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
John F. Zink, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of the requests of his office to inspect certain records in the custody of the Kentucky Labor Cabinet.
In a letter to the Labor Cabinet's General Counsel, dated August 10, 1988, Mr. Jimmy L. Fogle requested that you furnish him with any investigative reports and any other reports concerning the death of Arnold R. Mason. In a letter to the Labor Cabinet's General Counsel, dated August 23, 1988, Mr. Fogle requested that you furnish him with a copy of the complete file concerning the death of Robert C. Lopp who died while working for the Wehr Construction Company.
You replied to Mr. Fogle in two separate letters, both of which are dated August 29, 1988. In regard to the request pertaining to Arnold R. Mason, you advised Mr. Fogle that all documents and records in the occupational safety and health investigative file concerning Mr. Mason 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 four employee interview statements which are exempt from inspection under KRS 61.878(1)(j) and KRS 338.101(1)(a). As to the request involving Robert C. Lopp, an employee of Wehr Construction Company, you advised that all documents and records in the occupational safety and health investigative file concerning Mr. Lopp's accident 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).
Mr. Zink's letters of appeal have requested this office to review your letters relative to Mr. Mason and Mr. Lopp and to allow his office to review your entire files.
The undersigned Assistant Attorney General talked with you by telephone on September 20, 1988. You advised that the only worknotes withheld were the preliminary hand written worknotes made at the job site. The worknotes which were complied from these preliminary worknotes and which formed the basis of the citations issued have been made available for inspection.
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 87-79, 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 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 87-68, a copy of which is enclosed.
In connection with the four 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 88-9, a copy of which is enclosed.
It is, therefore, the opinion of the Attorney General that the public agency's denial of the request to inspect the compliance officer's preliminary hand written worknotes and the four employee interview statements was justified under the Open Records Act, pursuant to KRS 61.878(1)(g), (h) and (j), and KRS 338.101(1)(a).
As required by statute, a copy of this opinion is being mailed to the appealing party, John F. Zink, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.