Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Labor Cabinet violated the Kentucky Open Records Act in denying John K. Carter's March 1, 2013, request, sent "in response to the conclusions set out in [the Department of Workplace Standards, Division of Employment Standards, Apprenticeship & Mediation's letter concerning violations of KRS 337.285 and 337.275] dated February 27, 2013 to Oldham County Fiscal Court." Mr. Carter asked for the following:
1. [A]ll records upon which you, or any person acting on your behalf, relied in reaching the conclusions set forth in your February 27, 2013 letter and the calculations set out in your spreadsheet.
2. [A] copy of all written, recorded or oral statements of any person, including all employees of government, wheresoever employed, obtained by you in your investigation of all matters addressed in the February 27, 2013 letter and spreadsheet.
3. [A]ll records utilized by you that evidence the exact times of each day allegedly worked by each employee listed in your letter that support each entry on your spreadsheet including the month, day and year of those times.
4. [Y]our list of each person who provided information or assisted in the conclusions reached in your letter of February 27, 2013 and in the compilation set forth in the spreadsheets provided with your February 27, 2013 letter.
5. [A]ll notes, letters, documents, and electronic media, including emails, wheresoever situated, utilized by you, or anyone acting on your behalf, in reaching the conclusions set forth in your February 27, 2013 letter and the spreadsheets referenced therein.
6. [E]very record utilized by you, or anyone acting on your behalf, that resulted in your clearly erroneous conclusion that "on call" time was so restrictive, both in policy and in practice, that "on call time" constituted "work time."
7. [Y]our record of the names, addresses and telephone numbers of all persons to whom your February 27, 2013 letter and supporting spreadsheets were provided; and, any and all information provided to all persons, either written or verbal, other than the Program Manager, Jerald Adkins, who is copied on your letter, as to the conclusions and findings in your February 27, 2013 letter and supporting [spreadsheet] .
In a timely written response, the Cabinet denied Mr. Carter's request "as the case is still pending and considered preliminary." (Original emphasis.) Citing KRS 61.878(1)(i), the Cabinet withheld "preliminary recommendations (field notes) and preliminary memoranda in which opinions are expressed or policies formulated or recommended." 1 Relying upon 93-ORD-40, 95-ORD-56, and 99-ORD-103, the Cabinet further asserted that "affidavits and/or employee statements and complainant names are exempt from release in accordance with the confidentiality provisions of KRS 337.345. This provision also excludes employer's records from release." Mr. Carter subsequently initiated this appeal. He argued that neither "exempt privacy policy set out in KRS 337.345" nor the Open Records Act exemptions codified at KRS 61.878(1)(i) and (j) apply in this case, as the Cabinet waived any privacy issues by identifying the individuals to whom it alleges back pay is owed in the February 27 letter and there is "nothing preliminary about the Labor Cabinet's demand letter. " 2 This office respectfully disagrees. Inasmuch as the mandatory language of KRS 337.345, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), expressly prohibits the Cabinet from disclosing any existing records containing precisely the kind of information requested, this office affirms the agency's denial in accordance with prior decisions, including 99-ORD-168, the reasoning of which is controlling on the facts presented.
Upon receiving notification of Mr. Carter's appeal from this office, David N. Shattuck, Office of General Counsel, responded on behalf of the Cabinet. Mr. Shattuck initially advised that in conducting a wage and hour investigation the Cabinet audits the employer's payroll records; accordingly, "the bulk of the investigative file in this case consists of records submitted by the Oldham County Fiscal Court." Per telephone contact on March 25, Mr. Shattuck explained, Mr. Carter clarified that he is not requesting the records that were submitted to investigator Thomas G. Yancey by his client. Aside from those records obtained from the Fiscal Court, which are not in dispute but "which constitute the bulk of the file," the Cabinet advised that "almost all of the remaining records are exempt from disclosure" under governing precedents. According to Mr. Shattuck, the records can be generally described as "employee interviews" and "Mr. Yancey's field notes."
Quoting 08-ORD-237, the Cabinet argued that '"employee interview statements acquired by a compliance officer pursuant to KRS 338.101(1)(a) . . . are excluded from the mandatory disclosure provisions of the [Act] by operation of KRS 61.878(1)(l).'" It is equally well-settled, the Cabinet asserted, "that work notes and interoffice memoranda containing opinions relative to the investigation are exempt pursuant to KRS 61.878(1)(i) and (j). 05-ORD-168." The underlying rationale of these decisions, the Cabinet reasoned, "applies with equal force to employee interviews and the work notes of a wage and hour investigator. These two sets of records are certainly exempt from disclosure. " Mr. Shattuck further advised that although the employer, Oldham County Fiscal Court, did receive a demand letter, it has now provided information which requires further investigation and records generated during wage and hour investigations remain preliminary "until at least the issuance of Tentative Findings of Fact pursuant to KRS Chapter 337." Because the instant appeal presents no basis to depart from prior decisions applying KRS 337.345, this office affirms the Cabinet's denial of Mr. Carter's request on that basis; consideration of the agency's other bases for denial is therefore unnecessary and this office makes no finding.
Here, as in past appeals involving wage and hour investigations, the Cabinet has relied upon KRS 337.345 , incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 3 in denying access to such investigative records. Pursuant to KRS 337.345, the Cabinet is prohibited 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 consistently affirmed the Cabinet's denial of requests for wage and hour investigation records on the basis of KRS 337.345. See, e.g., 95-ORD-56; 99-ORD-15; 99-ORD-149; 99-ORD-168; 06-ORD-073; 07-ORD-222. In 99-ORD-168, a copy of which is attached hereto and incorporated by reference, this office quoted extensively from the Cabinet's response as follows:
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.
99-ORD-168, pp. 2-3; see also 99-ORD-149 (copy enclosed); 05-ORD-215.
As in prior appeals, the Attorney General finds that KRS 337.345, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), expressly prohibits the Cabinet from disclosing not only the complaint and the name of the complainant, but any information identifying employees contacted by the Cabinet during the investigation, and "information secured from inspection of the records . . . or inspection of the employer's premises . . . ." 99-ORD-168, pp. 3-5. The broad language of this confidentiality provision extends to all records upon which Mr. Yancey (or anyone acting on his behalf) relied in reaching his conclusions, including statements, notes, e-mails, etc. To hold otherwise would contravene both KRS 337.345 and this well-established line of authority.
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:
John K. CarterDavid N. ShattuckApril L. Abshire
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