September 16, 1994







IN RE: James D. Allen/Kentucky Labor Cabinet






On behalf of his client, the Trane Company, Mr. James D. Allen challenges the Kentucky Labor Cabinet's denial of his June 8, 1994, request to inspect "the entire contents of the investigative file completed during the course of the investigation [of the company conducted by the Kentucky Occupational Safety and Health Compliance Office between March 9, 1994, and April 28, 1994]." In a letter dated June 14, 1994, Ms. Margaret Goodlett Miles, a paralegal employed by the Labor Cabinet, denied Mr. Allen's request. Relying on KRS 61.878(1)(g), she stated that the case "is now in litigation," and that the requested records are exempt from disclosure. In response to Mr. Allen's argument, on appeal to this Office, that KRS 61.878(1)(g) is inapplicable, Ms. Miles released the contents of the file with the exception of the compliance officer's preliminary worknotes. In support of this denial, she cited KRS 61.878(1)(g) and (h).


The question presented in this open records appeal is whether the Labor Cabinet properly denied that portion of Mr. Allen's request pertaining to preliminary worknotes. We believe that OAG 92-90 (copy enclosed), and the authorities cited therein, are dispositive of this question. In OAG 92-90, at page 2, we stated:


It is well settled that an occupational safety and health compliance officer's work notes which are compiled in the ordinary course of an investigation of an employer work site, and which contain preliminary

handwritten drafts of possible citations and correspondence with private persons which are not intended to give notice of final action, are exempt from public disclosure pursuant to KRS 61.878(1)[(h)]. Moreover, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)[(i)]. Thus, work notes containing a compliance officer's observations, opinions, and preliminary drafts of possible citations may be withheld pursuant to KRS 61.878(1)[(h) and (i)] [recently recodified as KRS 61.178(1)(i) and (j)].


Citations omitted. We therefore conclude that the Cabinet's partial denial of Mr. Allen's request was consistent with the Open Records Act.


It is important to note that inspection of public agency records under the Open Records Act "is provided for by statute, without regard to the presence of litigation." OAG 89-65, p. 3. Thus, the Attorney General has observed:


There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880.


Id. Although the Act should not be used as a substitute for discovery, since to do so "tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide[,]" Id., the presence of litigation does not relieve a public agency of its duties under the Act. While the agency is not required to release to "any party . . . any material pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery," pursuant to KRS 61.878(1), it must comply with the Act in all other material respects.


Mr. Allen and the Labor Cabinet may challenge this decision by initiating action in the appropriate circuit

court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.














Distributed to:


Hon. James D. Allen

Stoll, Keenon & Park

201 East Main Street, Ste. 1000

Lexington, KY 40507-1380


Ms. Margaret Goodlet Miles


Labor Cabinet

1049 U.S. 127 South

Frankfort, KY 40601