NOT TO BE PUBLISHED

95-ORD-100

July 12, 1995

In re: Braxton H. Case/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. Braxton H. Case's request to inspect certain records in the Cabinet's possession. Those records are identified as the occupational safety and health compliance officer's work notes compiled in the course of the BLC Industries, Inc., investigation. Mr. Case, who is president of BLC Industries, states that he would like to have all available information so that he may present his objections at the hearing on this matter.

In a letter dated April 25, 1995, Ms. Margaret Goodlett Miles, a paralegal employed by the Labor Cabinet, responded to Mr. Case's request. Relying on KRS 61.878(1)(g) and (h), now codified and hereinafter referred to as KRS 61.878(1)(i) and (j), Ms. Miles explained that "preliminary worknotes are the rough worknotes usually taken on the job site." She therefore declined to release those records.

The single question presented in this open records appeal is whether the Labor Cabinet properly relied on KRS 61.878(1)(i) and (j) in denying Mr. Case's request. We believe OAG 92-90 (copy enclosed), and the authorities cited therein, are dispositive of this question. In OAG 92-90, at p. 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 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)[(i)]. Moreover, work papers and intraoffice memoranda are exempt from public inspection under KRS 61.878(1)[(j)]. 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)[(i)] and [(j)].

Citations omitted.

Although the exceptions to the Open Records Act have been deemed "convenient shields which public officials may use when they desire to do so, [and] not restraints to keep them from opening up any records in their custody," OAG 79-275, at p. 3, the decision to release otherwise exempt records rests with the agency and not with the Attorney General. 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. We therefore conclude that the Cabinet's actions were consistent with the Open Records Act.

Mr. Case 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/590

Enclosure

Distributed to:

Ms. Margaret Goodlett Miles

Paralegal

Kentucky Labor Cabinet

Department of Workplace Standards

1049 U.S. 127 South

Frankfort, Ky 40601

Mr. Braxton H. Case

President

BLC Industries, Inc.

P.O. Box 14187

Louisville, KY 40214