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 response to Daniel J. Gerritzen's open records request for copies of:
any and all documents, including, but not limited to, witness statements which were taken by Willamette Industry, Inc. representatives and subsequently turned over to Kentucky OSHA with respect to the OSHA investigation of the death of Danny Lee Smith on September 5, 1996.
Margaret Goodlett Miles, Paralegal, responding on behalf of the Cabinet, partially denied Mr. Gerritzen's request, stating in part:
Information from the file is releasable and enclosed with the exception of 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 any information identifying employees contacted and/or interview statements has been removed pursuant to KRS 338.101(1)(a).
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.
Ms. Miles advised that the Cabinet was making available forty-one (41) microfiche copies upon receipt of payment for the copies.
In his letter of appeal, Mr. Gerritzen asked this office to review the Cabinet's decision not to release the preliminary work notes and employee information. He was specifically concerned with statements which were allegedly taken by Willamette Industry, Inc. representatives and subsequently turned over to Kentucky OSHA
After receipt of Mr. Gerritzen's letter, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of the letter to the Cabinet. On behalf of the Cabinet, Ms. Miles provided Mr. Gerritzen and this office with a response to the issues raised in the appeal. In her response, Ms. Miles stated:
In response to your open records appeal, the above-referenced file was reviewed. The file contains no interview statements from any party. If the file had contained statements taken by the Compliance Officer during the course of the investigation, the statements would have been exempted from release pursuant to KRS 338.101(1)(a). However, if the file had contained statements taken from an outside source, they would have been released.
We are asked to determine whether the partial denial of Mr. Gerritzen's request was consistent with the Open Records Act.
It is the decision of this office that the Cabinet properly relied upon KRS 61.878(1)(j) and KRS 338.101(1)(a) in partially denying Mr. Gerritzen's request for access to documents consisting of preliminary work notes and employee information. We believe that OAG 92-90, and the authorities cited therein, is controlling on the issue of preliminary work notes, and that 92-ORD-1441, and the authorities cited therein, is controlling on the issue of employee statements. Copies of these opinions are attached hereto and incorporated by reference. We find no error in the Cabinet's partial denial of Mr. Gerritzen's request.
As to the request for statements which were allegedly taken by Willamette Industry, Inc. representatives and subsequently turned over to Kentucky OSHA, the Cabinet stated that investigative file contained no interview statements from any party. This office has consistently recognized that an agency cannot provide copies of records it does not have or which do not exist. Accordingly, this portion of the Cabinet's response was consistent with the Open Records Act.
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.