NOT TO BE PUBLISHED
October 7, 1993
IN RE: Frank P. Campisano, Esq./Kentucky Labor Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Labor Cabinet's partial denial of Mr. Frank P. Campisano's request to inspect certain records in the Labor Cabinet's custody.
In his letter to the Labor Cabinet, dated August 9, 1993, Mr. Campisano requested copies of all witness statements, affidavits or notes which purport to be transcriptions of statements made by witnesses, the initial complaint, and any subsequent documentation which the complaining party made available to the Labor Cabinet.
On behalf of the Labor Cabinet, Ms. Margaret Goodlett Miles responded to Mr. Campisano's requests in a letter dated August 13, 1993. She advised him in part as follows relative to access to the occupational safety and health investigative file:
The file you requested contains the investigator's preliminary worknotes which are exempt from release by KRS 61.878(1)(g) and (h). These preliminary worknotes are the rough worknotes usually taken on the jobsite. All remaining worknotes will be released to you. Employee interview statements in the file are exempted from release by KRS 338.101(a) and 61.878(1)(j).
The file also contains correspondence with private individuals and internal memoranda which are exempt from release by KRS 61.878(1)(g) and (h). These preliminary worknotes, employee interview statements and the information listed above are not releasable under the provisions of the Kentucky Open Records Act. (See OAG 87-68). All other documents and forms from the file are releasable and are enclosed.
Under Kentucky's occupational health and safety provisions KRS 338.101(1)(a) in part authorizes the Labor Cabinet to question privately any employer, owner, operator, agent, employee, or employee's representative to determine the cause of, or to prevent the occurrence of, any occupational injury or illness. In 92-ORD-1441, copy enclosed, this office recognized that disclosure of employee interview statements, which were made under KRS 338.101(1)(a), and which were included in the records involving the injury or death of an employee, were exempt from mandatory disclosure under subsection (1)(j), now (1)(k), of KRS 61.878. The term "question privately" in KRS 338.101(1)(a) makes any statement taken from an employee confidential.
In addition, in OAG 89-64, copy enclosed, we dealt with the exceptions to public inspection set forth in KRS 61.878(1)(g) and (h) which now are codified as KRS 61.878(1)(h) and (i). Thus, the previously mentioned opinion and decision interpreting the Open Records Act relative to preliminary documents and worknotes and correspondence with private individuals are controlling here.
It is, therefore, the decision of the Attorney General that the actions of the Labor Cabinet in declining to release the copies of the records sought by the requesting party are consistent with the terms and provisions of the Kentucky Open Records Act.
Mr. Campisano may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against the Labor Cabinet
pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
Frank P. Campisano, Esq.
Suite 10 North
First Trust Centre
200 South Fifth Street
Louisville, Kentucky 40202
Ms. Margaret Goodlett Miles
Kentucky Labor Cabinet
1049 U.S. 127 South
Frankfort, Kentucky 40601