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
James L. Gascoyne, 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 a letter to the Labor Cabinet's Office of General Counsel, dated November 9, 1988, Mr. Gascoyne requested that you furnish him with any documentation you have concerning the investigation involving the deaths of Jerry A. Thornhill and Jimmy Langston.
You replied to Mr. Gascoyne in a letter dated November 19, 1988. You advised him that all documents and records in the occupational safety and health investigative file concerning the matter in question would be made available except for the compliance officer's preliminary worknotes, which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h), and the four employee interview statements, which are exempt from public inspection under KRS 61.878(1)(j) and KRS 338.101(1)(a).
Mr. Gascoyne's letter of appeal to this office, dated January 6, 1989, maintains that he needs the records and documents requested in connection with his defense of a company in a civil lawsuit.
The undersigned Assistant Attorney General talked with you by telephone on January 20, 1989. You advised that the only worknotes withheld were the preliminary handwritten worknotes made at the job site. The worknotes which were compiled from these preliminary worknotes and which formed the basis of the citations issued have been made available for inspection.
The undersigned was advised by telephone by Labor Cabinet General Counsel Rex Hunt, Esq., on January 23, 1989, that the Labor Cabinet will now release all worknotes, including the preliminary worknotes made at the job site, except that any material related to or involving the four employee work statements will be deleted from those worknotes.
OPINION OF THE ATTORNEY GENERAL
Since the Labor Cabinet has now agreed to release all of the occupational safety and health compliance officer's worknotes, with the exception of that material related to the four employee interview statements, the only issue to be resolved, as far as this appeal is concerned, is the status of those employee interview statements.
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 and OAG 88-67, copies of which are enclosed.
It is, therefore, the opinion of the Attorney General that the Labor Cabinet's denial of the request to inspect the four employee interview statements was justified pursuant to KRS 61.878(1)(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 appealing party, James L. Gascoyne, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.