RELEASE OF INSPECTION OR INVESTIGATION REPORTS BY THE DIVISION OF SAFETY OF THE DEPARTMENT OF LABOR AND INDUSTRIES

RELEASE OF INSPECTION OR INVESTIGATION REPORTS BY THE DIVISION OF SAFETY OF THE DEPARTMENT OF LABOR AND INDUSTRIES.

There is no statutory provision which specifically requires the Department of Labor and Industries through its Division of Safety to maintain reports of safety inspections or investigations and it may legally refuse to surrender such reports to unions or others having no interest in the premises inspected or investigated.

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                                                                 August 19, 1954

Honorable A. M. Johnson,Director
Department of Labor and Industries
Olympia, Washington                                                                                                 Cite as:  AGO 53-55 No. 304

Attention:  Mr. Ed Sorger, Supervisor of Safety

Dear Sir:

            In your letter of July 15, 1954, which has been previously acknowledged, you requested our opinion on whether you could legally refuse to surrender reports of inspections or investigations to unions or others holding no official capacity with the organizations inspected or investigated.  Your specific question is as follows:

            "Can we legally refuse to surrender reports on an employer's premises, containing certain recommendations for corrections and also may easily contain information involving security or patented processes, to a union, as such, in view of the fact that they are not actually parties in interest, and the sole responsibility of enforcement lies with the State Safety Division; and that the employer, under the law, is required to make whatever changes are necessary for a safe operation, upon the order received  [[Orig. Op. Page 2]] from the Safety Division, and, further, in view of the fact that in many cases, such as in the building trades, a union may have members in the employ of many different employers?"

            The answer to this question is in the affirmative.

            There is no statutory provision which specifically requires the Department of Labor and Industries to maintain reports of safety inspections or investigations and you may legally refuse to surrender such reports to unions or others having no interest in the premises investigated.

                                                                     ANALYSIS

            RCW 43.22.050 provides in part as follows:

            "The director of labor and industries, through the division of safety, shall:

           "(1) Exercise all the powers and perform all the duties prescribed by law in relation to the inspection of factories, mills, workshops, storehouses, warerooms, stores and buildings, and the machinery and apparatus therein contained, and steam vessels and other vessels operated by machinery, and in relation to the administration and enforcement of all laws providing for the protection of employees in mills, factories, workshops, and other places where machinery is used, and in relation to the enforcement, inspection, certification, and promulgation of safe places and safety device standards in all industries;

            "(2) Exercise all the powers and perform all the duties prescribed by law in relation to the inspection of * * * gas plants, electrical plants, water systems, telephone lines, telegraph lines, and other public utilities, with respect to the safety of employees, * * *."

             [[Orig. Op. Page 3]]

            RCW 43.22.310 provides in part:

            "The director or any employee of the department of labor and industries may enter any factory, mill, office, workshop, or public or private works at any time for the purpose of gathering facts and statistics as provided by this chapter, and examine into the methods of protection from danger to employees, and the sanitary conditions in and around such buildings and places and make a record thereof, * * *"

            InGrant v. Fisher Flouring Mills Company, 190 Wash. 356, it was held that three inspectors' reports certified by the department of labor and industries and introduced in evidence for the purpose of showing compliance with the "factory act" Rem. Rev. Stat., Section 7659 [cf. RCW 49.20.020], were admissible as a public record and within the exception to the hearsay rule.

            However, we do not believe this case is authority for the dissemination or release of records or reports to the public generally.  The reports in the cited case were used in defense to an action that there had been no compliance with the "factory act."

            In 20 Am. Jur. 866, Section 1027, it is stated in part:

            "According to the theory advanced by some courts, a record of a primary fact made by a public official in the performance of official duty is, or may be made by legislation, competent prima facie evidence as to the existence of that fact, but records of investigations and inquiries conducted either voluntarily or pursuant to requirement of law by public officers concerning causes and effects, and involving the exercise of judgment and discretion, expression of opinion, and the making of conclusions, are not admissible in evidence as public records.  * * *"

            RCW 40.04.010 provides as follows:

            "As used in this chapter, the term 'public document'  [[Orig. Op. Page 4]] includes the publications and reports of all state officers, commissions, boards, councils, committees, or institutions, or of any person or persons authorized or required by law to publish or render reports."

            The reports under consideration here have not been specifically defined or classified as official public records which are required to be filed by the division of safety and in our opinion do not fall within the provisions of this statute.

            InState ex rel. Price v. Peterson, 198 Wash. 490, the court on page 497, said:

            "* * * There is no provision in the act itself for making or filing any particular record, * * * Neither is there anything in the act declaring that whatever records are kept shall be public records and open to inspection of the public.  We do not think it follows that, because one is a public officer, all records and reports of such officer are public records, which the public is entitled to inspect."

            It is, therefore, our opinion that you may legally refuse to surrender reports of inspections or investigations to unions or others holding no official capacity with the organizations owning the premises inspected or investigated.

            We trust this opinion will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

BERNARD A. JOHNSON
Assistant Attorney General