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 Department of Labor violated the Open Records Act in responding to a series of requests submitted by Isaac A. Harris. For the reasons that follow, we affirm the Department's disposition of each of Mr. Harris' requests. A summary of those requests, and the Department's responses thereto, follows:
3/22/06Mr. Harris requests "all complaints, citations, and findings for any and all work for or under the purview of the University of Kentucky."
3/28/06Margaret Goodlett Miles responds on behalf of the Department, providing Mr. Harris with a copy of the violation history on the University of Kentucky.
4/6/06Mr. Harris requests "all 'findings' for any and all construction work done for the University of Kentucky, under the oversight of any office of the University of Kentucky or on property owned, controlled or used by the University of Kentucky for the past eight years both wage and health and safety."
4/11/06Ms. Miles notifies Mr. Harris that the Department "cannot retrieve information on a specific location" because "all records are indexed by employer's name." She further notifies him that the program utilized to extract the data previously provided "only allows the researchers to go back five years." She urges Mr. Harris to review the information already provided to identify specific project numbers for which additional information is sought and submit an amended request.
4/13/06Although Mr. Harris' appeal does not contain a copy of an amended request, Ms. Miles responds to his request for information relating to Inspection # 302077052; 305911182; 305367146; and 304704695 by releasing all nonexempt information. She explains that preliminary worknotes and correspondence has been withheld pursuant to KRS 61.878(1)(i) and (j) as well as KRS 338.101(1)(a).
Shortly thereafter, Mr. Harris initiated this appeal challenging "the refusal of the University of Kentucky to allow [him] to inspect their records pertaining to construction work performed for the University of Kentucky . . . for the past eight years." He maintained that "the information they 1 forwarded did not contain the information that was requested." While the records released to Mr. Harris may not have yielded the desired information, we find no error in the Department's disposition of his requests.
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; 01-ORD-223; 03-ORD-249.
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.) This office has construed the term "question privately" to extend protection to any statements thus obtained. OAG 82-192; 92-ORD-1441; 98-ORD-190. We believe that these decisions are dispositive of the appeal before us. Any information identifying employees contacted and/or interviewed may be withheld from disclosure pursuant to KRS 338.101(1)(a) and KRS 61.878(1)(l). 2
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 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 of the exceptions codified at KRS 61.878(1)(a) through (l). We therefore conclude that the Department's partial denial of Mr. Harris' 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.
Isaac A. HarrisField RepresentativeCarpenters Local Union 1650402 South BroadwayLexington, KY 40508
Margaret Goodlett Miles, ParalegalEnvironmental and Public Protection CabinetOffice of Legal ServicesLabor Legal Division1047 U.S. 127 SouthFrankfort, KY 40601
Leslie E. RenkeyGeneral Counsel Environmental and Public Protection CabinetOffice of Legal ServicesLabor Legal Division1047 U.S. 127 SouthFrankfort, KY 40601
Footnotes
Footnotes
1 Although there is some ambiguity in Mr. Harris letter of appeal, we assume that the "they" to which he refers is the Department of Labor and not the University of Kentucky since none of his requests were addressed to the University and the University had no opportunity to respond in any fashion.
2 It is unclear whether the investigative files to which Mr. Harris requested access involve allegations relating to occupational health and safety or both occupational health and safety and wage and hour. Given the Department's response to his request, we must assume that the request was confined to the former since the Department made no reference to KRS 337.345 which it regularly invokes in the latter context.