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
Mrs. Robert D. Garver 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 documents in question are described as the complete Occupational Safety and Health investigative file relative to a fatal accident involving Mr. Robert D. Garver, including the statement of a person who witnessed the accident.
In a letter addressed to the undersigned Assistant Attorney General and dated May 29, 1986, you stated that Mrs. Garver visited your office on May 19, 1986, for the purpose of obtaining a copy of the Occupational Safety and Health Investigative file pertaining to a fatal accident involving Mr. Robert D. Garver. All documents in the file were made available except for a twelve page autopsy report, four pages of worknotes and one employee interview statement.
You stated that the compliance officer's worknotes are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). The employee interview statement is exempt from public inspection pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(j). You further said that the autopsy report is releasable and was omitted through error. That particular document was sent to Mrs. Garver on May 29, 1986.
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 one employee interview statement.
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 86-27, 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, 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 under KRS 61.878(1)(h).
In connection with the employee interview statement, 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 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 86-14, copy of which is enclosed.
Thus, it is the opinion of the Attorney General that your denial of inspection of the compliance officer's worknotes and the employee interview statement 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, Mrs. Robert D. Garver, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).