Opinion
Opinion By: Albert B. Chandler III, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kentucky Labor Cabinet violated the Kentucky Open Records Act in denying Gregory Schabell's request for a copy of "the entire contents" of the occupational safety and health investigative report "regarding the tragic incident involving Mr. Cletus Charles Woeste on 8-20-03." 1 Mr. Schabell filed the subject request in his capacity as legal counsel for the family of Mr. Woeste who was killed on August 20, 2003, while working for Cincinnati Bell, Inc. in Petersburg, Kentucky. Because the investigative file in question is not yet complete, we find that the Cabinet properly relied upon KRS 61.878(1)(h) in denying Mr. Schabell access to its contents.
In a response dated September 22, 2003, Margaret Goodlett Miles, Paralegal, denied Mr. Schabell's request on behalf of the Cabinet, advising him as follows:
This is in response to your request for information from the above-referenced occupational safety and health investigative file.
At this time the file is not releasable pursuant to KRS 61.878(1)(j), simply because the file is under submission by the compliance officer and is not completed; therefore the file is considered to be preliminary in nature at this time. As soon as the file is completed and this agency has decided what action to take, the releasable copies will be available. You may want to call my office in approximately five to six weeks to check on the status of the file. 2
Since this is a refusal of your request at this time, pursuant to KRS 61.880, you have the right to ask the Attorney General, Honorable A.B. Chandler, III, State Capitol, Frankfort, Kentucky 40601, to review our decision.
On appeal, Mr. Schabell explains that the Woeste family has not yet received "any answer as to the exact cause of death" and "will not have any peace until they review the official reports from the Labor Cabinet." Mr. Schabell further contends that the "preliminary reports could later be changed and that valuable information may be forever lost to the family." In his view, "all losses are time sensitive" and the preliminary information is necessary in order to "complete a proper evaluation as to whether or not to go forward with a civil lawsuit . . ." In closing, he indicates that the estimated time frame of five to six weeks is "basically unacceptable" to the family because their "level of grief is significant." Accordingly, he "strongly urge[s]" us to provide the requested information to him as soon as possible.
In a supplemental response directed to this office following commencement of this appeal, Ms. Miles reiterates that the investigation of the circumstances surrounding Mr. Woeste's death is not complete. Citing KRS 61.878(1)(h) and 61.878(1)(i), she argues that the requested records are preliminary in nature and, therefore, are exempt from disclosure. According to Ms. Miles, the Cabinet will make the "non-exempt copies" available "[o]nce the investigation is complete and a final determination has been made."
Pursuant to KRS 61.878(1), certain public records "are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, . . ." Among the public records that may be excluded from inspection absent a court order authorizing inspection are those described in KRS 61.878(1)(h):
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; . . .The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]
When confronted with the issue of whether the Cabinet properly denied the request of a Liberty Mutual Claims Adjuster on this basis under circumstances paralleling those presented here, we concluded:
The Cabinet invoked such exception 3 until its administrative or adjudicative process was completed. Such basis is a proper one while enforcement action is still under consideration and final action has not been taken, as indicated by the Cabinet's explanation. Accordingly, the Cabinet acted consistent with KRS 61.870 to KRS 61.884.
OAG 89-90, p. 3. 4 We find OAG 89-90 to be equally dispositive on the facts presented. See also 99-ORD-195, adopting OAG 89-90 and OAG 87-29.
Consistent with this governing precedent, we conclude that the Cabinet properly relied upon KRS 61.878(1)(h) in denying Mr. Schabell's request for a copy of the investigative file regarding the tragic circumstances surrounding Mr. Woeste's death "because the file is under submission by the compliance officer" and the Cabinet has not yet taken any final action on the matter. "Where its administrative action had not yet been completed, the agency could well find it would be harmed by premature release of information to be used in administrative adjudication. " OAG 89-90, p. 2. In light of this determination, we do not reach the question of whether the requested records would also be exempt from public inspection under KRS 61.878(1)(i) and 61.878(1)(j).
A party aggrieved by this decision may appeal it by initiating an 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.
Gregory N. SchabellBusald, Funk Zevely, P.S.C.226 Main StreetP.O. Box 6910Florence, KY 41022-6910
Margaret Goodlett MilesKY Labor Cabinet1047 U.S. Hwy. 127 S, Ste. 4Frankfort, KY 40601-4381
Kembra Sexton TaylorGeneral CounselKY Labor Cabinet1047 U.S. Hwy. 127 S, Ste. 4Frankfort, KY 40601-4381
Footnotes
Footnotes
1 In his original request, Mr. Schabell acknowledged that "the report is not completed and that the investigators are not permitted to speak to anyone regarding the investigation until it is complete," and asked the Cabinet to provide him with a copy of the report "once it is completed."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 Original emphasis.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 Although KRS 61.878(1)(h) was codified as KRS 61.878(1)(f) at the time that OAG 89-90 was rendered and was subsequently amended, the relevant language remains intact in the current version.
4 As the records at issue in OAG 89-90 were "substantially the same" as those requested in OAG 87-29, we followed OAG 87-29 in that opinion.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -