Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Workers Claims violated the Open Records Act in denying Mat A. Slechter's October 15, 2004 request for "copies of all letters issued by the Office of Workers Claims between October 1, 2004 and the present date advising injured workers of the termination of their temporary total disability (TTD) payments." For the reasons that follow, we conclude that the Department properly denied access to the requested records under authority of KRS 61.878(1)(l) and KRS 342.229.
Relying upon KRS 61.878(1)(a) and Zink v. Commonwealth of Kentucky, Department of Workers Claims, 902 S.W.2d 825 (Ky.App. 1994), Carla H. Montgomery, General Counsel, Department of Workers Claims, denied Mr. Slechter's claims stating that the requested records contained the name and address of the injured workers which would be exempt under KRS 61.878(1)(a) .
Shortly thereafter Mr. Slechter initiated the instant appeal, taking the position that Zink had no bearing on his request for copies of the temporary total disability (TTD) termination letters issued by the Department as the TTD letters contained none of the personal information that led the Court of Appeals to block access to the First Report of Injury forms at issue in Zink.
After receipt of notification of the appeal and a copy of Mr. Slechter's letter of appeal, Ms. Montgomery, provided this office with a response to the issues raised in the appeal. Elaborating on the Department's denial, she explained in relevant part:
Our agency does not release documents which contain information personally identifying an individual alleging a work related injury based on Zink v. Commonwealth of Kentucky, Department of Workers Claims, 902 S.W.2d 825, as well as KRS 342.229(1). KRS 342.229(1) specifically prohibits the disclosure of this information unless a party satisfies the commissioner of their interests in the record and right to inspect. Our agency also asserts that the open records statute exemption found in KRS 61.878(1)(a) sustains our agency's position and is the basis for the finding of the Kentucky Court of Appeals in Zink v. Commonwealth.
We are asked to determine whether the Department's denial of Mr. Slechter's request violated the Open Records Act. For the reasons that follow, and based on KRS 342.229(1), in tandem with KRS 61.878(1)(l), we affirm the Department's denial of the request.
KRS 61.878(1)(l) provides for the nondisclosure of:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
The specific statute or enactment of the General Assembly relied upon by the Department in denying the request was KRS 342.229(1), which provides:
The records of the Department of Worker's Claims, to the extent that they provide information personally identifying an individual alleging a work related injury or occupational disease, shall not be open to the public but only to parties satisfying the commissioner of their interest in the records and their right to inspect them.
Under the express terms of this statute, the Department must withhold all records that personally identify an individual alleging a work related injury or occupational disease unless the requester can satisfy the commissioner of his interest in the records and the right to inspect them. The requested records advise injured workers of the termination of their temporary total disability (TTD) payments and personally identify these individual and their addresses who alleged a work related injury or occupational disease. The evidence before us does not indicate that Mr. Slechter has presented to and satisfied the Commissioner of his interest in the records and his right to inspect them. Accordingly, under these facts we find the Department properly withheld access to the records under authority of KRS 61.878(1)(l) and KRS 342.229(1).
It is important to note that KRS 342.229(1) was enacted subsequent to the Court's decision in Zink and establishes a statutory prohibition on disclosure of this information absent a determination by the commissioner that a party has satisfied his interest in and right to inspect the records. As noted above, the record before us does not indicate that Mr. Slechter met this standard. By its express terms, KRS 342.229(1) "characterizes the requested information as confidential and it is not our function to question the wisdom of this legislative mandate." 04-ORD-060, p.6.
Moreover, in 98-ORD-78, we stated that, as a rule of general application, this office will defer to the public agency in its interpretation of confidentiality provisions which are binding upon it. In that opinion, we deferred to the Revenue Cabinet in its interpretation of KRS 131.190(1) and affirmed its denial of a request to inspect maps, filed with tax returns, which contained information such as names of owners, boundaries, locations of seams, and amounts of coal severed and remaining on the property as a reserve. See, also e.g., 94-ORD-76 (deferring to Cabinet for Human Resources in its interpretation of KRS 620.050(4) ; 97-ORD-33 (deferring to Corrections Cabinet in its interpretation of KRS 197.025). Thus, in the absence of legal authority which is contrary to the Department's position on KRS 342.229(1), we defer to the Department's interpretation and affirm its denial of the request.
Because the Department's reliance upon KRS 342.229(1) and KRS 61.878(1)(l) is dispositive of this appeal, we need not address the additional basis for denial relied upon by the Department in support of its denial.
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.
Mat A. SlechterSampson, Smith & Slechter, PLLC600 Starks Building455 South Fourth StreetLouisville, KY 40202 Carla H. MontgomeryGeneral CounselEnvironmental & Public Protection CabinetWorkers Claims Legal Division657 Chamberlin AvenueFrankfort, KY 40601