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
Ms. Arzella A. Cordle has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of her request to inspect and copy various records in the custody of the Kentucky Labor Cabinet.
In her letter to the Labor Cabinet, dated February 25, 1988, Ms. Cordle requested, under the Freedom of Information Act, that the Labor Cabinet make available to her a copy of a report of an investigation made concerning Square D Company and safety violations.
You replied to Ms. Cordle in a letter dated April 5, 1988. You advised her 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 preliminary worknotes which are exempt from inspection pursuant to KRS 61.878(1)(g) and (h).
The undersigned Assistant Attorney General talked with you by telephone on May 23, 1988. You advised that the investigation in question is at the present time the subject of an administrative proceeding. The company has contested the citation issued against it and the parties are attempting to reach a settlement. The tentative settlement has not yet been approved, however, by the Review Commission and the Labor Cabinet is unwilling to release any more information about the investigation prior to the approval of that settlement.
OPINION OF THE ATTORNEY GENERAL
While the Freedom of Information Act is federal legislation applicable to agencies of the Federal Government, the Kentucky Open Records Act (KRS 61.870 to KRS 61.884) applies to state and local agencies.
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 86-77, copy enclosed, this office referred to an earlier opinion, dealing with a case file in the possession of the State Police, in which we concluded that such a file was not open so long as the case is pending. That opinion 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)."
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 and OAG 88-31, copies 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 inspection.
Thus, since the administrative proceeding has not yet been concluded and the tentative settlement has not yet been approved, the Labor Cabinet may withhold, pursuant to KRS 61.878(1)(f), all documents and records pertaining to the investigation which is the subject of that administrative proceeding.
Among the additional public records which may be excluded from public inspection in the absence of a court order requiring inspection are those records described in KRS 61.878 (1)(g) and (h) as follows:
"(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 88-9, copy enclosed, we dealt with the occupational safety and health compliance officer's worknotes. Where those worknotes are compiled in the 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 may be excluded from public inspection under KRS 61.878(1)(h). Thus, worknotes 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 pursuant to KRS 61.878(1)(h). See also OAG 87-23, copy enclosed, at pages 4-6.
Therefore, the public agency's denial of a request to inspect the compliance officer's worknotes in connection with an occupational safety and health investigation is supported by those exceptions to public inspection set forth in KRS 61.878(1)(g) and (h).
As required by statute a copy of this opinion is being sent to the requesting party, Ms. Arzella A. Cordle, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.