Request By:
Rex Hunt, 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
Foster L. Haunz, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Kentucky Labor Cabinet.
Under the Open Records Law the function of this office [as stated in KRS 61.880(2)] is, if requested to do so, to issue a written opinion to the public agency concerned stating whether the agency's denial of the request to inspect public records was proper under that law. This opinion will, therefore, be confined to the interpretation and analysis of the applicable sections of the Open Records Law. There will be no attempt to deal with sections of this state's labor laws except as they directly pertain to resolving an issue under the Open Records Act, or with whether a right to secure documents exists under any other statutes or rules of the courts.
In a letter to Mr. Pat Patterson of the Labor Cabinet in Louisville, dated September 30, 1986, Mr. Haunz in part requested that he be furnished with a copy of the affidavits filed with the Labor Cabinet charging his client, Busy Brooms, with a violation of the state's labor laws.
Mr. Patterson's letter of October 2, 1986, advised Mr. Haunz that all requests made under the Open Records Law must be directed to the Labor Cabinet's offices in Frankfort.
In a letter to the Secretary of the Labor Cabinet, dated October 6, 1986, Mr. Haunz again requested that he be furnished with a copy of the affidavits filed with that Cabinet charging his client with violations of the state's labor laws. You responded to Mr. Haunz, in a letter dated October 14, 1986, advising him that the investigative file concerning the matter was not then available. When the file became available you said you would advise Mr. Haunz relative to the number of releasable documents and the costs of copying those documents. 1
Mr. Haunz's letter to you of October 15, 1986, asked for a clarification of your position relative to your letter of October 14, 1986, and he restated his request for access to the affidavits.
You directed a letter to Mr. Haunz, dated October 20, 1986, in which you advised him that the investigative file in question is not subject to public inspection at this time. In support of your decision denying his request to inspect you cited the provisions of KRS 61.878(1)(f) and (g). Mr. Haunz wrote you on October 22, 1986, and, basically, he took exception to your reliance upon KRS 61.878(1)(f) and (g).
In a letter to this office dated April 8, 1987, Mr. Haunz stated he was appealing your denial of his request to inspect and copy the affidavits and your failure to file a copy of your denial letter with the Attorney General. 2 He maintains that the records in question are subject to inspection as your agency's completion of the audit and notification to prepare checks constitute final agency action.
The undersigned Assistant Attorney General talked with you by telephone regarding the open records question on April 14, 1987. Of particular interest to me were the status of the investigation, the duration of the investigation and what had happened from the time your letter of October 20, 1986, was written until Mr. Haunz's appeal was filed with this office. You said you would furnish me with a status report.
Your letter to me, dated April 15, 1987, which I did not receive until April 20, 1987, stated that the investigator who was handling the investigation had been assaulted while conducting another investigation. Having been off work for several months it now appears that she will leave the Labor Cabinet permanently. The matter has been assigned to another investigator and the investigation will be concluded shortly. A tentative Finding of Facts which ends the investigation is being prepared and will be sent to Mr. Haunz.
I was unable to reach you by telephone on April 21, 1987, and in your absence I talked with Mr. Charles McCoy, Director of the Division of Employment Standards and Mediation. He advised that the tentative Findings of Fact should be issued in about two weeks. He also stated that since Mr. Haunz's client and the Labor Cabinet could not reach a settlement relative to the issue of unpaid and owing back wages, the Labor Cabinet has been proceeding pursuant to 803 KAR 1:035 and the pertinent statutory provisions. In his opinion, the investigation has not yet been completed.
OPINION OF THE ATTORNEY GENERAL
In response to the issue raised by Mr. Haunz's appeal concerning your failure to file a copy of your denial letter with the Attorney General, your attention is directed to KRS 61.880(2). That statute in part requires that the public agency forward immediately to this office a copy of its written response denying inspection of the public documents in question. Presumably your agency will comply with this provision in all future situations involving the denial of requests to inspect public records.
As to Mr. Haunz's contention that the records in question are subject to inspection since the Labor Cabinet's completion of the audit and notification to prepare checks constitute final agency action, we disagree. Had the employer prepared the checks and had the employer and the Labor Cabinet resolved the issue of unpaid and owing back wages the matter would have been finalized.
In this situation, however, the issue of back wages owed and unpaid has not been resolved, the employees involved have not received their checks and the matter has not been completed. The Labor Cabinet is proceeding pursuant to statutory provisions and administrative regulations and the investigation will be completed with the issuance by the Labor Cabinet of its tentative Findings of Fact in about two weeks. At this point the investigation, although lengthy in duration, is still an uncompleted, active and ongoing matter.
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(f):
"Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
In OAG 86-77, copy enclosed, this office referred to an earlier opinion, dealing with a case file in the possession of the State Police, in which we concluded that such a file was not open so long as the case is pending. That opinion said in part:
". . . Since you indicate that these are still active files, they are therefore not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)(f) provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which will reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-424; KRS 17.150(2)."
Numerous other opinions of this office have concluded that investigative files and reports maintained by public agencies are not subject to public inspection until after the administrative action or prosecution is completed or a determination not to proceed administratively or judicially has been made. See, for example, OAG 87-15, copy enclosed.
While the exemption from public inspection set forth in KRS 61.878(1)(f) will apply until the administrative or judicial action has been completed or until it has been decided to take no such action, the documents in question would be subject to public inspection upon completion of the administrative or judicial action or the making of the decision not to take such action, unless the documents may be exempted from inspection pursuant to another statutorily recognized exception to inspection.
Since the investigation has not yet been completed and the Labor Cabinet has not yet issued its tentative Findings of Fact, we do not at this time have to deal with what specifically can be properly withheld. Since the investigation is still an ongoing process, all the documents pertaining to it can be withheld at this time. See, however, OAG 84-249 and OAG 87-10, copies enclosed, dealing with the public agency's responsibilities once the investigation has been completed and the report prepared relative to that investigation.
It is, therefore, the opinion of the Attorney General that your denial of the request to inspect and copy documents in the agency's investigative file was proper at this time under KRS 61.878(1)(f) as the agency is engaged in an active and on going investigation, the matter pertaining to back wages has not been resolved and the agency has not yet issued its tentative findings of fact which will officially conclude the investigation.
As required by statute, a copy of this opinion is being sent to the requesting party, Foster L. Haunz, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).
Footnotes
Footnotes
1 In the opinion of the Attorney General this was not a proper response in view of the requirements set forth in KRS 61.872(4).
2 As required by KRS 61.880(2), you should have forwarded immediately to this office a copy of your written response denying inspection of the public documents in question.