Request By:
Rose Ashcraft, Esq.
Assistant Council
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
Tony C. Coleman, Esq., has appealed to the Attorney General pursuant to KRS 61.880 the denial by the Labor Cabinet of his request to obtain certain public records in your custody. The letter of denial to Mr. Coleman was written by Joni Tackett Page, Esq. who apparently is no longer with the Labor Cabinet. Thus, the opinion of this Office is directed to you in your capacity as an attorney for the Labor Cabinet.
Mr. Coleman had previously appealed the denial of his request to inspect various records pertaining to an accident involving United Parcel Service, Inc. and Marine Electric Company, Inc. to this Office. This Office upheld the Labor Cabinet's denial of the request to inspect the compliance officer's worknotes and the four employee interview statements, relying upon the provisions of KRS 61.878(1)(g), (h) and (j) and KRS 338.101(1)(a). We did not address at that time the issue of whether Mr. Coleman is entitled to obtain the names of the employees who gave statements to the Labor Cabinet as that question has not been addressed to the Labor Cabinet. See OAG 85-146, copy enclosed.
Mr. Coleman's subsequent request to the Labor Cabinet to inspect records did involve the matter of the availability of the names of the persons who gave statements to the Labor Cabinet's compliance officer. Ms. Page's letter to Mr. Coleman, dated December 10, 1985, stated in part as follows:
"The office considers the release of the names of persons from whom employee interview statements were obtained to be in direct opposition to the intent of KRS 338.101(1)(a). These names are not considered releasable under the provisions of the Kentucky Open Records Act, therefore your request is denied."
Mr. Coleman's letter of appeal to this Office maintains that he is entitled to obtain from the Labor Cabinet the names of the employees from whom statements were obtained by the Labor Cabinet.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878(1)(j) provides that among the public records excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884), except upon an order of a court of competent jurisdiction, are public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assembly.
KRS 338.101(1)(a) is an enactment of the General Assembly and it provides as follows:
"In order to carry out the purposes of this chapter, the commissioner, or his authorized representative shall have the authority:
"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 employer, owner, operator, agent, employe or employe'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."
This Office has stated that the term "question privately" makes any statement taken from an employee or other person authorized to be questioned by the statute confidential and exempt from mandatory public disclosure under KRS 61.878(1)(j). The purpose in part of a provision such as that found in KRS 338.101(1)(a) is to promote confidentiality. The employee or other person questioned or interviewed by the Labor Cabinet can answer or make statements without fear of retribution.
The possibility of any potential retribution is significantly reduced if the confidentiality of the employee's statements is preserved and it is lessened further if the identity of the employee making the statement is kept confidential. The more that is learned or can be learned about the employee and what he has said the greater the possibility of something being said or done to him and the less likely he is to respond with candor, honesty and completeness to the questions asked. Since the Labor Cabinet is entitled to question employees pursuant to KRS 338.101(1)(a), that questioning should be done with as much protection to the employees as possible.
Therefore, it is the opinion of the Attorney General that the Labor Cabinet's denial of the request to furnish the names of the employees from whom the Labor Cabinet obtained statements pursuant to KRS 338.101(1)(a) was proper under KRS 61.878(1)(j) of the Open Records Act and KRS 338.101(1)(a).
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. Coleman, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).