NOT TO BE PUBLISHED
96-ORD-56
March 14, 1996
In re: Tammy Morgan/Kentucky Labor Cabinet
OPEN RECORDS DECISION
This appeal originated in the denial of an open records request submitted by Tammy Morgan to the Kentucky Labor Cabinet. On August 30, 1995, Ms. Morgan requested copies of all records relating to chemical exposures occurring in June and July, 1995, at Alternative Health. In a letter dated September 5, 1995, Margaret Goodlett Miles, a paralegal employed by the Labor Cabinet, denied Ms. Morgan's request. Relying on KRS 61.878(1)(g), she explained that the occupational safety and health investigative file requested by Ms. Morgan “is under submission by the compliance officer and is not completed as of this date.” She did, however, advise Ms. Morgan that all nonexempt portions of the file would be available for inspection when the Cabinet decides what action it will take.
The question presented in this open records appeal is whether the Labor Cabinet properly relied on KRS 61.878(1)(g) in denying Ms. Morgan's request. Although the Cabinet erroneously cited KRS 61.878(1)(g), [1]
that exemption authorizing the nondisclosure of “[t]est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again,” it is clear from Ms. Miles's response that she intended to cite KRS 61.878(1)(h). That exception authorizes law enforcement agencies or agencies involved in administrative adjudications to withhold records:
[T]hat were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication action.
KRS 61.878(1)(h) further states that unless they are exempted by other provisions of the Open Records Act, public records exempted under this exemption “shall be open after enforcement action is completed or a decision is made to take no action[.]” Finally, the exemption specifically provides that it “shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.” In view of this language, and the requirement that the public agency show that disclosure of the information “would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication,” we find that the Labor Cabinet failed to make the requisite showing relative to its invocation of KRS 61.878(1)(h). Although the Cabinet clearly satisfies the first part of the two part test for invoking this exception, in that it is an “agenc[y] involved in administrative adjudication,” it does not attempt to explain how disclosure of the records Ms. Morgan seeks would harm it, and therefore does not satisfy the second part of the test.
We recognize that this decision represents a significant departure from prior open records decisions in which we affirmed the Labor Cabinet's denial of requests for occupational safety and health investigative files on the same grounds Ms. Miles asserts in the present appeal. However, we believe that the language of KRS 61.878(1)(h), coupled with the statement of legislative intent codified at KRS 61.871, [2] mandates a strict interpretation of each of the exemptions, and in particular, of this exemption. Consistent with this office's policy of strict construction of KRS 61.878(1)(h), which is reflected in this office's decision in 96-ORD-37, we conclude that the Labor Cabinet did not make the requisite showing relative to the invocation of this exemption, and remand Ms. Morgan's request to the Cabinet with directions that it issue a new response within three days. If the Cabinet denies her request on the same grounds, it must show how it will be harmed by premature disclosure of the records she requests. If the Cabinet fails to respond or again fails to make the requisite showing relative to its denial, Ms. Morgan can initiate a new appeal with 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
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/1557
Distributed to:
Margaret Goodlett Miles
Labor Cabinet
Suite 4
1047 U. S. 127 South
Frankfort KY 40601
Tammy C. Morgan
8020 Candleglow Lane
Louisville KY 40214
Kembra Sexton Taylor
General Counsel
Labor Cabinet
Suite 4
1047 U. S. 127 South
Frankfort KY 40601
[1] The Labor Cabinet habitually miscites the appropriate exemption. Although it is generally clear that the error is a technical one, we remind the Cabinet that the procedural requirements of the Open Records Act “are not mere formalities, but are an essential part of the prompt and orderly processing of an open records appeal.” 93-ORD-125, p. 5. We are reluctant to find that an agency has violated the Open Records Act on a technicality, but admonish the Labor Cabinet that it should keep abreast of changes in the law, particularly where it may affect the outcome of an appeal.
[2] KRS 61.871 states:The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.