Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Environmental and Public Protection Cabinet - Department of Labor, violated the Kentucky Open Records Act in partially denying a request for "a copy of the entire file on all investigations, inspections, and citations relating to Kelley Brothers Roofing, Inc., also referenced as Kelly Brothers Roofing, Inc., from January 1996 to the present." More specifically, Stephanie Day, of Goodson & Company, Ltd., requested disclosure of "all documents associated with Inspection # 307078840; KOSHRC Docket # 4204-05; and inspection dates January 25, 2005 through February 3, 2005[,]" including any "inspections, copies of reports, photographs, witness statements, citations, and settlement papers on each inspection location from 1996 to the present." 1 Parroting the language of KRS 61.878(1)(i) and (j), the Department of Labor denied access to "preliminary worknotes and correspondence with private individuals" contained in the files; the Department also redacted "any information identifying employees contacted" pursuant to KRS 338.101(1)(a).
In a letter received by this office on May 19, 2006, Bridget Kellner, Paralegal for Brett Goodson, initiated this appeal from the Department's partial denial of Ms. Day's request on behalf of their client, the family of James Swearingen, Jr., "who died as a result of injuries sustained in a fall from a roof under construction with Kelley Brothers Roofing, Inc. on January 14, 2005." While Ms. Kellner understands "the necessity of maintaining the confidentiality of this information during the Department of Labor's investigation of the incident in order to protect the employees, employer, and/or injured worker, the investigation and subsequent proceedings are now closed." In her view, "defendants are afforded an unfair advantage in their investigation of the incident itself if the EPPC investigator's original notes, interviews, and opinions are not made available" to the plaintiff. Accordingly, Ms. Kellner asks this office to consider her request for the release of the entire inspection file, in particular, "the names of any employees privately interviewed and those interview notes, as well as the work notes of the compliance officer."
Upon receiving notification of Ms. Kellner's appeal, Ms. Miles reiterated that names and personal information of employees interviewed by the compliance officer were redacted from the records provided "pursuant to KRS 338.101(1)(a) which gives the commissioner the authority to question privately any employee"; the Department is correct in this assertion. In 05-ORD-168, a copy of which is attached hereto and incorporated by reference, this office conclusively resolved the sole issue presented thereby reaffirming the approach historically taken by the Attorney General in this context; the instant appeal presents no reason to depart from governing precedent. Because the records and information withheld by the Department fall squarely within the parameters of KRS 61.878(1)(i), (j), and KRS 338.101(1)(a), the Department fully complied with the Open Records Act and prior decisions of this office in partially denying Ms. Kellner's request.
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.
Bridget KellnerParalegal for Brett GoodsonGoodson & Company, Ltd.110 East Eighth Street, Suite 200Cincinnati, OH 45202-2132
Margaret Goodlett MilesParalegalEnvironmental and Public Protection CabinetOffice of Legal ServicesLabor Legal Division1047 U.S. 127 South, Suite 4Frankfort, KY 40601
Footnotes
Footnotes
1 Although Ms. Day originally directed her request to the "FOIA Coordinator" at the Occupational Safety and Health Administration in Atlanta, Georgia, on January 12, 2006, Cindy Coe Laseter, Regional Administrator, advised Ms. Day that any existing responsive records would be in the custody of either the United States Department of Labor-OSHA, in Birmingham, Alabama, or the Kentucky Department of Labor, in Frankfort, Kentucky. On January 31, 2006, Margaret Goodlett Miles, Paralegal, responded on behalf of the latter agency.