Request By:
Ms. Anne Leitsch, Paralegal
Kentucky Labor Cabinet
U.S. 127 Building, South
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Conley C. Congleton, Assistant Attorney General
Mr. Michael W. Brown has appealed to this office your denial of his request to be given certain information in the possession of the Kentucky Labor Cabinet.
In a letter to the Kentucky Labor Cabinet, dated December 12, 1988, Mr. Brown requested that you give him information pertaining to the date, time of day call placed, phone number, and name of person or persons placing complaint, with reference to OSHA Complaint No. 70121702. You replied to Mr. Brown in a letter dated December 19, 1988. You advised him that, "The information you requested is exempt from release by KRS 61.878(1)(f) and (j) and KRS 338.101(1)(a)."
Mr. Brown's letter of appeal to this office, dated February 15, 1989, stated:
Due to a court case now in process in Jefferson County Circuit Court (Case No. 88-CI-00542), I feel it necessary to call upon you requesting information resulting in an OSHA complaint. I believe this complaint was a direct result of this case. It would be most helpful if you could supply me the information as to who and when the complaint was lodged. I believe the only reason a complaint was filed was to cause more harassment and unnecessary legal complications for the case now pending.
As stated in my letter dated 12 December 1988 (copy enclosed) there will be no disciplinary actions taken if in fact this was a legitimate employee complaint. But I feel this was based on the court case now pending.
You have informed me that the person(s) who made the complaint did so prior to the OSHA inspection of Mr. Brown's business premises and that their complaint was the basis for the OSHA inspection. Additionally, you have told me that, per your normal office procedure, the contents of the complaint were made available to Mr. Brown with the exception of information pertaining to the identity of the person(s) who made the complaint. Finally, you have informed me that the Labor Cabinet has determined to take no further action with regard to said complaint and that the file is now closed on the matter.
OPINION OF THE ATTORNEY GENERAL
KRS 338.101(1)(a), which you cited in support of your denial of Mr. Brown's request, authorizes the Commissioner or his authorized representative:
To enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places, question privately any such employer, 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, in OAG 88-9, OAG 89-10 and OAG 88-67, 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), which you also cited. That particular statutory provision states that public records or information, the disclosure of which is prohibited or restricted or otherwise made confidential by the enactment of the General Assembly, 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.
In OAG 86-3, it was stated, in part, that:
The purpose in part of a provision such as that found in KRS 338.101(1)(a) is to promote confidentiality. The employee or other person questioned or interviewed by the Labor Cabinet can answer or make statements without fear of retribution.
The possibility of any potential retribution is significantly reduced if the confidentiality of the employee's statements is preserved and it is lessened further if the identity of the employee making the statement is kept confidential.
However, as noted above, this matter involves a person or persons making a complaint that resulted in an OSHA inspection, as opposed to an employee making a statement in response to questioning during an OSHA inspection. Therefore, KRS 338.101(1)(a) and KRS 61.878(1)(j) do not properly apply in support of your denial.
KRS 61.878(1)(f), which you cited in support of your denial, states:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
. . .
(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 to delay or impede the exercise of rights granted by KRS 61.870 to 61.884;
As noted above, the Labor Cabinet has determined to take no further action with regard to this particular matter. Therefore, the public record regarding this matter may be opened for inspection unless exempted by other provisions of KRS 61.870 to 61.884.
It is my understanding that everything in the record has already been made available to Mr. Brown with the exception of the identity or information leading to the identity of the person(s) who filed the complaint, and that excepted portion of the public record is precisely what Mr. Brown is seeking.
In OAG 84-315, this office stated:
Regarding the complainant's identity, however, it is our opinion that this information is exempt from public inspection (except upon court order) pursuant to KRS 61.878(1)(a) which excludes:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invation of personal privacy.
. . . The standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. Additionally, the complainant's identity is protected by the Department's policy of keeping complainants' names confidential. This policy is illustrative of the chilling effect which could occur if this information was open to public inspection.
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the Department of Housing.
The same reasoning applies here as applied in OAG 84-315, and it applies whether a complainant was or was not an employee of Mr. Brown. But, if a complainant was an employee, it is even more important to note the chilling effect which would most definitely occur if a complainant's name were to be released. Employees are among the most knowledgeable of people with regard to the conditions that exist in the workplace, and they would be very unlikely to report problems to OSHA if they knew their names would be released and they felt that they could, and very probably would, be subjected to harassment or retribution from their workplace superiors. See also OAG 85-126 and 85-136.
It is therefore, the opinion of the Attorney General that the Labor Cabinet's denial of the request pertaining to identification of the person or persons placing the complaint (or information leading thereto) was justified.
As required by statute, a copy of this opinion is being sent to the appealing party, Michael W. Brown, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.