24-ORD-032
February 12, 2024
In re: Jason Lyvers/Kentucky Education and Labor Cabinet
Summary: The Kentucky Education and Labor Cabinet (“Cabinet”) did
not violate the Open Records Act (“the Act”) when it redacted records
under KRS 337.345, KRS 61.878(1)(i), and KRS 61.878(1)(a). However,
the Cabinet did not carry its burden of showing that KRS 61.878(1)(h)
allowed it to withhold an entire investigation file.
Open Records Decision
Jason Lyvers (“Appellant”) submitted a request seeking “Policy and
Procedures” and “Employee Records” related to a specific business. In response, the
Cabinet identified two separate investigations into that business. The Cabinet
provided the case file for one investigation but redacted information made
confidential under KRS 337.345, preliminary investigative information under
KRS 61.878(1)(i) and (j), and private information under KRS 61.878(1)(a). The
Cabinet withheld the entire case file related to the second investigation under
KRS 61.878(1(h). This appeal followed.
Under KRS 337.345, “the department1 shall not disclose the identity of any
individual filing a complaint” and any “information secured from inspection of the
records . . . or from inspection of the employer’s premises . . . shall be held confidential
and shall not be disclosed or be open to any person.” KRS 337.345 is incorporated into
the Act through KRS 61.878(1)(l), which exempts from inspection public records “the
disclosure of which is prohibited or restricted or otherwise made confidential by
enactment of the General Assembly.” The Cabinet explains that the redacted
information was “obtained from inspections of the employer’s records.” The Office has
previously found that “the Cabinet is prohibited from releasing . . . information
1
As used in KRS 337.345, “‘Department’ means the Department of Workplace Standards in the
Education and Labor Cabinet.” KRS 337.010(1)(b).secured from inspection of the [employer’s] records.” 99-ORD-168. Accordingly, the
Cabinet did not violate the Act when it redacted information made confidential under
KRS 337.345.
KRS 61.878(1)(i) exempts from disclosure “[p]reliminary drafts, notes, [and]
correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency.” Notes may be characterized
as records “created as an aid to memory or as a basis for a fuller statement,” such as
“shorthand notes taken at a meeting.” 05-ORD-179. Here, the Cabinet explained that
the requested notes were a compliance officer’s “rough work notes” created when
officers “record their thoughts, observations, and opinions.” As such, these records
were created for the purpose of aiding the officer’s memory so that he or she may craft
a fuller statement about the event. Accordingly, they are “preliminary notes” within
the meaning of KRS 61.878(1)(i), and the Cabinet did not violate the Act when it
withheld them from inspection.2
KRS 61.878(1)(a) exempts “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” In reviewing an agency’s denial of an open
records request based on the personal privacy exemption, the courts and the Attorney
General balance the public’s right to know what is happening in government against
the personal privacy interest at stake in the record. See Zink v. Commonwealth, Dep’t
of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). However, the Supreme
Court of Kentucky has held that certain categories of information about private
individuals provide minimal insight into governmental affairs and may be
categorically redacted under KRS 61.878(1)(a). Ky. New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). These categories include home addresses,
personal phone numbers, driver’s license numbers, and Social Security numbers. Id.
Here, the Cabinet has explained that it redacted a Social Security number from the
responsive records. Accordingly, the Cabinet did not violate the Act when it redacted
a Social Security number under KRS 61.878(1)(a).
Finally, the Cabinet claims that the entire case file related to the second
investigation is exempt under KRS 61.878(1)(h) because that case “is still active” and
it “is still receiving information from both the complainant and the employer against
whom allegations have been made.” KRS 61.878(1)(h) exempts “[r]ecords of law
enforcement agencies . . . compiled in the process of detecting and investigating
2
Because KRS 61.878(1)(i) is dispositive of the issues related to the requested notes on appeal, it is
unnecessary to address the Cabinet’s alternative argument relating to KRS 61.878(1)(j).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.” When
relying on KRS 61.878(1)(h), the Cabinet must establish that, “because of the record’s
content, its release poses a concrete risk of harm to the agency in the prospective
action. A concrete risk, by definition, must be something more than a hypothetical or
speculative concern.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851
(Ky. 2013).
Here, the Cabinet explains that, because its investigation is ongoing, the
“release of investigation records while the investigation remains open and active
could have a chilling effect on potential witnesses” and any released investigation
records would be “incomplete and subject to misinterpretation” and lead to “bias of
either party at a future adjudication hearing.” These claims are speculative and do
not demonstrate, based on the actual contents of the records, a “concrete risk of harm
to the agency in the prospective action,” as that term was interpreted by the City of
Ft. Thomas Court. Thus, the Cabinet has failed to carry its burden that KRS
61.878(1)(h) allows it to withhold the entire file of the second investigation.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#018
Distributed to:
Jason LyversApril L. Abshire
Nicole M. Prebeck
Kimberly A. Grasberger
Jamie Link