement has been reached relative to the OSHA charges, the material which was excluded from public inspection pursuant to KRS 61.878(1)(g), (h) and (j) and KRS 338.101(1)(a) may still be excluded in the absence of a court order to the contrary. The status of this material as preliminary matters and confidential interviews will not change regardless of what happens relative to any charges which might have been filed.
Thus, it is the opinion of the Attorney General that your denial of inspection of the compliance officer's worknotes and the 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 who has the right to challenge it in court pursuant to KRS 61.880(5).