Request By:
Betty A. Springate, Esq.
General Counsel
Kentucky Labor Cabinet
The 127 Building
U.S. Highway 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Linsey W. West, Esq. has apparently appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. In his letter to you dated February 12, 1986, he described the records in question as the occupational safety and health investigative file concerning the April 12, 1984, fatality at the Louisville-Jefferson County Metropolitan Sewer District's maintenance shop. In that same letter Mr. West requested the Attorney General to review the Labor Cabinet's decision not to release the preliminary worknotes and employee interview statements regarding this file. At this point Mr. West may have been referring to the letter of June 29, 1984, addressed to Mr. Michael P. Scott, prepared by Labor Cabinet Legal Aide Mark S. Snell, dealing with the same incident and records as he dealt with in his letter of February 12, 1986.
In a letter to the Attorney General, dated February 17, 1986, which was prior to your letter of February 20, 1986, to Mr. West, he asked the Attorney General to review the decision of the Labor Cabinet not to release the preliminary worknotes and employee interview statements contained in the occupational safety and health investigative file pertaining to the April 12, 1984, fatality at the Louisville-Jefferson County Metropolitan Sewer District's maintenance shop.
In your letter of February 20, 1986, to Mr. West you stated in part that the records requested contain the compliance officer's worknotes, which are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h), and three employee interview statements which are exempt from public inspection pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(j). You, therefore, refused to release the preliminary worknotes and the employee interview statements to Mr. West. Copies of all other forms and documents in the file were made available.
Although Mr. West's letter to the Attorney General, dated February 17, 1986, was prepared before your letter to him, dated February 20, 1986, we are treating his letter to the Attorney General as an appeal of your letter of February 20, 1986, which denied his request to inspect public records. You did ultimately deny his request and both letters concerned the same event and the same records. Furthermore, even if Mr. West intended to appeal from the denial of the request set forth in the letter of the Labor Cabinet's Legal Aide, Mark S. Snell, dated June 29, 1984, and addressed to Michael P. Scott, that letter pertained to the same event and the same records as did your letter of February 20, 1986, to Mr. West.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that you acted in conformity with the Open Records Law, KRS 61.870 to KRS 61.884, in denying access to those records in the ocupational safety and health investigative file consisting of the compliance officer's worknotes and the three employee intrveiew statements.
KRS 61.878(1)(g) and (h) exempt the following public records from public inspection in the absence of a court order:
"(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
"(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
In OAG 85-146, copy enclosed, we dealt with the occupational safety and health compliance officer's worknotes. Where those worknotes are compiled in the ordinary course of an investigation of an employer worksite, and contain preliminary handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, the material is preliminary and the exemption set forth in KRS 61.878(1)(g) applies. Furthermore, work papers and intraoffice memorands are exempt from public inspection under KRS 61.878(1)(h). Thus, worknotes containing the compliance officer's hand-drawn diagrams of the worksite or work operations and his observations, opinions and preliminary drafts of possible citations are exempt from public inspection by KRS 61.878(1)(h).
In connection with the three employee interview statements, KRS 338.101(1)(a) authorizes the Commissioner or his authorized representative:
"To enter without delay and advance notice any place of employment during regular any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employers, owner, operator, agency, employee, employee's representative, and investigate such facts, conditions, practices, or matters deemed appropriate to determine the cause of, or to prevent the occurrence of, any occupational injury or illness." (Emphasis supplied.)
This Office has previously stated that the term "question privately" makes any statement taken from an employee confidential and, therefore, exempt from mandatory public disclosure by KRS 61.878(1)(j). That particular statutory provision states that public records or information, the disclosure of which is prohibited or restricted or otherwise made confidential by an enactment of the General Assemblv, are excluded from the application of KRS 61.870 to KRS 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction. See OAG 85-142 and OAG 86-3, copies of which are enclosed.
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the compliance officer's worknotes and the three employee interview statements was proper under the Open Records Law pursuant to KRS 61.878(1)(g), (h), and (j) and KRS 338.101(1)(a).
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. West, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).