Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky Labor Cabinet's partial denial of a September 2, 1997 open records request by Charles T. Bates to inspect and receive any and all copies of the Cabinet's Division of Employment Standards, Apprenticeship & Training investigative file.
Lori Barker Sullivan, Esq., Deputy General Counsel, on September 10, 1997, responding on behalf of the Cabinet, informed Mr. Bates that a portion of his request to see the entire investigative file was being partially denied. In her response, Ms. Sullivan stated:
The file contains preliminary worknotes, the release of which is exempted pursuant to KRS 61.878 (1) (j), to wit: preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Also the complaint and any information identifying employees contacted has been removed pursuant to KRS 337.345.
In denying Mr. Bates's request for the file in its entirety, Ms. Sullivan explained:
Due to the fact that you specifically requested the entire file and due to the fact that the preliminary worknotes and employee information are exempt from release, this must be considered a technical refusal of a portion of your request.
Along with her response, Ms. Sullivan provided Mr. Bates with a copy of the Cabinet's "Report of Investigation," dated March 21, 1997, which indicates that the result of the investigation in question was that no violation was issued.
In his letter of appeal, Mr. Bates asks this office to determine whether the partial denial of his request was consistent with provisions of the Open Records Act.
From the facts presented, the investigation was concluded with no violation issued. None of the preliminary worknotes were referred to or incorporated into the final agency action. Thus, they are exempt from disclosure under KRS 61.878(1)(j). 96-ORD-66; 95-ORD-100, copies enclosed.
KRS 337.345 provides:
Except as otherwise provided in this section, the cabinet shall not disclose the identity of any individual filing a complaint or request for inspection under any section of this chapter, except as necessary to enforce, and then only with the specific written permission of the complainant. Except as otherwise provided in this section, information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer's premises by the commissioner or his authorized representatives, shall be held confidential and shall not be disclosed or be open to any person except such information may be made available to:
(1) Officials concerned with, and for the purposes of administration of the laws relating to matters under the jurisdiction of the commissioner.
(2) Any agency of this or any other state, or any federal agency for the purpose of enforcing KRS 337.275 to 337.325, 337.345, and 337.385 to 337.405;
(3) To the Wage and Hour and Public Contracts Division of the United States, Labor Cabinet.
This statute is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which authorizes the nonrelease of "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
Pursuant to KRS 337.345, the Cabinet is prohibited from releasing the complaint and any information identifying employees contacted by the Cabinet in its investigation concerning the workplace violation. 95-ORD-56, copy enclosed.
Accordingly, it is the decision of this office that the Kentucky Labor Cabinet properly relied upon KRS 61.878(1)(j) in partially denying Mr. Bates's requests for access to documents consisting of preliminary worknotes, which were not incorporated into final agency action and KRS 337.345 in denying access to the complaint and information identifying employees contacted by the Cabinet concerning the workplace violation.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.