Request By:
Ms. Anne Leitsch
Paralegal
Kentucky Labor Cabinet
The 127 Building
U.S. Highway 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Menis E. Ketchum, 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 January 20, 1988, Mr. Ketchum requested, under the Freedom of Information Act, that you furnish him with a copy of a report, investigation and pertinent data concerning a gasline explosion in Martin County, Kentucky, on October 27, 1987. The pipeline in question was the property of Columbia Gas Transmission Company and at the time of the accident it was being worked on by L.A. Pipeline Construction Company. He concluded his letter by asking for "all permissible information regarding this investigation under the Freedom of Information Act. "
You replied to Mr. Ketchum in a letter dated January 26, 1988. You advised him that all documents and records in the occupational safety and health investigative file concerning the incident 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 three employee interview statements, which are exempt from inspection under KRS 61.878(1)(j) and KRS 338.101(1)(a).
In his letter of appeal to this office, received February 1, 1988, Mr. Ketchum requested this office to review your decision relative to your refusal to furnish him the three employee interview statements and the compliance officers preliminary worknotes.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that you acted in conformity with the Kentucky 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 perliminary worknotes and the three employee interview statements. While the Freedom of Information Act is federal legislation applicable to agencies of the federal government, the Kentucky Open Records Act applies to those state and local agencies and officials defined in KRS 61.870(1).
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 87-79, 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 can be 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 can be exempt from public inspection by KRS 61.878(1)(h). See also OAG 87-9, copy of which is enclosed.
In connection with the three 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 the request to inspect the compliance officer's worknotes and the three employee interview statements was justified under the Open Records Law pursuant to 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, Menis E. Ketchum, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.