NOT TO BE PUBLISHED
December 2, 1993
In Re: Julia B. Barry, Esq./Kentucky Labor Cabinet
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal from the Kentucky Labor Cabinet's partial denial of Ms. Julia B. Barry's request to inspect certain records in the Labor Cabinet's custody.
In her letter to the Labor Cabinet, dated November 4, 1993, Ms. Barry requested "a copy of the OSHA report that was probably done shortly after the accident."
On behalf of the Labor Cabinet, Ms. Margaret Goodlett Miles responded to Ms. Barry's request in a letter dated November 8, 1993. She advised her in part as follows relative to access to the occupational safety and health investigative file:
The file you requested contains the compliance officer'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. These preliminary worknotes 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.
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 93-ORD-115, 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 and OAG 87-68, copies 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 opinions and the 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 action 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.
Ms. Barry 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:
Julia B. Barry, Esq.
202 North Mulberry
Elizabethtown, Kentucky 42701
Ms. Margaret Goodlett Miles
Kentucky Labor Cabinet
1049 U.S. 127 South
Frankfort, Kentucky 40601