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
Mark A. Osbourn, 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, dated November 12, 1987, Mr. Osbourn requested that you make available "the releasable forms and documents" from the occupational safety and health investigative files concerning the involvement of the Radcliff Volunteer Fire Department, F & W Operations and Andriott-Davidson, Inc., in regard to an accident on July 5, 1985, affecting employees of Hardin County Water District Number One.
You replied to Mr. Osbourn in a letter dated November 16, 1987. You advised him that all documents and forms in the occupational safety and health investigative files with respect to the organizations and firms in question 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 two employee interview statements which are exempt from inspection pursuant to KRS 61.878(1)(j) and KRS 338.101(1)(a).
In his letter of appeal to this office, Mr. Osbourn states that he is representing Hardin County Water District Number One in connection with the accident of July 5, 1985. He maintains that he needs the records and documents you withheld in order that he may complete his investigation of the matter and prepare for the upcoming trial.
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 87-9, 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 two 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 an order of a court of competent jurisdiction. See OAG 87-68, a copy of which is enclosed.
It is, therefore, the opinion of the Attorney General that your denial of inspection of the compliance officer's worknotes and the two 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).
As required by statute, a copy of this opinion is being sent to the requesting party, Mark A. Osbourn, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).