Request By:
Rex Hunt, 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
Linsey W. West, Esq., has filed an appeal with the Attorney General under the Open Records Act. He received a letter from Betty A. Springate, Esq., former General Counsel of the Kentucky Labor Cabinet, dated July 21, 1986. Since Ms. Springate has left the Labor Cabinet and you are now serving as the General Counsel this opinion is directed to you.
In a letter to Ms. Springate, dated July 14, 1986, Mr. West requested information relative to an investigation by the Labor Cabinet involving the Louisville-Jefferson County Metropolitan Sewer District. He was specifically concerned with two employee interview statements pertaining to that accident investigation and he wanted the names of the employees and copies of the interview statements.
Ms. Springate, in a letter to Mr. West dated July 21, 1986, stated in part that the Labor Cabinet questioned the two employees pursuant to KRS 338.101(1)(a) and these persons specifically requested that their statements not be released. She further said that the Cabinet would not subsequently release the statements even if Mr. West submitted depositions or other statements from these persons relative to the releasability of their statements. She concluded by stating that the Cabinet was refusing Mr. West's request to inspect the two employee witness statements.
In his letter of appeal to this office Mr. West asked that we review Ms. Springate's decision not to release the two employee interview statements. "Specifically, I would like for you to review the Labor Cabinet's position that the statements of employees who had previously requested that their statements remain confidential may not now be released if those employees give consent to such release, under oath, during depositions. "
Mr. West further asked this office to review the Cabinet's decision with the knowledge that his client's position is that there is a substantial need for the information and no other source for obtaining that kind of testimony. He also asks that this office advise whether the statutory procedure relative to appealing our decision is the exclusive method for obtaining withheld material or whether the Labor Cabinet would be subject to a subpoena or court order for production from the United States District Court.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) sets forth the role of the Attorney General relative to matters arising under the Open Records Act. That statute provides in part that, if requested by the person seeking inspection, the Attorney General shall review the denial and issue a written opinion to the agency involved stating whether the agency acted pursuant to the provisions and terms of the Open Records Act.
The denial in this case concerned the Labor Cabinet's refusal to permit the requesting party to inspect and copy two employee interview statements obtained in connection with an occupational safety and health investigation of a fatality at the Louisville-Jefferson County Metropolitan Sewer District's maintenance shop. See OAG 86-14, copy enclosed, for some additional background information relative to this matter.
This office has consistently held that the Labor Cabinet's denial of requests to inspect employee interview statements is justifiable under KRS 61.878(1)(j) of the Open Records Act and KRS 338.101(1)(a). Rather than repeat what has been previously written we refer you to OAG 86-14 and OAG 86-27, copies of which are enclosed. In addition, in OAG 86-3, copy enclosed, we concluded that the Labor Cabinet need not furnish the names of the employees from whom it obtained statements pursuant to KRS 338.101(1)(a).
Thus, in this particular case, it is the opinion of the Attorney General that the Labor Cabinet's refusal to permit the requesting party to inspect and copy two employee interview statements obtained in connection with an occupational safety and health investigation of a fatal accident at a work site was proper under KRS 338.101(1)(a) and KRS 61.878(1)(j).
While the Labor Cabinet's letter of July 21, 1986, did state in part that the two employee interview statements would not be released even if Mr. West subsequently produced some kind of release forms or authorization of the employees to release, that matter is not subject to consideration on an appeal. The question was never actually presented for a decision to the Cabinet as the requesting party does not know the names of the two employees and has not obtained and presented to the Cabinet any release forms from those two employees.
The duty of this office is to deal with an actual denial of a specific request by a public agency. It is not our function, relative to appeals, under the Open Records Act, to deal with hypothetical or abstract questions or situations. An appeal of a situation which has not yet come to pass is premature and thus the question of how to handle release forms of the two employees if they are subsequently obtained and presented is premature.
However, if a reviewing court deems that the presentation of such an issue at this time is not premature, then it is the opinion of this office that the matter is beyond the scope of an opinion issued under the Open Records Act. This office is only required to determine if a public agency acted properly in withholding a particular document. We have concluded in this case that the documents in question were properly withheld. While the requesting party may have available to him other courses of action, the Open Records Act will not require the Cabinet to subsequently release that which KRS 338.101(1)(a) and KRS 61.878(1)(j) have authorized it to withhold. From the standpoint of the Open Records Act, the Cabinet has properly utilized an applicable exception to public inspection and having made the choice not to release these particular documents, the Cabinet cannot be required through the application of the Open Records Act as it now exists to subsequently make them available.
As required by statute, a copy of this opinion is being sent to the requesting party, Linsey W. West, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5). It is neither the duty nor the function of this office, within the context of an opinion under the Open Records Act, to advise the requesting party as to other possible sources of relief which might be available to him.