Request By:
Ms. Anne Leitsch
Paralegal
Kentucky Labor Cabinet
U.S. Highway 127 South
The 127 Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Douglas Miller, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect certain records in the custody of the Kentucky Labor Cabinet.
In his letter to the Labor Cabinet's General Counsel, dated March 7, 1987, Mr. Miller stated in part that he had been retained by Emma Sue Rarden, individually and as the administratrix of the estate of Ronald Alfred Rarden, relative to any claims arising from the death of Mrs. Rarden's husband, Ronald Alfred Rarden, on February 25, 1987, during his employment as a construction worker at the Toyota Motor Corporation Plant. Mr. Miller's letter contained the following request:
"I would like to obtain copies of any and all records which are subject to release including the investigation report, notes, memoranda, correspondence, witness statements, and anything else prepared or obtained by OSHA in this investigation . . . ."
You replied to Mr. Miller in a letter dated April 16, 1987. The request to inspect the occupational safety and health investigative file concerning Mr. Rarden was denied in part and in support of your decision you cited KRS 61.878(1)(f). You said the matter is in litigation and there are documents which will be made available after the litigation has been concluded.
Mr. Miller's letter of appeal states that he did receive copies of a couple of documents from the Labor Cabinet's OSHA file but was advised that the remainder of the file was unavailable because the case is in litigation. He has asked this office to review your decision and to make a determination that the contents of the file be released to him.
The undersigned Assistant Attorney General talked briefly with you by telephone on May 8, 1987. You advised that the parties are now waiting for the matter to be assigned by the Review Commission for a hearing before a hearing officer.
OPINION OF THE ATTORNEY GENERAL
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)(f):
"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
In OAG 87-2, copy enclosed, we cited with approval an earlier opinion where this office dealt with a request to examine a case file in the possession of the State Police. In that earlier opinion (OAG 83-366) we concluded that such a case file is not subject to public inspection as long as the case is pending and said in part:
". . . Since you indicate that these are still active files, they are therefore not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)(f) provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which will reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-424; KRS 17.150(2)."
Your attention is also directed to OAG 83-425, copy enclosed, at page two where this office said:
"Complaints and investigatory material of pending administrative or law enforcement adjudications are exempt from public inspection pursuant to KRS 61.878(1)(f). Additionally, KRS 61.878(1)(g) and (h) will exempt 'preliminary drafts, notes, correspondence with private individuals' and 'preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.' However, any of these documents incorporated into the final report will be open to public inspection. "
Numerous other opinions of this office have concluded that investigative files and reports maintained by public agencies are not subject to public inspection until after the administrative action or prosecution is completed or a determination not to proceed administratively or judicially has been made. See, for example, OAG 87-26, OAG 87-15 and OAG 87-23, copies of which are enclosed.
While the exemption from public inspection set forth in KRS 61.878(1)(f) will apply until the administrative or judicial action has been completed or until it has been decided to take no such action, the documents in question would be subject to public inspection upon completion of the administrative or judicial action or the making of the decision not to take such action, unless the documents may be exempted from inspection pursuant to another statutorily recognized exception to public inspection.
It is, therefore, the opinion of the Attorney General that your partial denial of the request to inspect and copy documents in the agency's investigative file was proper at this time under KRS 61.878(1)(f) as the matter under investigation is to be assigned for a hearing by the Review Commission and thus the administrative proceedings have not been completed.
As required by statute a copy of this opinion is being sent to the requesting party, Douglas Miller, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).