Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Environmental and Public Protection Cabinet, Department of Labor, violated the Open Records Act in partially denying Charles D. Walter's May 9, 2005, request for "any and all materials [relating to the Department's investigation of his client, Direct Tech, Inc.] which are contained in your files, including investigation material and/or materials submitted by the complaining witness, Duncan T. Smith." For the reasons that follow, we affirm the Department's position.
In a response dated May 10, 2005, Department of Labor Paralegal Margaret Goodlett-Miles furnished Mr. Walter with "[t]he nonexempt information from the case," but denied him access to "preliminary worknotes and correspondence with private individuals . . ." pursuant to KRS 61.878(1)(i) and (j). Shortly thereafter, Mr. Walter initiated this appeal, asserting his client's right to the records withheld "so that we may more fully defend this case."
In supplemental correspondence directed to this office following commencement of this appeal, Ms. Goodlett-Miles elaborated on the Department's position. She explained that "[t]he only materials not released to Mr. Walter were the investigator's preliminary (rough) worknotes and a preliminary memorandum in which opinions were expressed . . . equal[ling] two pages." Continuing, she observed:
This is a small file containing mainly the complaint. The company was notified of the complaint by certified mail on January 21, 2003, and notified to send in their position statement in ten days. The company was sent a second certified letter on March 11, 2005, that failure to respond would result in the case being transferred to the General Counsel's office. The company did not send any response, resulting in a small file.
On behalf of the Department, Ms. Goodlett-Miles reasserted that the records withheld qualify for exclusion under KRS 61.878(1)(i) and (j). Based on the overwhelming weight of legal authority, we affirm.
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:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) 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 investigation of a complaint, as well as preliminary memoranda containing opinions relative to the investigation, fall squarely within the parameters of these exceptions. See, e.g., OAGs 82-192; 83-5; 83-140; 84-275; 84-275; 85-58; 85-142; 86-3; 86-57; 87-68; 88-9; 89-64; 92-90; 92-ORD-1441; 93-ORD-38; 01-ORD-223; 02-ORD-157, 03-ORD-072.
Although the exceptions to the Open Records Act have been deemed a "convenient shield 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 the Attorney General, no matter how compelling the requester's need for these records. It is for the Department of Labor 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 more of the exceptions codified at KRS 61.878(1)(a) through (n). We therefore conclude that the Department's partial denial of Mr. Walter'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 proceeding.
Distributed to:
Charles D. WalterBoehl, Stopher & Graves, LLP410 BroadwayPaducah, KY 42001
Margaret Goodlett-MilesParalegalEnvironmental and Public Protection CabinetOffice of Legal Services, Labor Legal Division1047 U.S. 127 SouthFrankfort, KY 40601