Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,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 Jerri Leigh Jackson's request for access to all records in the Division of Employment Standards, Apprenticeship and Training investigative files pertaining to her complaints against Southern Baptist Theological Seminary, Fairfield Inn, The Jewish Community Center, and McDonald's Inc. 1 For the reasons that follow, and based on the authorities cited, we affirm the Cabinet's partial denial of Ms. Jackson's request.
In a response to Ms. Jackson's request, Labor Cabinet paralegal Margaret Goodlett Miles notified Ms. Jackson that portions of the requested investigative files 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, the Cabinet withheld access to "information identifying employees contacted and/or interview statements pursuant to KRS 338.101(1)(a)," and information obtained from the employers records, both incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Shortly thereafter, Ms. Jackson initiated this appeal, challenging the Cabinet's refusal to release the entire investigative files relating to the investigations of Southern Baptist Theological Seminary, Fairfield Inn, and The Jewish Community Center.
We are asked to determine whether the Cabinet's partial denial of Ms. Jackson's requests constituted a violation of the Open Records Act. For the reasons that follow, we conclude the Cabinet properly withheld portions of the investigative files under authority of KRS 61.878(1)(i), (j), and (l); KRS 337.345; and KRS 338.101(1)(a).
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). 92-90; 92-ORD-1441; 93-ORD-38.
KRS 61.878(1)(l) excludes from the application of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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). 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 and, therefore, exempt from mandatory public disclosure by KRS 61.878(1)(l). Thus, any information identifying employees contacted and/or interview statements may be withheld from disclosure pursuant to KRS 338.101(1)(a), in tandem with KRS 61.878(1)(l). OAG 82-192; 98-ORD-190.
In addition, KRS 337.345 provides:
Except as otherwise provided in this section, the department shall not disclose the identity of any individual filing a complaint or request for inspection under any section of this chapter, except as necessary to enforce, and then only with the specific written permission of the complainant. Except as otherwise provided in this section, information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer's premises by the commissioner or his authorized representatives, shall be held confidential and shall not be disclosed or be open to any person except such information may be made available to:
(1) Officials concerned with, and for the purposes of administration of the laws relating to matters under the jurisdiction of the commissioner;
(2) Any agency of this or any other state, or any federal agency for the purpose of enforcing KRS 337.275 to 337.325, 337.345, and 337.385 to 337.405;
(3) To the Wage and Hour and Public Contracts Division of the United States, Department of Labor.
Thus, pursuant to KRS 337.345, in tandem with KRS 61.878(1)(l), the Cabinet is prohibited from releasing the complaint, the name of the complainant, and any information identifying employees contacted by the Cabinet in its investigation, and information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer's concerning the violation. 93-ORD-40; 95-ORD-56; and 99-ORD-103.
Accordingly, we conclude the Cabinet properly withheld portions of the investigative files under authority of KRS 61.878(1)(i), (j), and (l); KRS 337.345; and KRS 338.101(1)(a) and its partial denial of her requests did not constitute a violation of 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 proceeding.
Jerri Leigh Jackson69 Lumley Ave., Apt. CFt. Thomas, KY 41075-1821
Margaret Goodlett MilesKentucky Labor Cabinet1047 US Highway 127 S., Ste. 4Frankfort, KY 40601-4381
Kembra Sexton TaylorOffice of General CounselKentucky Labor Cabinet1047 US Highway 127 S., Ste. 4Frankfort, KY 40601-4381
Footnotes
Footnotes
1 In her initial response on behalf of the Cabinet, Ms. Miles advised Ms. Jackson that the investigation of McDonald's Inc. was incomplete and she would need to follow up on that portion of her request in approximately 2 - 3 weeks. Ms. Jackson does not appeal that portion of the Cabinet's response relating to McDonald's Inc. We do note, however, that once the investigation of McDonald's Inc. is completed, Ms. Jackson would be entitled to all nonexempt records relating to that investigation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -