Request By:
Ms. Anne Leitsch
Paralegal
Office of General Counsel
Labor Cabinet
U.S. 127 Building, South
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of July 24, 1989, Jo Ann Alexander, of Brown, Todd & Heyburn, Lexington, Kentucky, has appealed your partial denial, by letter of July 11, 1989, of the July 10, 1989 request of John W. Hays, Esq., for a copy of the Occupational Safety and Health investigation report and records regarding the injury of John Smith, on December 9, 1985, possibly at the W.T. congleton Company Concrete Plant, 613 Laco Drive, Lexington, Kentucky.
FINDINGS IN BRIEF
The Labor Cabinet acted consistent with KRS 61.870 to 61.884, by promptly responding in writing to a request to inspect records regarding an occupational injury investigation, citing specific statutory exceptions consistent with Open Records provisions, giving a brief explanation of how such exceptions applied to records withheld, and indicating it would forward copies of releasable records upon receipt of payment for copies.
FACTUAL BACKGROUND
By letter of July 10, 1989, to Rex Hunt, General Counsel of the Labor Cabinet, Mr. John W. Hays asked that, under the Kentucky Open Records Act, he be provided a copy of the Occupational Safety and Health investigation report and records regarding injury of John Smith on December 9, 1985, apparently at the W.T. Congleton Company Concrete Plant, 613 Laco Drive, Lexington, Kentucky.
By letter of July 11, 1989, you responded to Mr. Hays request by stating:
The file you requested contains the compliance officer's preliminary worknotes which are exempt from release by KRS 61.878(1)(g) and (h). These preliminary worknotes are the rough worknotes usually taken on the jobsite. All remaining worknotes will be released to you. The file also contains one (1) emloyee interview statement, which is exempt from release by KRS 338.101(1) and 61.878(1)(j). These preliminary worknotes and employee statement are not releasable under the provisions of the Kentucky Open Records Act. (See OAG 87-68).
All other documents and forms from the file are releasable. . . . . As soon as payment [for copies] is received, the copies will be forwarded to you immediately.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General (KRS 61.880(2)).
In the instant case your agency timely responded in writing to a request to inspect the agency's records.
You cited (factual background, supra) specific exceptions consistent with open records provisions as a basis for denying inspection of certain records, provided a brief explanation of how the exceptions cited applied to the records withheld, indicated copies of releasable records would be promptly forwarded upon payment of copy charges, and forwarded a copy of your response to the Attorney General.
Such action appears fully consistent with provisions of KRS 61.870 to 61.884. The exceptions cited appear proper in view of the description of records contained in the Cabinet's explanation of the application of the exceptions to the records withheld.
Mr. John W. Hays may have a right pursuant to KRS 61.880(5) to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Ms. Jo Ann Alexander who requested it.