Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Labor violated the Open Records Act in partially denying the request submitted by Michael Baunach requesting all records relating to "KY DOL 07-015, or any actions related to or arising from said case." For the reasons that follow, we affirm the Department's disposition of the request.
In responding, the Department partially denied the request for a copy of the entire file, advising:
The releasable information from the file is enclosed. The preliminary worknotes 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). In addition, the information that was sent to the Department by you as well as correspondence between yourself and the Department are not enclosed as this information should already be in your possession.
Subsequently, Mr. Baunach initiated the instant appeal, challenging the Department's partial denial of his request.
After receipt of notification of the appeal, Leslie E. Renkey, General Counsel, on behalf of the Department, provided this office with a response to the issues raised in the appeal. In his response, Mr. Renkey advised:
Due to numerous requests from other individuals as well as the necessary review of extensive records contained in the file requested by Mr. Baunach, the response with releasable records was not mailed to him until August 23, 2007. 1
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). 06-ORD-224; 03-ORD-249.
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). 03-ORD-249. KRS 61.878(1)(l) 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:
(Emphasis added.) This office has construed the term "question privately" to extend protection to any statements thus obtained. OAG 82-192; 92-ORD-1441; 98-ORD-190. We believe that these decisions are dispositive of the appeal before us. Any information identifying employees contacted and/or interviewed may be withheld from disclosure pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(l).
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 otherwise exempt records rests with the agency and not with the Attorney General, no matter how compelling the requester's need for those records. It is for the Department of Labor to exercise its discretion in deciding whether to release all of the records in its investigative file or to withhold some of the records under one of the exceptions codified at KRS 61.878(1)(a) through (l). We therefore conclude that the Department'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 proceeding.
Distributed to:
Michael Baunach
Noelle BrodeurLegal SecretaryLabor Legal Division1047 U.S. Hwy. 127 SouthFrankfort, KY 40601
Leslie E. RenkeyGeneral CounselOffice of Legal ServicesKentucky Department of LaborEnvironmental and Public Protection Cabinet1047 U.S. 127 SouthFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.880(1) requires that an agency respond to an open records request within three business days. The Department's response was made on the fourth business day. Although its response was one day late and constituted a procedural violation of KRS 61.880(1), the Department complied in all other material respects with the requirements of the Open Records Act in its partial denial of Mr. Baunach's request.