Request By:
Ms. Anne Leitsch
Paralegal
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
John L. Barton, 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 Kentucky Labor Cabinet, dated September 14, 1987, Mr. Barton made the following request relative to Terry Puckett and Mineral Labs, Inc. and Wal-Lyn, Inc.,: "Please send a transcript of hearings, citations and any documents, memoranda, or reports you can."
You replied to Mr. Barton in a letter dated September 21, 1987. You advised him that all documents and forms in the occupational safety and health investigative files with respect to Mineral Labs, Inc., and Wal Lyn, Inc., would be made available except for the compliance officer's worknotes, which are exempt from inspection pursuant to KRS 61.878(1)(g) and (h), and the twelve employee interview statements which are also exempt from public inspection under the Open Records Act.
In his letter of appeal to this office Mr. Barton states that he represents Terry Puckett who was injured in the incident which the Occupational Safety and Health Division investigated. He maintains that he needs the materials you withheld in connection with a civil lawsuit in federal court.
The undersigned Assistant Attorney General talked with you by telephone on October 1, 1987, and you said that the Labor Cabinet does have a copy of a hearing transcript concerning the investigation in question. You advised that the transcript will be made available to Mr. Barton during normal business hours Monday through Friday at your office.
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)(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 87-43, 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 87-25, a 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 87-9, a copy of which is enclosed.
Apparently the copy of the transcript in your possession is a rather lengthy document. In OAG 86-24, copy enclosed, we dealt with KRS 61.874(1) relative to the inspection of public records and the obtaining of copies of those records. At page five of that opinion we said that the Open Records Act does not require a public agency to send copies of records by mail to a person who has not first inspected those records. The public agency, therefore, has a certain amount of leeway in the handling of requests for records by mail and mailing copies of records to persons who have not first inspected those records and selected the documents they want copied.
This office has stated that a public agency should accommodate requestors whenever it can within the bounds of the efficient operation of the office. Generally, when only one item is requested and it is not lengthy or when a few precisely described items are requested which are readily available without any special search, it may be more convenient to the requesting party and the public agency to simply supply the material through the mail. However, when the document requested is lengthy, the public agency may, pursuant to KRS 61.874(1), require the requesting party or his representative to inspect the document before a copy is made.
Thus, in conclusion, it is the opinion of the Attorney General that your denial of the request to inspect and copy the occupational safety and health compliance officer's worknotes and the twelve employee interview statements was proper under KRS 61.878(1)(g), (h) and (j) of the Open Records Act and KRS 338.101(1)(a). Furthermore, the public agency is not mandatorily required to furnish copies of records to a requesting party by mail when the requesting party has not first inspected those records and then selected the items he wants copied, particularly when numerous or lengthy records and documents are involved.
As required by statute a copy of this opinion is being sent to the appealing party, John L. Barton, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).