Request By:
Miller Kent Carter
122 Division Street
P.O. Box 576
Pikeville, KY 41502Margaret Goodlett Miles
Labor Cabinet
1047 U.S. Hwy. 127 S., Ste. 4
Frankfort, KY 40601-4381Kembra Taylor
General Counsel
Labor Cabinet
1047 U.S. Hwy. 127 S., Ste. 4
Frankfort, KY 40601-4381
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Labor Cabinet violated provisions of the Open Records Act in the disposition of Miller Kent Carter's request for access to the occupational safety and health investigative file pertaining to a workplace injury sustained by his client, Donnie Gene Thacker, while Mr. Thacker was employed by Music Construction. For the reasons that follow, and based on the authorities cited, we affirm the Cabinet's partial denial of Mr. Carter's request.
In a response dated September 28, 2001, Labor Cabinet paralegal Margaret Goodlett Miles notified Mr. Carter that portions of the investigative file would be withheld. Specifically, Ms. Miles indicated that the Cabinet would not disclose preliminary worknotes and correspondence with private individuals contained in the file under authority of KRS 61.878(1)(i) and (j). In addition, she stated that "information identifying employees contacted and/or interview statements had been removed pursuant to KRS 338.101(1)(a)," incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Shortly thereafter, Mr. Carter initiated this appeal, challenging the Cabinet's refusal to release the entire file. We find that the overwhelming weight of legal authority supports the Cabinet's position.
Among the public records that may be excluded from public inspection in the absence of a court order authorizing inspection are those identified at KRS 61.878(1)(i) and (j) as:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
It is well settled that an occupational safety and health compliance officer's worknotes generated in the course of an investigation of a work site, and containing preliminary drafts of possible citations, along with the compliance officer's observations and opinions, may properly be withheld under authority of KRS 61.878(1)(i) and (j). See, e.g., OAGs 82-192; 83-5; 83-140; 84-275; 84-345; 85-58; 85-123; 85-142; 86-3; 86-57; 87-68; 88-9; 89-52; 89-64; 92-90; 92-ORD-1441; 93-ORD-38.
It is equally well settled that employee interview statements that were obtained by a compliance officer under authority of KRS 338.101(1)(a), and that are located in the investigative file, are excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(l). The latter provision authorizes agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 338.101(1)(a) provides:
(1) In order to carry out the purposes of this chapter, the commissioner or his authorized representative shall have the authority:
(Emphasis added.) The open records decisions cited above construe the term "question privately" to extend protection to any statements thus obtained. We believe that these decisions are dispositive of the appeal before us.
Although the exceptions to the Open Records Act have been deemed "convenient shields which public officials may use when they desire to do so [and] not restraints to keep them from opening up any records in their custody," OAG 79-275, p. 3, the decision to release otherwise exempt records rests with the agency, and not with the Attorney General, no matter how compelling the requester's need for those records. It is for the Labor Cabinet to exercise its discretion in deciding whether to release all of the records in its investigative file or to withhold some of the records under one of the exceptions codified at KRS 61.878(1)(a) through (l). We therefore conclude that the Cabinet's partial denial of Mr. Carter's request did not violate the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.