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 Public Protection Cabinet, Division of Employment Standards, properly relied on KRS 61.878(1)(h) in denying Rod Ratliff's January 21, 2005, request for a copy of "the documentation provided by Kentuckiana [Sheet Metal or Kentuckiana Comfort] relative to the final determination of violations by their respective compan[ies] pursuant to KRS 136, 139, 141, 337, 338, 341, and 342." For the reasons that follow, we find that the Division failed to meet its statutory burden of proof in denying Mr. Ratliff's request on the basis of KRS 61.878(1)(h), and that unless it can specifically demonstrate that its investigation will be harmed by premature disclosure of the requested records, those records must be disclosed. 1
In a response dated January 25, 2005, Labor Legal Division paralegal Margaret Goodlett Miles advised Mr. Ratliff that "[t]he file is not releasable at this time, pursuant to KRS 61.878(1)(h) and OAG 87-29, simply because the file is under submission by the investigator and not completed as of this date." (Emphasis in original.) Ms. Miles further advised that upon completion of the investigation, "the releasable copies will be available." In supplemental correspondence directed to this office following commencement of Mr. Ratliff's appeal, the Division indicated that "as of [August 4, 2005,] the file requested by Mr. Ratliff is incomplete [and t]he investigator has not finished the investigation." It was the Division's position that because no final action has been taken in this matter, it "acted consistently with governing precedent in relying on KRS 61.878(1)(h)." While it is no doubt true, as the Division observes, 2 that "[w]here its administrative action ha[s] not yet been completed, the agency could well find it would be harmed by premature release of information to be used in administrative adjudication, " simply saying it is so does not necessarily make it so.
To begin, we note that the Division inaccurately characterizes Mr. Ratliff's request as a request for the investigative "file." In reality, Mr. Ratliff requested "documentation provided by" the companies against which he filed his prevailing wage complaint. (Emphasis in original.) Accordingly, the request does not extend to investigator's work notes and related work product. Moreover, although the Division is an agency involved in administrative adjudication, and the records actually requested can be accurately characterized as records "compiled in the process of detecting and investigating statutory or regulatory violations," the Division fails to explain how "disclosure of the information would harm [it] by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. " KRS 61.878(1)(h) . To this extent, the Division's response is deficient.
KRS 61.878(1)(h) excludes from the application of the Open Records Act:
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 of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action[.] . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In construing this provision, the Attorney General has consistently observed:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
01-ORD-59, p. 8, citing 95-ORD-95, pp. 2-3; 01-ORD-217; 00-ORD-196; 99-ORD-162; 97-ORD-93. Thus, "the need for [the] degree of specificity contemplated by the legislature in KRS 61.880(1) and the Kentucky Court of Appeals in Edmondson v. Alig [Ky. App., 926 S.W.2d 856 (1996)] is particularly compelling when an agency relies on KRS 61.878(1)(h) as the basis for denying access to public records. " 00-ORD-196, p. 3.
By way of contrast, we note that in a recent decision involving access to an occupational safety and health investigative file, the Division invoked KRS 61.878(1)(h), explaining that premature release of the records requested "could jeopardize administrative adjudication by releasing strategies for hearing or witnesses." 05-ORD-168, p. 7. The Attorney General affirmed the Division's denial of the request on this basis, noting that it had "satisf[ied] the third and final element of harm to the agency." Id. In the appeal before us, the Division makes no such showing of harm. Unless it can do so, the records Mr. Ratliff requested must be disclosed to him.
We hasten to note that in past appeals involving prevailing wage investigations, the Division has relied on KRS 337.345, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 3 to deny access to investigative records. That provision prohibits the Division from disclosing:
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:
The Attorney General has affirmed the Division's denial of open records requests on this basis. See, e.g., 95-ORD-56; 99-ORD-15; 99-ORD-149. In the latter decision, we quoted extensively from the Division's response to our notification of the open records appeal:
The Kentucky Labor Cabinet enforces the provisions of KRS 336, 337, and 338. Complaints pursuant to KRS Chapter 337 are investigated by the Division of Employment Standards, Apprenticeship, and Training. The investigators collect documentary evidence, interview complainants, employees, employers and other potential witnesses. The evidence is collected with the understanding that the complainant's identity will not be disclosed and that information secured from the inspection will not be released for purposes other than the enforcement of laws under the jurisdiction of the Commissioner of Workplace Standards. The release of this information is prohibited by KRS 337.345.
. . .
Thus the Labor Cabinet is statutorily prohibited from releasing the identity of the complainant and from releasing information obtained from the employer except to enforce those laws for which the Cabinet has jurisdiction. KRS 61.878(1)(l) exempts from release "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Pursuant to KRS 61.878(1)(l), the information withheld by the Kentucky Labor Cabinet is restricted from release under the Open Records Act.
The Attorney General's Office has dealt with the confidentiality of wage and hour investigations several times in the past. Support for the Labor Cabinet's position may be found in 95-ORD-56 and 99-ORD-103. Records collected during an investigation are for the enforcement of wage and hour laws, and contain sensitive information which must not be released to the public. The investigator's notes also contain sensitive information which must be protected. Failure to adequately protect the information gathered during an investigation may hamper the Cabinet's future enforcement activities if witnesses fear their confidential statements and information will be publicly disseminated.
It is unclear why the Division elected not to invoke this provision in the instant appeal, or whether Mr. Ratliff's status as the complainant/open records requester precludes invocation. We suggest that the Division review KRS 337.345 to determine whether it is statutorily precluded from releasing the requested records while it otherwise undertakes to meet its statutory burden of proof under KRS 61.878(1)(h).
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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides that the burden of proof rests with the public agency that denied inspection of the public record.
2 Citing 03-ORD-232.
3 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.