Request By:
Ms. Margaret E. Goodlett
Paralegal
Kentucky Labor Cabinet
1049 U.S. 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. David D. Moshier 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. Those records are identified as the occupational safety and health investigative file relating to Blue Beacon International, Inc.
You partially denied Mr. Moshier's request in a letter dated April 29, 1992. Relying on KRS 61.878(1)(g) and (h), you explained that the file contains the compliance officer's preliminary work notes taken on the job site, and that these work notes are not releasable under the cited provisions of the Act. In addition, you stated that he had requested copies of OSHA forms that were not a part of the file. You did, however, indicate your willingness to release all other documents and forms in the file upon receipt of payment for photocopying costs.
In his letter of appeal to this Office, Mr. Moshier states that he believes these work notes will more clearly represent what was actually observed on the premises. Continuing, he observes:
Since we will be involved in a hearing with the Secretary of Labor, and they will have those notes available to them for review and preparation, it only seems fair and equitable that those be made available to a respondent in order to assist in preparing an appropriate defense to the Complaint.
He asks that we review your partial denial of his request to determine if the Cabinet acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Moshier's request.
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) as:
(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;
It is well settled that an occupational safety and health compliance officer's work notes which are compiled in the ordinary course of an investigation of an employer work site, and which contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, are exempt from public disclosure pursuant to KRS 61.878(1)(g). Moreover, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)(h). Thus, work notes containing a compliance officer's observations, opinions and preliminary drafts of possible citations may be withheld pursuant to KRS 61.878(1)(g) and (h). OAG 84-224; OAG 84-275; OAG 85-46; OAG 85-58; OAG 85-123; OAG 85-125; OAG 85-127; OAG 85-128; OAG 85-129; OAG 85-137; OAG 85-142; OAG 86-14; OAG 86-27; OAG 86-37; OAG 86-57; OAG 87-9; OAG 87-25; OAG 87-68; OAG 87-79; OAG 88-9; OAG 88-36; OAG 88-67; OAG 89-64.
In a conversation with the undersigned which took place on May 21, 1992, you explained that a compliance officer's preliminary work notes consist of the initial observations and impressions formed by the officer while he or she is in the field. The officer later revises the notes, and reduces them to final form. You indicate that Mr. Moshier was furnished with a copy of these revised notes.
It is the opinion of this Office that your actions were fully consistent with the Open Records Act. You properly denied Mr. Moshier's request for the occupational safety and health compliance officer's work notes pursuant to KRS 61.878(1)(g) and (h).
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. David D. Moshier. Mr. Moshier may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).