NOT TO BE PUBLISHED
April 14, 1997
In re: G. Lindsay Simmons/Labor Cabinet
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky Labor Cabinets partial denial of the open records request of G. Lindsay Simmons, Esq., Jackson & Kelly, to inspect certain records in the Cabinets possession. Initially, Mr. Simmons requested to review the Cabinets complete Inspection File relating to the Phelps Dodge Magnet Wire Company.
By letter dated September 24, 1996, Ms. Margaret Goodlett Miles, Paralegal, on behalf of the Cabinet, partially denied Mr. Simmonss request, stating:
All material is releasable, with the exception of the preliminary worknotes, the release of which is exempted pursuant to KRS 61.878(1)(j), to wit: preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. Also any information identifying the complainant has been removed pursuant to KRS 338.101(a).
By letter dated October 11, 1996, James G. Zissler, Esq., Jackson & Kelly, requested a list of all documents, and all other items, withheld and the reason they were withheld in the open records request.
By letter dated October 15, 1996, Ms. Miles, citing KRS 61.878(1)(i) and (j) and KRS 338.101(1)(a), identified the records withheld as preliminary worknotes, preliminary memoranda and information identifying employees contacted.
By letter date dated February 26, 1997, Ms. Lori Barker Sullivan, Counsel with the Cabinet, more specifically identified the documents withheld as follows:
1. Memorandum of Boyce Stapp, Inspector, dated August 13, 1996 (5 pages):
2. General file information sheet containing name, address and telephone number of Complainant, undated, typed (1 page);
3. General file information sheet containing name, address and telephone number of Complainant, undated, handwritten (1 page);
4. General file information sheet containing name, address and telephone number of Complainant, undated, handwritten (copy) (1 page);
5. List of employees contacted (2 pages); and,
6. Rough work notes of Boyce Stapp, Inspector (53 pages).
Mr. Simmons and L. Joseph Ferrara, Esq., Jackson & Kelly, counsel for Phelps Dodge, appeal the Cabinets withholding of Inspector Stapps Memorandum of August 13, 1996 and his 53 pages of rough notes. In support of their argument that the Cabinet improperly withheld these two documents, they state that they seek only the factual descriptions, observations, records, etc., expressed in these two documents by the inspector in relation to his inspection and the enforcement actions taken. They argue that the relevant exemptions from disclosure under the Open Records Act are not absolute, are qualified in nature, and do not extend to factual material.
The issue presented in this appeal is whether the Cabinets partial denial of the request by withholding access to the Inspectors Memorandum and rough notes was consistent with the Open Records Act. For the reasons which follow, we conclude the Cabinets actions were proper and consistent with provisions of the Act.
In OAG 92-90, at p. 2, this office stated:
It is well settled that an occupational safety and health compliance officers work notes which are compiled in the ordinary course of an investigation of an employer work site, and which contained 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)(g) [now codified as KRS 61.878(1)(i)]. Moreover, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)(h) [now codified as KRS 61.878(1)(j)]. Thus, work notes containing a compliance officers observations, opinions and preliminary drafts of possible citations may be withheld pursuant to [KRS 61.878(1)(i) and (j)].
Although the exceptions to the Open Records Act do not prevent agencies from choosing to release records in their custody, the decision to release otherwise exempt records rests with the agency and not with the Attorney General. 92-ORD-1233. It is for the Labor Cabinet to exercise its discretion in deciding whether to release all of the information in its files or to withhold some of the information under one of the exceptions. Accordingly, the Cabinets denial of access to the investigators rough notes and preliminary memoranda was consistent with the Open Records Act and prior opinions of this office.
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.
A. B. Chandler III
James M. Ringo
Assistant Attorney General
C. Lindsay Simmons
Jackson & Kelly
2401 Pennsylvania Avenue N.W.
Washington, D. C. 20037
Lori Barker Sullivan
Office of Counsel
Kentucky Labor Cabinet
U. S. Hwy. 127 Fourth
Frankfort KY 40601