Request By:
Ms. Margaret E. Goodlett
Kentucky Labor Cabinet
U.S. 127 Building, South
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of September 26, 1989, Anne E. Bauch, a Liberty Mutual Claims Adjuster has appealed your September 22, 1989 denial of her September 15, 1989 request to inspect certain of the Cabinet's records. The records involve an Occupational Safety and Health investigation regarding the fatal wounding of Ronald Wilcox at the Paducah and Louisville railroad yard in Louisville, Kentucky on July 26, 1989. The records sought might be indexed under "Ron Wilcox - C/G Group." A possible associated file number is P541-34243-01.
FINDINGS IN BRIEF
The Kentucky Labor Cabinet acted consistent with Open Records provisions by promptly responding in writing to a request to inspect certain of the agency's records, citing in its denial a specific exception within KRS 61.878 as a basis for its denial, providing a brief explanation of the relationship of the denial to the records withheld, and forwarding a copy of its denial to the Attorney General. Where its administrative action had not been completed, the agency could well find it would be harmed by premature release of information to be used in administrative adjudication. Accordingly, its denial of inspection pursuant to KRS 61.878(1)(f) was supported by fact and proper at law.
FACTUAL BACKGROUND
By letter of September 15, 1989, Anne E. Bauch, a Claims Adjuster with Liberty Mutual Insurance, at Louisville, Kentucky, explained that Ronald Wilcox was fatally wounded at the "P&L Railroad" yard at 13th and East St. Catherine in Louisville, Kentucky on July 26, 1989. Ms. Bauch asked that the investigative officer's OSHA report be forwarded [to Liberty Mutual] along with any fees for such service.
Ms. Bauch's request was marked as received by the Labor Cabinet on September 19, 1989.
The Cabinet, over your signature, by letter dated September 20, 1989, in substance denied inspection of its records. It cited as a basis for its denial, KRS 61.878(1)(f), and OAG 87-29. A brief explanation indicated the denial was because the file was under submission by the compliance officer and had not been completed as of the date of the Cabinet's denial.
The Cabinet advised that releasable material would be sent when action in the case was completed.
Ms. Bauch asked that this office review your determination.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case the Cabinet promptly responded, in writing, to a request to inspect certain of its records. It cited KRS 61.878(1)(f), one of the statutory exceptions to the general rule that public records are open to inspection. It gave a brief explanation that the file was "under submission by the compliance officer and was not completed" in that action to be taken had not been finally determined. The agency advised that when the file was completed and final action was determined, copies of releasable material would be sent.
A copy of the agency's response was forwarded to the Attorney General.
KRS 61.878(1)(f) provides, in substance and in part, that excepted from the general rule that records of public agencies are open to inspection are:
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 would harm the agency . . . by premature release of information to be used in a prospective law enforcement action or adjudication.
The Cabinet invoked such exception until its administrative or adjudicative process was completed. Such basis is a proper one while enforcement action is still under consideration and final action has not been taken, as indicated by the Cabinet's explanation. Accordingly, the Cabinet acted consistent with KRS 61.870 to 61.884.
We understand that after issuing its denial, the Cabinet issued administrative citations in connection with the accident in question. We further understand that such citations are recognized as being in the public domain and that the Cabinet has forwarded copies of them to Ms. Bauch.
In its denial, the Cabinet, in addition to the specific statutory exception upon which it based its denial, cited Opinion of the Attorney General (OAG) 87-29. We reviewed that Opinion in connection with the preparation of this one. The records involved in that matter were substantially the same as were requested by Ms. Bauch. The analysis and reasoning in that opinion is thus applicable to the facts involved here. The analysis and findings in OAG 87-29 appear correct. Accordingly, we follow OAG 87-29 in this opinion.
Ms. Bauch may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Ms. Anne E. Bauch.