Request By:
Ms. Carol M. Palmore
General Counsel
Department of Labor
Commonwealth of Kentucky
U.S. 127 Building South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. James T. Whittle, Jr., attorney, has appealed to the attorney general pursuant to KRS 61.880 your denial of inspection of certain records in your custody described as "the complete investigative file and reports relating to a fatality at the Iler Construction Company, Inc.," and further particularly described as "witness statements taken by a compliance officer of the department of labor. " Mr. Whittle asserts in his complaint letter that two of the witnesses interviewed by the department of labor were not employees of the Iler Construction Company and, therefore, would not be protected by any confidentiality which might be found to exist under KRS 338.101.
You responded to Mr. Whittle's request by letter dated December 2, 1982 stating, inter alia:
"The witness statements are excluded from release by the provisions of KRS 61.878(1)(j) and KRS 338.101 which state that interviews with employees are confidential. However, the names and addresses of witnesses who were interviewed are included on the OSHA narrative, a copy of which is enclosed. "
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the attorney general that your denial of inspection of witness statements made by employees is consistent with the open records law, KRS 61.870 - 61.884 for the reasons stated in OAG 82-192, copy enclosed.
We have not been furnished a copy of Mr. Whittle's request letter to you and, consequently, we do not know whether he brought to your attention that two of the witnesses' statements which he requested were made by persons who are not employees of Iler Construction Company. Nor do we know the status of those witnesses. The persons authorized to be questioned privately by representatives of the commissioner of the department of labor under KRS 338.101 are "any such employer, owner, operator, agency, employee, or employee's representative." A claim of confidentiality as to the statement of a witness of any other status than that named above would have to be supported by another reason than the provisions of KRS 338.101. Without knowing the status or circumstances pertaining to those two witnesses mentioned by Mr. Whittle as not being employees of the construction company we cannot give an opinion as to whether the statements should have been withheld from inspection. The issue needs to be further clarified between Mr. Whittle and your agency.
As directed by statute a copy of this opinion is being sent to the requester who has the right to take further proceedings under KRS 61.880.