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 the open records request of Harlin D. Scott, for a copy of "all records in connection with the actual investigation performed on the Webster County Raw Water Intake Structure/Peters Contracting and Doug Brantley and Sons as well."
Kembra Sexton Taylor, General Counsel, responding on behalf of the Cabinet, provided Mr. Harlin with releasable information from the file, but denied his request for a copy of the entire investigative file, 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, any other complaints, correspondence and any information obtained from the employer 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 employer information are exempt from release, this must be considered a technical refusal of a portion of your request.
In his letter of appeal, Mr. Scott asked this office to review the Cabinet's denial of his request and argues that the requested records do not fall under those records which are exempt from disclosure under KRS 61.878(1)(j) and KRS 337.345.
After receipt of Mr. Scott's letter, and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Gordon R. Slone, Deputy General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raise in the appeal. In his response, Mr. Slone explained:
The Kentucky Labor Cabinet enforces the provisions of KRS 336, 337, and 338. Complaints pursuant to KRS Chapter 337 are investigated by the Division of Employment Standards, Apprenticeship, and Training. The investigators collect documentary evidence, interview complainants, employees, employers and other potential witnesses. The evidence is collected with the understanding that the complainant's identity will not be disclosed and that information secured from the inspection will not be released for purposes other than the enforcement of laws under the jurisdiction of the Commissioner of Workplace Standards. The release of this information is prohibited by KRS 337.345.
. . .
Thus the Labor Cabinet is statutorily prohibited from releasing the identity of the complainant and from releasing information obtained from the employer except to enforce those laws for which the Cabinet has jurisdiction. KRS 61.878(1)(l) exempts from release "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 61.878(1)(l), the information withheld by the Kentucky Labor Cabinet is restricted from release under the Open Records Act.
The Attorney General's Office has dealt with the confidentiality of wage and hour investigations several times in the past. Support for the Labor Cabinet's position may be found in OAG 95-ORD-56 and 99-ORD-103. Records collected during an investigation are for the enforcement of wage and hour laws, and contain sensitive information which must not be released to the public. The investigator's notes also contain sensitive information which must be protected. Failure to adequately protect the information gathered during an investigation may hamper the Cabinet's future enforcement activities if witnesses fear their confidential statements and information will be publicly disseminated.
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 (l).
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.
(Emphasis added.)
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, the name of the complainant, and any information identifying employees contacted by the Cabinet in its investigation, and information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer's concerning the violation. 93-ORD-40; 95-ORD-56; and 99-ORD-103.
In addition, in discussing an investigator's work notes, this office, in OAG 92-90, at p. 2, 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)[i]. Moreover, work papers and intraoffice memoranda are exempt from public inspection under 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. 99-ORD-120. Accordingly, we conclude the Cabinet properly relied upon KRS 61.878(1)(j) and KRS 337.345 in partially denying Mr. Scott's request for all records in the Cabinet's investigative file relating to the requested prevailing wage investigation.
Finally, in his letter of appeal, Mr. Scott argues that KRS 337.345 does not apply to an inspection under prevailing wage statutes. However, language in KRS 337.345 directs that the confidentiality of information applies to "any section of this chapter." We interpret this language to apply to all sections contained in KRS Chapter 337, including the prevailing wage section set forth in KRS 337.505 to 337.550. Thus, we conclude the Cabinet's application of KRS 337.345 to the instant case to be appropriate.
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.