Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Labor Cabinet violated provisions of the Open Records Act in its disposition of Phillipe W. Rich's request for access to the entire occupational and safety investigative file pertaining to Kentucky Department of Military Affairs, Inspection # S0111-024-02/305064248. For the reasons that follow, and based on the authorities cited, we affirm the Cabinet's partial denial of Mr. Rich's request.
In a response dated August 7, 2003, Labor Cabinet paralegal Margaret Goodlett Miles notified Mr. Rich that portions of the investigative file would be withheld. Specifically, Ms. Miles advised that the Cabinet would not disclose preliminary worknotes and correspondence with private individuals contained in the file under authority of KRS 61.878(1)(i) and (j). In addition, she stated that "information identifying employees contacted and/or interview statements has been removed pursuant to KRS 338.101(1)(a) ."
Shortly thereafter, Mr. Rich initiated this appeal, challenging the Cabinet's refusal to release the entire file.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Miles provided this office with a response to the issues raised in the appeal. In her response Ms. Miles advised that the majority of the file (25 pages) was released to Mr. Rich and reasserted the Cabinet's position that it had properly withheld the page containing employee names and addresses that were contacted by the investigator under authority of KRS 338.101(1)(a) and the preliminary worknotes and preliminary memoranda in which opinions were expressed or policies formulated pursuant to KRS 61.878(1)(i) and (j).
We are asked to determine whether the Cabinet's partial denial of Mr. Rich's request constituted a violation of the Open Records Act. For the reasons that follow, we conclude the Cabinet properly withheld portions of the investigative file under authority of KRS 61.878(1)(i), (j), and the information identifying employees contacted and/or interview statements pursuant to KRS 338.101(1)(a), in tandem with KRS 61.878(1)(l).
Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j) as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
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 worknotes generated in the course of an investigation of a work site, and containing preliminary drafts of possible citations, along with the compliance officer's observations and opinions, may properly be withheld under authority of KRS 61.878(1)(i) and (j). OAG 92-90; 92-ORD-1441; 93-ORD-38.
It is equally well settled that employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). The latter provision authorizes agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 338.101(1)(a) provides:
(1) In order to carry out the purposes of this chapter, the commissioner or his authorized representative shall have the authority:
(a) To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, owner, operator, agent, employee, or employee's representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness.
(Emphasis added.) This office has construed the term "question privately" to extend protection to any statements thus obtained. OAG 82-192; 92-ORD-1442; 98-ORD-190. We believe that these decisions are dispositive of the appeal before us. Any information identifying employees contacted and/or interview statements may properly be withheld from disclosure pursuant to KRS 338.101(1)(a), in tandem with KRS 61.878(1)(l). 03-ORD-072.
We therefore conclude that the Cabinet's partial denial of the request did not violate 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 proceedings.
Phillipe W. RichHughes & ColemanLegal Arts Building200 S. 7th St., Suite 110Louisville, KY 40202
Margaret Goodlett MilesOffice of General CounselKentucky Labor Cabinet 1047 U.S. 127 South, Suite 4Frankfort, KY 40601
Kembra Sexton TaylorOffice of General CounselKentucky Labor Cabinet1047 U.S. 127 South, Suite 4Frankfort, KY 40601