NOT TO BE PUBLISHED

95-ORD-56

April 5, 1995

In re: R. L. Brunner/Kentucky Labor Cabinet

OPEN RECORDS DECISION

This appeal originated in the submission of a request for public records by Mr. R. L. Brunner, City Manager, Paris, Kentucky, to the Kentucky Labor Cabinet. On January 19, 1995, Mr. Brunner requested copies of "the official complaint(s) filed by City of Paris employee(s) setting forth allegations for the [November 30, 1994, Notice of Violation of KRS 337.285 issued to the City by the Cabinet]." On behalf of the Labor Cabinet, Ms. Margaret Goodlett Miles, Paralegal, partially denied Mr. Brunner's request. Although she released the contents of the Division of Employment Standards and Mediation investigative file, she withheld the complaint which initiated the investigation. In support of this partial denial of Mr. Brunner's request, Ms. Miles cited KRS 337.345.

The issue presented in this appeal is whether the Kentucky Labor Cabinet violated the Open Records Act in partially denying Mr. Brunner's request. For the reasons set forth below, we conclude that although her response was procedurally deficient, the Cabinet properly denied that portion of his request.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides in part:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.

Although Ms. Miles cited KRS 337.345 in support of the Cabinet's denial of Mr. Brunner's request, she failed to cite KRS 61.878(1)(l), the open records exception which incorporates all enactments of the General Assembly which prohibit or restrict disclosure of, or otherwise make confidential, public records or information. We urge the Cabinet to review the cited provision to insure that future responses conform to the Open Records Act.

Turning to the substantive issue in this appeal, we find that the Cabinet properly withheld the complaint which initiated its investigation into alleged violations of KRS 337.285. KRS 337.345 provides:

Except as otherwise provided in this section, the cabinet shall not disclose the identity of any individual filing a complaint or request for inspection under any section of this chapter, except as necessary to enforce, and then only with the specific written permission of the complainant.

Except as otherwise provided in this section, information secured from inspection of the records, or from the transcriptions thereof, or from inspection of the employer's premises by the secretary or his authorized representatives, shall be held confidential and shall not be disclosed or be open to any person except such information may be made available to:

(1) Officials concerned with, and for the purposes of administration of the laws relating to matters under the jurisdiction of the secretary;

(2) Any agency of this or any other state, or any federal agency for the purpose of enforcing KRS 337.275 to 337.325, and 337.385 to 337.405;

(3) To the Wage and Hour and Public Contracts Division of the United States, Labor Cabinet.

As noted, this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which authorizes the nonrelease of "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."

This is not an occasion when we must assess the competing interests or weigh the equities. KRS 337.345 is clear on its face. The Cabinet is prohibited from releasing the complaint which initiated its investigation into the City of Paris's violation of wage and hour laws. Indeed, we question the propriety of releasing the remainder of its files to the City in view of the language of KRS 337.345, paragraph two. However, it is not generally appropriate for the Attorney General to admonish a public agency for releasing records which it might have withheld, but to declare what documents the agency may not withhold. OAG 79-275. We therefore conclude that the Kentucky Labor Cabinet did not violate the Open Records Act in partially denying Mr. Brunner's request.

Mr. Brunner 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 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/164

Distributed to:

Ms. Margaret Goodlett Miles

Paralegal

Kentucky Labor Cabinet

Department of Workplace Standards

1049 U.S. 127 South

Frankfort, Ky 40601

Mr. R. L. Brunner

City Manager

City of Paris

525 High Street

Paris, KY 40361