Request By:
Don SherryDebbie Henderson
Division of Employment Standards
1047 U.S. Highway 127 South
Frankfort, KY 40601Noelle Brodeur
Labor Legal Division
Environmental and Public Protection Cabinet
1047 U.S. Highway 127 South
Frankfort, KY 40601Leslie E. Renkey
General Counsel
1047 U.S. Highway 127 South
Frankfort, KY 40601
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 request of Don Sherry "to inspect and if necessary copy . . . Any and all documents which may be in the possession, custody and control of the Kentucky Office of Workplace Standards with respect to Precision Walls[,] Inc. located at 4501 Beryl Rd., Raleigh, N.C. 27606 with offices at 2225 Plantside[,] Dr. Louisville, KY 40299." In a timely written response, 1 Noelle Brodeur, Labor Legal Division, responded on behalf of the Department. Citing KRS 61.878(1)(i), the Department withheld "preliminary recommendations (field notes) and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " In addition, the Department asserted that the "complaint is not releasable pursuant to KRS 337.345 to-wit: 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." Likewise, "affidavits and/or employee statements are exempt from release in accordance with the confidentiality provisions of KRS 337.345. This provision also excludes employer's records from release." In support of its position, the Department relied upon 93-ORD-40, 95-ORD-56, and 99-ORD-103. By letter dated September 6, 2007, Mr. Sherry initiated this appeal from the partial denial of his request.
Upon receiving notification of Mr. Sherry's appeal from this office, Leslie E. Renkey, General Counsel, responded on behalf of the Department, advising that Mr. Sherry has been provided with "all records required to be released. Contrary to Mr. Sherry's assertions, the copies of the releasable records are legible and contain the summary of the Department's investigation." According to the Department, "records not released were properly withheld under the provisions of KRS 61.878(1)(i) and KRS 337.345. The Department's application of these exemptions has been consistently upheld by the Attorney General. See 93-ORD-40; 95-ORD-56; 99-ORD-103." Because the instant appeal presents no reason to depart from governing precedents, this office affirms the Department's disposition of Mr. Sherry's request. 2
In our view, 95-ORD-56 and 99-ORD-168 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. In 99-ORD-168, this office concluded that the Department, formerly known as the Kentucky Labor Cabinet, "properly relied upon KRS 61.878(1)(j), KRS 61.878(1)(l), and KRS 337.345 in partially denying [a] request for all records in the [Department's] investigative file relating to the requested prevailing wage investigation." Id., p. 4. As before, the Attorney General finds that KRS 337.345, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), prohibits the Department from releasing the complaint, the name of the complainant, any information identifying employees contacted by the Department during the investigation, and "information secured from inspection of the records . . . or from inspection of the employer's premises . . . ." Id. at pp. 3-5; 06-ORD-073. Accordingly, the Department did not violate the Open Records Act in partially denying Mr. Sherry's request.
Footnotes
Footnotes
1 Although Mr. Sherry submitted his request via e-mail, which is not a permissible method of delivery under KRS 61.872(2), public agencies can waive this requirement as the Department apparently did here.
2 Although the Department cites KRS 61.878(1)(i) and omits KRS 61.878(1)(j), the former protects any preliminary drafts, notes, and correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, whereas the latter protects any preliminary recommendations or memoranda in which opinions are expressed or policies formulated or recommended; however, the application of both provisions by the Department has also been consistently upheld by the Attorney General as evidenced, for example, by 02-ORD-157.