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 denial of the open records request of Brian W. Hodge, attorney, on behalf of the Jefferson County Fire Protection District, for a copy of the investigative file, including the complaint filed with the Cabinet, concerning an inspection of the fire protection district.
Kembra Sexton Taylor, General Counsel, responding on behalf of the Cabinet, denied Mr. Hodge's request, stating:
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, complaints and any information that could identify employees contacted has been removed pursuant to KRS 337.345.
Due to the fact that you specifically requested all documents from the file and due to the fact that the preliminary worknotes and complaint are exempt from release, this must be considered a technical refusal of a portion of your request.
Mr. Hodge appealed the Cabinet's denial of his request to this office. He argues that the agency's response and the single document provided him did not indicate the final action taken by the Cabinet and his client wanted a copy of the anonymous complaint in order to determine the specific complaints made and whether all complaints were addressed by the investigation.
As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Taylor provided this office with a response to the issues raised in Mr. Hodge's letter. In her response, Ms. Taylor states:
The Kentucky Labor Cabinet enforces the provisions of KRS 336, 337, and 338. Violations of those statutes, and the regulations promulgated pursuant to those statutes, are cited through the issuance of violations or citations. Mr. Hodge's appeal indicates an assumption that a final determination by the Labor Cabinet is to be manifested in an affirmative fashion whether a violation is found or not. However, that is not the case. Where no violations of the statutes or regulations are found, the Labor Cabinet has no mechanism for certifying that an employer is in compliance. An analogy would be that police officers do not issue certifications of compliance to vehicle operators who are not found to be violating traffic laws. The form provided Mr. Hodge is an ES-1 and is entitled the "Report of Investigation." The ES-1, copy enclosed, has sections to indicate violation information. As no violation was issued, those sections are blank.
Mr. Hodge's appeal also asserts that since the complaint was anonymous, that the complainant(s) cannot be identified from the complaint and the Labor Cabinet should therefore release the complaint. The complaint, though anonymous, has sufficient indications of identity that release of the complaint could identify the individual(s) who made the complaint. The public policy reasons for withholding the identity of complainants holds true where the complainant(s) may be sufficiently identified by release of anonymous complaints. The investigator did explain the nature of the complaint to the employer's representative, Chief Paul Barth, to the best extent possible without compromising the identity of the complainant(s).
The issue on appeal is whether the Cabinet's denial was consistent with the Open Records Act. For the reasons that follow, we conclude the Cabinet properly withheld disclosure of the complaint under the authority of KRS 337.345 and KRS 61.878(1)(j) and (1).
In OAG 92-90, at p. 2, this office stated:
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 contained 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) [now codified as KRS 61.878(1)(i)]. Moreover, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)(h) [now codified as KRS 61.878(1)(j)]. 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)(i) and (j)].
Citations omitted.
Although the exceptions to the Open Records Act do not prevent agencies from choosing to release records in their custody, the decision to release otherwise exempt records rests with the agency and not with the Attorney General. 92-ORD-1233. It is for the Labor Cabinet to exercise its discretion in deciding whether to release all of the information in its files or to withhold some of the information under one of the exceptions. Accordingly, the Cabinet's denial of access to preliminary worknotes in the investigative file was consistent with the Open Records Act and prior opinions of this office.
KRS 337.345 provides:
Except as otherwise provided in this section, the department 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, Department of Labor.
KRS 61.878(1)(l) excludes from the application of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
This exception to the Open Records Act incorporates KRS 337.345, relating to the confidentiality of information of Cabinet records.
Thus, 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, we conclude the Cabinet did not violate the Open Records Act in denying Mr. Hodge's request for a copy of the complaint filed with the Cabinet.
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.