Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Environmental and Public Protection Cabinet, Department of Labor violated the Kentucky Open Records Act in partially denying the requests submitted by Hans G. Poppe on May 5, 2005, for copies of "any and all inspection reports, documents, photographs, and/or videos pertaining to the [referenced inspections] at the Kentucky Machine & Engineering Facility at 590 Glenwood Mill Road, Cadiz, Kentucky 42211." With respect to Inspection Number 304703564 (May 21, 2002), the Department properly relied upon KRS 61.878(1)(i) and (1)(j) in withholding the preliminary work notes and correspondence with private individuals contained in the occupational safety and health investigative file, and properly redacted information identifying employees pursuant to KRS 338. 101(1)(a), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Because the file relating to Inspection Number 30808377 (February 4, 2005 - February 8, 2005) contains records that were compiled in the process of detecting statutory or regulatory violations which contain information, the premature disclosure of which could jeopardize a prospective administrative adjudication, the Department properly denied Mr. Poppe's request as to those records on the basis of KRS 61.878(1)(h). On both counts, the Department's position is supported by governing precedent.
By letter dated May 10, 2005, Margaret Goodlett Miles, Paralegal, Labor Legal Division, responded to Mr. Poppe's request for copies of records contained in the file generated pursuant to the 2005 inspection on behalf of the Department. As observed by Ms. Miles:
The file you requested is currently in litigation, therefore, pursuant to KRS 61.878(1)(h), the records in the file are exempt from release, with the exception of the citation, a copy of which is enclosed. The Cabinet feels that the premature release of information could jeopardize administrative adjudication by releasing strategies for [the] hearing or witnesses. If you need additional information from this file, you may wish to resubmit your request in ninety days.
Although the Department released the "nonexempt information from the inspection, " Ms. Miles partially denied Mr. Poppe's request relative to the 2002 inspection as well in a response dated May 11, 2005. In the Department's view:
The preliminary [work notes] and correspondence with private individuals are exempted from release pursuant to KRS 61.878(1)(i) and (j) to[]wit: correspondence with private individuals; and preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Also, any information identifying employees contacted has been removed pursuant to KRS 338.101(1)(a).
On July 6, 2005, Mr. Poppe initiated this appeal from the Department's partial denials of his requests. According to Mr. Poppe, "the inspection reports have been requested because [Mr. Poppe/his clients] are investigating a potential products liability case arising out of the death of Mr. Bill Brown, Sr." Upon receiving notification of Mr. Poppe's appeal from this office, Ms. Miles reiterated her argument relative to KRS 61.878(1)(h).
Addressing first the Department's partial denial of Mr. Poppe's request for copies of any existing records relating to the 2002 inspection, this office affirms the Department's reliance upon KRS 61.878(1)(i), (1)(j), and KRS 338.101(1)(a) as in prior decisions issued by the Attorney General. Among those records excluded from application of the Open Records Act 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 both work notes generated by an occupational safety and health compliance officer in the course of inspecting/investigating a work site, which contain preliminary handwritten drafts of possible citations, along with the observations and opinions of the compliance officer, and correspondence with private individuals which are not intended to give notice of final action, may properly be withheld in accordance with KRS 61.878(1)(i). In addition, work papers and interoffice memoranda containing opinions and recommendations relative to the investigation are exempt from public inspection pursuant to KRS 61.878(1)(j). To summarize, work notes containing a compliance officer's observations, opinions and preliminary drafts of possible citations, and preliminary recommendations and memoranda may be withheld pursuant to KRS 61.878(1)(i) and (j). 05-ORD-133; 03-ORD-249; 03-ORD-232; 03-ORD-072; 02-ORD-157; 01-ORD-223; 99-ORD-120; 03-ORD-38; 92-ORD-1441; OAG 92-90; OAG 89-64; OAG 88-9; OAG 87-68; OAG 86-57; OAG 86-3. 1
Equally well-settled is the principle that employee interview statements acquired by a compliance officer pursuant to KRS 338.101(1)(a) that are included among those records in an investigative file are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). 2 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:
(Emphasis added). In OAG 84-345, this office construed the phrase "question privately," as used in KRS 338.101(1)(a) , to render any statement so acquired confidential and therefore exempt from mandatory disclosure. 92-ORD-1441; OAG 92-20; OAG 89-64; OAG 88-67; OAG 88-36; OAG 88-9; OAG 87-79; OAG 87-68; OAG 87-25; OAG 87-9; OAG 86-57; OAG 86-37; OAG 86-27; OAG 82-192. n3
Although the exceptions to the Open Records Act have been deemed "convenient shields which public officials may use when they desire to do so [and] not restraints to keep them from opening up any records in their custody," OAG 79-275, p. 3, the decision to release statutorily exempt records rests with the agency and not the Attorney General regardless of how compelling the requester's need for the records may be. It is for the Department to exercise its discretion in deciding whether to release all of the records in a particular investigative file or to withhold portions of the file under one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Because the records and information withheld by the Department relative to the 2002 inspection (304703564) fall squarely within the parameters of KRS 61.878(1)(i), (j) and KRS 338.101(1)(a), the Department fully complied with the Act and prior decisions of this office in partially denying Mr. Poppe's request. In light of this determination, the question becomes whether the Department properly withheld all existing records, with the exception of the citation, that are responsive to Mr. Poppe's request for copies from the file concerning the 2005 inspection (308083377) on the basis of KRS 61.878(1)(h). 4
Also excluded from application of the Open Records Act in the absence of a court order authorizing inspection are those records identified at KRS 61.878(1)(h) as:
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.
In construing this provision, the Attorney General has consistently observed:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
01-ORD-59, p. 8, citing 95-ORD-95, pp. 2-3; 01-ORD-217; 00-ORD-196; 99-ORD-162; 97-ORD-93. Thus, "the need for [the] degree of specificity contemplated by the legislature in KRS 61.880(1) and the Kentucky Court of Appeals in Edmondson v. Alig [Ky. App., 926 S.W.2d 856 (1996)] is particularly compelling when an agency relies on KRS 61.878(1)(h) as the basis for denying access to public records. " 00-ORD-196, p. 3.
When confronted with the question of whether the Kentucky Labor Cabinet properly denied the request of a Liberty Mutual Claims Adjuster on this basis, the Attorney General concluded:
The Cabinet invoked such exception 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 61.884.
OAG 89-80, p. 3; See also 03-ORD-232; 99-ORD-195, adopting OAG 89-80 and OAG 87-29. Such is the case here.
As evidenced by the record, the Department indisputably qualifies as a public agency involved in administrative adjudication as required to trigger application of KRS 61.878(1)(h). Likewise, the records at issue were clearly generated pursuant to the subject investigation or "compiled in the process of detecting and investigating statutory or regulatory violations." On two occasions, the Department has asserted that premature release of the records requested "could jeopardize administrative adjudication by releasing strategies for hearing or witnesses," thereby satisfying the third and final element of harm to the agency. Numerous decisions of this office support the Department's position that a public agency is not required to disclose records of the type requested until final action has been taken on the matter. 05-ORD-162; 04-ORD-041; 03-ORD-232; 02-ORD-208; 97-ORD-107; 93-ORD-117; OAG 91-57; OAG 89-80; OAG 87-15.
Because the instant appeal presents no reason to depart from the approach historically taken by this office, the same outcome necessarily follows. "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 89-80. p. 2. Having satisfied each of the three requisite elements, the Department properly denied Mr. Poppe's request on the basis of KRS 61.878(1)(h).
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.
Hans G. PoppeThe Poppe Law Firm440 South 7th Street, Suite 100Louisville, KY 40203
Margaret Goodlett MilesEnvironmental and Public Protection CabinetOffice of Legal ServicesLabor Legal Division1047 U.S. Highway 127 South, Suite 4Frankfort, KY 40601
Footnotes
Footnotes
1 See 05-ORD-048, a copy of which is attached hereto and incorporated by reference, for the analysis employed by this office in determining whether a public agency has properly invoked KRS 61.878(1)(i) and (j).
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2 KRS 61.878(1)(l) authorizes public 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."
4 Because the Department has provided Mr. Poppe with copies of the "non-exempt information from the inspection" in 2002, and the 2005 citation, a copy of which is attached to Mr. Poppe's letter of appeal, any issues relative to those records are now moot. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Accordingly, this office declines to render a decision as to those records.
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