Request By:
Betty A. Springate
Assistant Counsel
Kentucky Department of Labor
U.S. 127 Bldg., South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Charles Landrum, Jr. has appealed to the Attorney General, on behalf of Doug Cox, your denial of Mr. Cox's request to inspect certain records in your possession as Assistant Counsel for the Kentucky Department of Labor. Specifically, Mr. Cox requested to inspect all of your file material pertaining to Commissioner of Labor v. Floyd Vanderpool Electrical Contractor, Inc., KOSHRC #977. You granted Mr. Cox's request, but exempted the occupational safety and health compliance officer's worknotes pursuant to KRS 61.878(1)(g). It is from that exemption that Mr. Landrum now appeals.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law.
KRS 61.878(1)(g) exempts from public inspection (except upon court order)
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.
The Department of Labor has indicated to us that the compliance officer's worknotes are compiled in the ordinary course of an occupational safety and health investigation of an employer worksite, and may contain preliminary handwritten drafts of possible citations and correspondence with private individuals which are not intended to give notice of final action. In a fatality investigation, the correspondence may be with the coroner. In dealing with a particular hazard, the correspondence may be with manufacturers of safety devices. However, this correspondence is preliminary and does not evidence a final action. Therefore, the KRS 61.878(1)(g) exemption applies.
This office has consistently held that work papers and intra-office memoranda are also exempt from public inspection pursuant to KRS 61.878(1)(h) which exempts:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
See OAG 80-504, 79-470. The Department of Labor has indicated to us that the compliance officer's worknotes may contain his hand-drawn diagrams of the worksite or work operations, plus his observations, opinions, and possibly preliminary drafts of citations which may or may not be finally issued. The worknotes are thus exempted from public inspection by KRS 61.878(1)(h) as preliminary memoranda in which opinions and recommendations are expressed.
The Department of Labor has also indicated that the compliance officer's worknotes may contain notations of conversations with employees and employers. OAG 83-140 has held that the term "question privately" in KRS 338.101 (which authorizes the compliance officer to inspect the workplace and talk with employers and employees) makes any statement taken from an employee or employer confidential and exempt from public inspection by KRS 61.878(1)(j).
Therefore, it is the opinion of this office that your denial of inspection of the compliance officer's worknotes was proper under Open Records law, pursuant to KRS 61.878(1)(g), (h) and (j).
As directed by statute, a copy of this opinion is being sent to the requester who may initiate further proceedings pursuant to KRS 61.880.