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
Mr. Dennis Devore has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect certain public records in your custody.
In a letter to the Kentucky Labor Cabinet, dated January 12, 1987, Mr. Devore said his organization is the service agency of Workers' Compensation benefits for the AIK Selective Self-Insurance Fund of which Rapid Industries is a qualified member. He requested a copy of the Labor Cabinet's investigation of the Larry Coomer accident on November 14, 1986.
You replied to Mr. Devore in a letter dated January 13, 1987. You advised him that all documents and forms in the occupational safety and health investigative file with respect to Rapid Industries, Inc. would be made available except for the compliance officer's worknotes, which are exempt from release pursuant to KRS 61.878(1)(g) and (h), and two employee interview statements which are exempt from release pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(j).
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 two employee interview statements.
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(g) and (h):
"(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, 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). See also OAG 86-37, copy of which is enclosed.
In connection with the 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, 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 86-57 and OAG 86-37, copies of which are enclosed.
It is, therefore, the opinion of the Attorney General that your denial of the request to inspect and copy 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, Mr. Dennis Devore, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) .