Request By:
Ms. Diana Haney
Kentucky Department of Labor
620 South Third Street
6th Floor
Louisville, KY 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Mark L. Miller, Attorney for Mr. William Morrow, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. The requested records are described as "a copy of audit performed by investigator, Charles Beverly, involving unpaid overtime compensation due to the applicant, William Morrow, for the years 1982 and 1983." From the correspondence at hand it appears that Mr. Morrow has filed a complaint against his former employer, City of Indian Hills, alleging the failure of the city to compensate him for overtime work as required by KRS 337.285.
You responded to Mr. Miller's request by letter dated May 2, 1984 by stating that KRS 337.345 prohibits the disclosure of any information secured from the inspection of records and you implied that you could not furnish Mr. Miller a copy of the audit for that reason. You further stated that the matter is still under administrative investigation and when the investigation has been completed a tentative finding of fact will be issued; that Mr. Miller and his client would be advised of the final outcome of the investigation.
After we received Mr. Miller's appeal we received a letter from Mr. Murray J. Porath, Assistant Counsel, Labor Cabinet, dated June 4, 1984. Mr. Porath acknowledged that the Labor Cabinet had not given Mr. Miller a timely answer to his open records request and attributed this failure to the inexperience of the office staff. Additionally, he explained that the Labor Cabinet had not complied with the request because the records requested were compiled in the process of detecting and investigating statutory or regulatory violations while the agency is involved in an administrative adjudication. He asserts that such records are exempt from mandatory public disclosure by KRS 61.878(1)(f). He also cites KRS 61.878(1)(g) which exempts "preliminary drafts, notes, . . . ." Mr. Porath concludes that Mr. Miller's request to inspect the audit report is premature. (His letter to us indicates that Mr. Miller received a copy of same.)
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the Labor Cabinet failed to comply with the Open Records Law when it neglected to give the requester a written response to his written request to inspect records within three working days. KRS 61.880(1). A reasonable explanation has been given for this omission and we trust it will not happen again.
From the correspondence at hand and from a telephone conversation with Mr. Porath we believe that the request to inspect the audit report is premature as of this time and that the Labor Cabinet is properly withholding the records in reliance on KRS 61.878(1)(f), (g) because Mr. Miller's client's claim is still under administrative investigation and the audit report requested is preliminary. We suggest that if a request is made to inspect the business records of the City of Indian Hills on which the audit report was based it would probably be on good grounds under the Open Records Law. A copy of this opinion is being sent to the requester.