Request By:
Ms. Anne Leitsch
Paralegal
Kentucky Labor Cabinet
U.S. Highway 127 South
The 127 Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Robert L. Miller has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy various records in the custody of the Kentucky Labor Cabinet.
In his letter to the Labor Cabinet, dated January 10, 1989, Mr. Miller requested that he be provided with a copy of your agency's report concerning an incident on November 2, 1988, at the Armco Steel Plant in Ashland, Kentucky.
You replied to Mr. Miller in a letter dated January 16, 1989. You advised him that the material requested is not releasable at this time because the file is under submission by the compliance officer and is not completed as of this date. KRS 61.878(1)(f) was cited in support of your position to not release the records and documents in question.
The undersigned Assistant Attorney General talked with you by telephone on February 3, 1989. You advised that on January 25, 1989 the Labor Cabinet issued a citation relative to the industrial accident with which you are concerned. The period of time during which the issuance of the citation may be challenged expires February 15, 1989. If the citation is challenged an administrative hearing will be scheduled. (See KRS 338.071(4). If no challenge is filed the matter will be considered closed and the file will be subject to public 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)(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 87-29, 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."
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 88-36, copy 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 the Labor Cabinet may at this time withhold, pursuant to KRS 61.878(1)(f), all documents and records pertaining to the investigation which is the subject of that administration proceeding. The requesting party should contact the Labor Cabinet after February 15, 1989 to determine if the citation has been challenged and if the matter has been scheduled for a hearing pursuant to KRS 338.071(4).
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Robert L. Miller, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.