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KENTUCKY OPEN RECORDS LAW
As of July 12, 2006
61.870 Definitions for KRS 61.872 to 61.884
As used in KRS 61.872 to 61.884, unless the context requires otherwise:
(1) "Public agency" means:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection;
(2) "Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority;
(3) (a) "Software" means the program code which makes a computer system function, but does not include that portion of the program code which contains public records exempted from inspection as provided by KRS 61.878 or specific addresses of files, passwords, access codes, user identifications, or any other mechanism for controlling the security or restricting access to public records in the public agency's computer system.
(b) "Software" consists of the operating system, application programs, procedures, routines, and subroutines such as translators and utility programs, but does not include that material which is prohibited from disclosure or copying by a license agreement between a public agency and an outside entity which supplied the material to the agency;
(4) (a) "Commercial purpose" means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
(b) "Commercial purpose" shall not include:
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties;
(5) "Official custodian" means the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control;
(6) "Custodian" means the official custodian or any authorized person having personal custody and control of public records;
(7) "Media" means the physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards; and
(8) "Mechanical processing" means any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.
HISTORY: 1994 c 262, § 2, eff. 7-15-94; 1992 c 163, § 2, eff. 7-14-92; 1986 c 150, § 2; 1976 c 273, § 1
NOTES OF DECISIONS AND OPINIONS
In general 1
Purpose 2
Public agencies 3
Public agencies - Interagency body 3a
Public agencies - Funding at twenty-five per cent 3b
Public agencies - Utilities 3c
Public agencies - Reformatory 3d
Public agencies - University 3e
Public agencies - Associations and commissions 3f
Public agencies - Agents of public agencies 3g
Public agencies - Contract or lease with public agency 3h
Public agencies - Governmental cabinets and departments 3i
Not public agency 4
Not public agency - Foundations and fraternities 4a
Not public agency - Private college 4b
Not public agency - Corporations 4c
Public records 5
Public records - Disciplinary records 5a
Public records - Police, jail records 5b
Public records - Birth and death records 5c
Public records - Photos, tape recordings 5d
Public records - Autopsy or inquest 5e
Public records - Bail bonds 5f
Public records - Health inspection records 5g
Public records - Minutes of public agencies 5h
Public records - School and license tests and records 5i
Public records - Final agency action 5j
Public records - Employment records 5k
Exemptions 6
Exemptions - Law enforcement 6a
Exemptions - Court agency 6b
Exemptions - Patient medical records 6c
Exemptions - Privacy 6d
Exemptions - Statutory exemption 6e
Custodian 7
Request 8
Procedure 9
1. In general
Insurance commissioner and court-appointed rehabilitator for insolvent insurance company are not one and the same, for purposes of determining whether insurance records that fall into his hands are subject to Kentucky Open Records Act, even though insurance commissioner acts as both commissioner and rehabilitator. Kentucky Cent. Life Ins. Co. By and Through Stephens v. Park Broadcasting of Kentucky, Inc. (Ky.App. 1996) 913 S.W.2d 330. Records 51
Publishing company employees wanting to obtain all United States district court tax opinions and final orders involving the tax division of the department of justice, who have become frustrated with the difficulty of obtaining copies of cases from court clerks, have a right under the Freedom of Information Act, 5 USC 552(a)(4)(B), to obtain copies from the tax division since the copies are "agency records" subject to disclosure, notwithstanding the fact they are also available from their original sources, the courts, and because the papers fall within none of the statute's exemptions. U.S. Dept. of Justice v. Tax Analysts (U.S.Dist.Col. 1989) 109 S.Ct. 2841, 492 U.S. 136, 106 L.Ed.2d 112.
Records maintained by a golf professional having a lease agreement with a city golf course, which are not audited by the city and for which the golf course receives no financial benefit, are not public records under KRS 61.870(2) and thus are not subject to the Open Records Act. OAG 91-15.
A public record must be made available for public inspection to all members of the public if it is so provided to any member of the public. OAG 89-23.
A governmental agency may withhold from public inspection a document that would otherwise be a public record subject to inspection where such document is the subject of a protective order of confidentiality issued by a circuit court. OAG 89-22.
Public access to depositions in a civil case is governed by the Rules of Civil Procedure, not by the open records law, and a reporter does not have a right to attend a deposition hearing held in a private office. A reporter can publish information received from any source. A deposition may be ordered sealed for good cause by a court. OAG 80-353.
The naming of persons to the honorary post of deputy sheriff is not an official function of the sheriff's office but is a personal activity and therefore is not subject to the strictures of the Open Records Act. OAG 76-655.
An ambulance service is not required to release the names of patients under the Open Records Act, but neither is there any law against releasing the names. OAG 76-568.
Under the open records law, work papers of public accounts auditors are public records. OAG 76-204.
2. Purpose
City ordinance providing that employees have no right or reasonable expectation of privacy in use of electronic mail and that "all messages are subject to the Open Records Act" did not mandate disclosure of e-mails between mayor and city council concerning preliminary discussions involving what course of action should be taken in regard to controversy pertaining to apparent irregularities in finances of local convention center; phrase "subject to the Open Records Act" was much less stringent than "shall be disclosed under the Open Records Act." Baker v. Jones (Ky.App. 2006) 2006 WL 141484. Records 54
At its most basic level, purpose of disclosure under Open Records Act focuses on citizens' right to be informed as to what their government is doing. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 52
The obvious purpose of the open records law is to make available for public inspection all records in the custody of public agencies by whatever label they have at the moment, and punctuation alone is not a proper basis for ascertaining legislative intent; therefore, the phrase "or agency thereof" in KRS 61.870(1) is applicable to all units of government listed before it in the same subsection, and it is clear that the Kentucky state university foundation is a public agency subject to the Open Records Act. Frankfort Pub. Co., Inc. v. Kentucky State University Foundation, Inc. (Ky. 1992) 834 S.W.2d 681.
3. Public agencies
3A. Interagency body
Because the Kentucky Tobacco Settlement Trust Corporation is a public agency within the meaning of KRS 61.870(1)(f), its reliance on KRS 61.870(2) as the basis for denying a request for records relating to Phase II payments made to Kentucky was misplaced; if the Corporation maintains responsive records, it must produce those records unless it can articulate a basis for denying access in terms of the exemptions codified at KRS 61.878(1)(a) through (l). OAG 04-ORD-214 (10-14-03).
The Kentucky association of counties reinsurance trust program and unemployment compensation self-insurance fund are public agencies for purposes of the Open Records Act insofar as each is constituted as an interagency body of two or more public agencies within the meaning of KRS 61.870(1)(k). OAG 93-65.
Programs administered by the Kentucky association of counties, being interagency bodies of two or more public agencies, are "public agencies" within the meaning of KRS 61.870(1)(k). OAG 92-ORD-1232 (11-12-92).
3B. Funding at twenty-five per cent
Based on the evidence of record, Kentucky Baptist Homes for Children, Inc., derives at least twenty-five (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds," as required by KRS 61.870(1)(h), and therefore, is a public agency" for purposes of the Open Records Act; because the subject request is properly characterized as a request for information rather than specifically described public records, however, and public agencies are not required to compile information or create a record to satisfy an open records request, KBHC did not violate the Act in declining to create a responsive record. 04-ORD-111 (7-20-04).
Three of the five third party administrators which provide administrative services for programs of the Kentucky association of counties are public agencies for purposes of the Open Records Act insofar as they receive 25% or more of their funds from state or local authorities. OAG 93-78.
An agency is a "public agency" for purposes of the Open Records Act and must comply with the requirements thereof when it derives more than twenty-five per cent of its funds from state authority. OAG 90-63.
Emergency Ambulance Service, Inc is a public agency for purposes of the Open Records Act because it receives more than twenty-five per cent of its funds from a local authority, the Boyd county emergency ambulance service district. OAG 90-59.
North Central Comprehensive Care Center, Inc, is a public agency for the purpose of the Open Records Law since it derives at least twenty-five per cent of its revenue from state grants and contracts for services. Its five dollar fee for copies of the initial one to five pages of public records appears to be unreasonable and in excess of actual cost. The attorney general's office is not statutorily directed to enforce the provisions of the Open Records Law. Any action for recovery of excessive fees paid prior to the issuance of this opinion must be made in the circuit court. OAG 84-300.
A volunteer fire department which contracts with cities for fire fighting services and which receives at least twenty-five per cent of its funds from such contracts is a public agency under the open records law (KRS 61.870 to 61.884). OAG 80-633.
The governmental services corporation is a public agency for purposes of the Open Records Law because it receives at least twenty-five per cent of its funds from state or local authorities. OAG 94-ORD-13 (2-1-94).
Because it receives at least 25% of its funds from state or local authorities, the Kentucky association of counties falls within the parameters of KRS 61.870(1)(h), and is subject to the Open Records Act. OAG 93-ORD-96 (8-19-93).
3C. Utilities
The Lebanon waterworks company is a public agency within the meaning of KRS 61.870(1) and, thus, is subject to the terms and provisions of the Open Records Act. OAG 88-72.
A water district is a public agency subject to the open records law. OAG 77-291.
3D. Reformatory
A reformatory is a "public agency" within the meaning of the open records law, and a prisoner has the right to obtain a copy of his account record at the reformatory so long as he pays a reasonable copying fee. Friend v. Rees (Ky.App. 1985) 696 S.W.2d 325.
3E. University
The University of Louisville did not violate the Open Records Act by denying a request for a list of the names and permanent addresses of incoming freshman and transfer students from a company that wishes to develop a mailing list so it can engage in a commercial enterprise of mailing notices for and on behalf of other parties who pay for the service; no public purpose has been cited that would be advanced by the disclosure, and the commercial purpose does not outweigh the invasion of students' privacy which would result. 05-ORD-111 (6-7-2005).
The University of Kentucky Police Department did not meet its statutory burden of proof in partially denying a request for eight incident reports identified by case number by redacting all personal information on the victims, since a long line of precedent dating back to 1976 and affirmed by the Kentucky Court of Appeals as recently as October 2003, states that a law enforcement agency violates the Open Records Act by engaging in the practice of withholding all victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure predicated not on the complainant's expressed wishes but on factors such as the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the victim of further disclosure; the availability of some of the information found in these incident reports on its separately mandated website does not relieve the University Police of its duties under the Open Records Act. 04-ORD-188 (10-15-04).
The Kentucky State University Foundation, Inc., is a recognized fund-raising instrumentality of Kentucky State University and thus a public agency within the meaning of KRS 61.878(1), and therefore subject to the provisions of the Open Records Act. OAG 89-92.
Records in the custody of the University of Louisville pertaining to the University of Louisville foundation, a private corporation, are subject to inspection under the open records law. OAG 81-2.
The Kentucky community and technical college system improperly denies a request for records generate by the president's cabinet, leadership team and employee teams on the basis that no public records exist because these entities are not public agencies for open meetings and open records purposes, and records that are prepared, owned, used, in the possession of or retained by the Kentucky community and technical college system are public records within the meaning of KRS 61.870(2) and must be disclosed unless otherwise exempt. OAG 02-ORD-147 (8-13-02).
3F. Associations and commissions
A city-county human rights commission created under KRS 344.310 is a "public agency" as the term is defined in the open records law. OAG 84-376.
The self-insurance fund administered by the Kentucky association of counties is a "public agency" within the meaning of KRS 61.870(1)(k). OAG 92-ORD-1245 (11-12-92).
3G. Agents of public agencies
County attorney, by virtue of his election to participate in program in which state sought to reduce welfare rolls by collecting child support payments for welfare recipients, acted as agent of State Cabinet for Human Resources with respect to administration of program, and to that extent was subject to Kentucky Open Records Act with respect to requests for disclosure of documents relating to program. Edmondson v. Alig (Ky.App. 1996) 926 S.W.2d 856. Records 51
The City of Windy Hills subverted the intent of the Open Records Act, short of denial of inspection, by mischaracterizing records maintained for it by its contract attorney as non-public records of the private attorney because they are located in the attorney's private offices, and requiring the requester to conduct an inspection of these records there; public records in the custody of a private agent are subject to public inspection unless properly excluded under one or more of the exceptions codified at KRS 61.878(1)(a) through (l), and it is reasonable to require their production on city premises. 04-ORD-123 --(8-6-04).
3H. Contract or lease with public agency
Private, nonprofit corporation that received funds obtained through imposition by County Fiscal Court of one percent occupation tax in county, and then, pursuant to contract with County Fiscal Court, cities, and county Industrial Development Authority, paid such funds to employer as part of program to attract employer to open facility in county, was "public agency" subject to provisions of Open Records Act; nonprofit corporation was not merely escrow through which funds passed, but rather nonprofit corporation had number of obligations under contract, including receipt, and verification of, employment certification of employer's performance. Citizens for a Better Environment, Inc. v. Ohio County Industrial Foundation, Inc. (Ky.App. 2004) 156 S.W.3d 307. Records 51
The parks department acts inconsistently with the Open Records Act in withholding from inspection an annual audit of a corporation under contract with the department; the audit is not "proprietary information" under KRS 61.878(1)(b), and is a public record because it is mandatory under a departmental regulation and remains in the department's possession per KRS 61.870(2). OAG 91-72.
The insurance department improperly denies a request for documents revealing the identities of bidders for an insurance company under court ordered rehabilitation. OAG 93-ORD-113 (10-7-93).
3I. Governmental cabinets and departments
The Kentucky labor cabinet is a "public agency" as defined in KRS 61.870(1); thus, public inspection of its records is governed by the Open Records Act and not by the federal Freedom of Information Act. OAG 88-9.
A district health department is a public agency under the Open Records Law and its records are public records. A report on a hepatitis outbreak is a public record but may come under one of the exceptions to mandatory disclosure. Inspection reports of the health department are open to public inspection. OAG 83-235.
Kentucky Export Resources Authority, Inc., although a nonstock, nonprofit corporation involved in export coal marketing, was being run by Kentucky department of energy personnel, and the operating expenses of the corporation were being paid by that department; therefore, the corporation was a public agency under the open records law. OAG 82-277.
4. Not public agency
4A. Foundations and fraternities
A university properly advises a requesting party that records of interfraternity and panhellenic councils are not public records inasmuch as the councils are not public agencies and do not derive twenty-five per cent of their funds from state or local authorities. OAG 92-62.
The Kentucky educational foundation is not a public agency and does not appear to derive at least twenty-five per cent of its funds from state or local authority; therefore, a request to inspect documents of the foundation was properly denied. A request to inspect records of the state department of education concerning actual contributions, expenditures, and services rendered by the department to the Kentucky educational foundation was improperly denied because a public agency is involved. OAG 84-382.
4B. Private college
A private college that does not receive any grants or loans from the Kentucky higher education assistance authority is not a public agency subject to the terms and provisions of the Open Records Act, and thus the college acts properly in denying a request to inspect its records and documents. OAG 88-61.
4C. Corporations
The decision adopting 04-ORD-222 and holding that Ballard County Economic and Industrial Development Board, Inc. was not a public agency in fiscal year July 31, 2004, through June 30, 2005, because it did not receive any state or local authority funds in the fiscal year; because the state funds received in the previous year were no doubt expended in subsequent fiscal years, the Board is obligated to disclose records documenting these expenditures notwithstanding the fact that it received no state or local funds in those subsequent years. 05-ORD-151 (7-19-2005).
Kentucky Alternative Programs II, Inc. does not qualify as a public agency within the meaning of KRS 61.878(1), since it does not derive any of its funding from state or local authority funds or otherwise qualify as a public agency for purposes of the Open Records Act and therefore cannot be said to have violated the Act in refusing to honor a request to inspect and copy specified records. 05-ORD-012 (2-2-05).
Although the Ballard County Economic and Industrial Development Board, Inc., possesses many of the attributes associated with industrial development authorities which derive their existence from KRS 154.50-301 through 154.50-326, the Local Industrial Development Authority Act, the record on appeal confirms that it is a private nonprofit corporation and is not a public agency within the meaning of KRS 61.870(1)(a) through (k) and therefore is not subject to the Open Records Act, and is not obligated to a records request. 04-ORD-222 (11-23-04).
Third Street Development Corporation did not provide sufficient proof to establish that it is not a public agency to the extent that it expended or retains any portion of $960,000 to $975,000 it received from the state through the City of Danville in 2001. OAG 04-ORD-012 (1-20-04).
A private corporation is not a public agency, and bidding documents in its possession are not public records. OAG 91-184.
A nonprofit corporation created pursuant to KRS Ch 273 is not a public agency subject to the open meetings or open records laws. OAG 84-237.
A nonprofit corporation providing mental health services to the community is not a public agency under the Open Meetings Act and is not subject to the constraints on closed sessions of public meetings set forth in the Open Meetings Act. OAG 96-OMD-180 (8-22-96).
A professional service corporation engaged in the practice of medicine is not subject to the Open Records Act although it uses the facilities of Humana Hospital University of Louisville, its employees are also employed by the University of Louisville, and it receives reimbursement for professional services from medicare and medicaid. OAG 93-ORD-90 (8-5-93).
5. Public records
5A. Disciplinary records
Remand was necessary to determine inmate's costs in bringing declaratory judgment action, even though action was dismissed as moot when allegedly improper discipline was expunged, where inmate was not provided with copies of disciplinary records as required by Open Records Act, and inmate was entitled to filing fee, postage, and copy costs in prosecuting Act violation before trial court and on appeal. Blair v. Hendricks (Ky.App. 2000) 30 S.W.3d 802, rehearing denied. Declaratory Judgment 395
Inmate was improperly denied copies of public records under Open Records Act, including prison disciplinary committee records, where inmate claimed that he was improperly punished, and sought records for use in declaratory judgment action challenging punishment. Blair v. Hendricks (Ky.App. 2000) 30 S.W.3d 802, rehearing denied. Records 52
Failure to provide inmate with copies of prison disciplinary committee records was harmless error, and thus inmate was not entitled to discretionary fine for violation of Open Records Act which occurred when inmate was not given copies of records, where entire disciplinary proceeding was expunged from inmate's record, and no proof was presented showing that agency's actions were wilful or that failure damaged inmate in any way, and where warden merely made good faith denial of records. Blair v. Hendricks (Ky.App. 2000) 30 S.W.3d 802, rehearing denied. Records 63; Records 68
The Education Professional Standards Board did not subvert the intent of the Open Records Act by imposing excessive fees on commercial use of public records; KRS 61.874(4)(a) supports the imposition of an hourly rate for staff time expended in the production of records responsive to a request (not just staff time spent at the copying machine reproducing copies), and the Board amply documented the allocation of staff resources to production of records. OAG-04-ORD-054 (4-2-2004).
Documents of complaints against physicians and investigations of those complaints may be withheld from public inspection unless a formal complaint is made by the licensure board against the physician and until final action has been taken on the complaint. If the board takes no action on the complaint, the documents remain confidential. OAG 82-263.
Records of disciplinary actions of the state board of medical licensure are open to public inspection. However, preliminary records such as complaints, charges and personal correspondence would be exempt under KRS 61.878(1)(g). OAG 77-55.
5B. Police, jail records
Under Open Records Act, prison inmate has the same right to inspect public records as any other person, and thus public agencies are required to supply copies of records to prison inmates upon request. Blair v. Hendricks (Ky.App. 2000) 30 S.W.3d 802, rehearing denied. Records 52
Newspaper was not "party" in litigation involving prison inmate, and thus Open Records Act provision exempting from inspection by any party of any materials pertaining to civil litigation was inapplicable to records pertaining to inmate's job assignments and disciplinary reports and documents requested were open for inspection by newspaper pursuant to Open Records Act. Department of Corrections v. Courier-Journal and Louisville Times (Ky.App. 1996) 914 S.W.2d 349. Records 52
Portions of police tape recordings of hostage situations, not specifically exempted by provisions of KRS 61.878(1), are subject to public inspection requirements of the Open Records Act. OAG 90-56.
A public agency's denial of a request to inspect or copy the written confession of a juvenile is proper. OAG 86-85.
The business records of a jail are open to public inspection. OAG 79-575.
"Police blotter" and "incident reports" are open to public inspection. OAG 77-102.
Police records are open to public inspection as prosecution is completed or a decision has been made not to prosecute; exceptions are information which will reveal a confidential informant, information of a personal nature, information which may endanger the life of a police officer, or information which may be used in prospective law enforcement action. OAG 76-424.
A decision overruling OAG 76-655 and holding that the decision does not provide a legally sufficient basis for denying requests for records containing the names of special deputies appointed by the sheriff and the law enforcement training they have received. OAG 02-ORD-175 (10-2-02).
The denial of computerized criminal records data on felony dispositions is improper because an inmate has reduced expectations of privacy in information relating to the inmate. OAG 00-ORD-206 (10-31-00).
5C. Birth and death records
The Kentucky register of births and deaths is a public record and must be made available for public inspection. OAG 91-25.
Death certificates are not exempt from public inspection under the Open Records Law. (Annotation from former KRS 213.180.) OAG 81-400.
5D. Photos, tape recordings
Tape recordings of meetings of a county board of education are public records within the meaning of KRS 61.870(2). OAG 89-93.
A tape recording of police radio transmissions on a given frequency is a public record. OAG 89-11.
A tape recording of a hearing on the termination of a teacher's contract produced by a public agency is a public record. OAG 87-62.
A public agency's denial of a request to inspect and obtain copies of photographs of an accident scene revealing a corpse, is improper as the agency cannot invoke the privacy exemption to public inspection to impose a uniform ban on all requests for photographs revealing corpses since, generally, privacy is a personal right which dies with the deceased person. OAG 86-31.
An identification photograph made by police when a person is arrested and booked should be made available for public inspection. If no new photograph is made because the police already have a photograph, then that photograph should be made available for public inspection and copying. OAG 83-212.
5E. Autopsy or inquest
A coroner's autopsy report may be withheld from public inspection while prosecution of a crime is pending. A coroner's inquest verdict is open to public inspection. OAG 82-458.
5F. Bail bonds
Cancelled bail bond checks drawn on a public account are public records as prepared and owned by a public agency. OAG 89-35.
5G. Health inspection records
Records of health inspections made by local health departments are public records and subject to the provisions of Kentucky's open records law. OAG 77-587.
Restaurant inspection records made by county health departments are public records and hence subject to the provisions of the open records law. OAG 77-585.
5H. Minutes of public agencies
With the exceptions noted, Lincoln County High School violated the Open Records Act in denying a request for faculty meeting agendas, minutes of meetings, and meeting schedules on the basis that this office had previously concluded that faculty meeting are not subject to the Open Meetings Act; the previous decision was limited to an analysis of the faculty's obligations and cannot be construed to relieve the high school of its statutory obligations as a public agency under the Open Records Act. OAG-04-ORD-098 (6-24-2004).
The City of Corydon violated the Open Records Act in denying a request for a tape of a public meeting on the basis of KRS 61.878(1)(i); destruction of public records prior to the expiration of the retention period is indicative of improper records management practices and the decision is referred to the Department for Libraries and Archives for further inquiry as that agency deems appropriate. 03-ORD-173 (7-22-03).
KRS 61.835 governs inspection of minutes from meetings of public agencies, is outside the open records statutes, and requires that the meeting minutes be available for public inspection "at reasonable times no later than immediately following the next meeting of the body"; therefore, a county board of education violates that statute in delaying inspection of minutes of certain board meetings until the return of the superintendent several working days after receipt of a request to inspect those minutes, and the board should institute a procedure to allow inspection of records even in the absence of the superintendent. OAG 89-98.
A city is required to accurately record the minutes of its meetings and make such records available for public inspection not later than immediately following its next meeting and is further required to provide a requesting party with either an itemized list of receipts and expenses or with an explanation as to what specific exception is being relied upon in denying the request. OAG 86-20.
A public agency speaks through its minutes and such minutes are public records under the open records law. OAG 77-464.
5I. School and license tests and records
Class and grade statistical reports of the Comprehensive Tests of Basic Skills (CTBS) given by the Jefferson county school district to all third, fifth, seventh and tenth grade students for the 1982-83 school year are open to inspection since the reports do not readily identify any student and have already been compiled and given out to the schools. OAG 83-371.
A student at the police academy who failed to graduate is entitled to a copy of his transcript. OAG 83-108.
There is no legal prohibition against releasing the scores on examinations administered by the Kentucky board of pharmacy to applicants for a pharmacist license under KRS 315.050. OAG 76-573.
A school district's search for responsive databases showing the academic records of student athletes must be thorough and reasonable, failure to conduct an adequate search is violative of the Open Records law. OAG 02-ORD-120 (6-21-02).
The medical licensure board improperly denies a request for an updated version of the Kentucky medical directory in an electronic format when such data exists in separate files than were specified in the request; the fact that the requester acknowledged his commercial purpose is relevant only as to the fee to be charged for copy and the requirement of a certified statement of purpose and contract. OAG 95-ORD-12 (2-2-95).
Jefferson county public schools reliance on the federal Family Educational Rights and Privacy Act to deny access to the acceptance forms for traditional school kindergarten enrollment improper as protection under the act apply only to students in attendance; the public's interest in insuring that the requirements for participation in the programs are fully and fairly enforced outweigh the parents' interests in the acceptance forms. OAG 00-ORD-119 (6-8-00).
5J. Final agency action
An agency's denial of a request to inspect reports of an in-house investigation of the division of real property and an individual was proper under the Open Records Act pursuant to KRS 61.878(1)(g)(h) so long as the requested reports neither indicate final agency action nor involve preliminary reports incorporated into a final agency report. A request to inspect items listed on a bill of sale was properly denied because such items are not public records as defined in KRS 61.870(2). OAG 85-61.
Decision of appeals referee in an unemployment insurance claim case is a public record and open to public inspection as evidence of final agency action. Denial response not following mandate of KRS 61.880 is inadequate to deny request for inspection. OAG 83-352.
Records concerning the purchase of property for a right-of-way and the relocation assistance payments made to the owners as part of the purchase price are open to public inspection. As purchases already made and public moneys already spent, these records are not exempted as an unwarranted invasion of personal privacy or as a preliminary matter. The purchase is also not exempted by KRS 61.878(1)(d) since the purchase and payments in this instance are final. OAG 83-298.
5K. Employment records
Financial records and other pertinent documents filed with the workers' compensation claims department by self-insurance groups are public records and are not exempt from public inspection by KRS 61.878(1)(b), 61.878(1)(g), or 61.878(1)(h). OAG 89-26.
If a "position control report" is merely a listing of budgeted employment positions, amount budgeted for each position, and identity of persons employed in each position, such a document is a public record subject to public inspection. Regardless of the nature of the position control report, a denial of a request of one public agency to inspect the records of another public agency was in violation of KRS 61.878(4), if the request was made for legitimate governmental purposes. OAG 85-94.
The financial disclosure forms filed by Louisville officers and employees as required by an order of the mayor are public records open to public inspection pursuant to the open records law. KRS 61.878(1)(a) does not exclude inspection on the basis of privacy. Additionally, the mayor's order directing that the forms are not public records carries no weight in face of KRS 61.870(2). OAG 84-320.
A report of the polygraph test taken by an applicant for employment by a city is open to public inspection if the applicant is later employed by the city. A city councilman, like any other person, has standing to inspect such public records. Kentucky courts, however, have not considered polygraph test results sufficiently reliable to be admissible as evidence. OAG 82-518.
An open records request that requests personnel files that contain a mixture of exempt and nonexempt records is properly denied because it is incumbent on the requester to specify the particular documents within such files to be inspected. OAG 97-ORD-66 (4-17-97).
6. Exemptions
6A. Law enforcement
Open Records Act exemption for law enforcement agencies or agencies involved in administrative adjudication did not apply to state university's response to inquiry by collegiate athletic association into rules violations; university was not a law enforcement agency, and collegiate association, a private regulatory entity, was the only "agency" involved in administrative adjudication, and exemption only applied after enforcement action was completed or decision was made to take no action. University of Kentucky v. Courier-Journal & Louisville Times Co. (Ky. 1992) 830 S.W.2d 373. Records 57; Records 60
Information which if prematurely released would impede effective law enforcement is exempted from public inspection as an exception under the open records law. An auditor's report which reveals possible violations of statutes or regulations by a city employee which may lead to criminal prosecution is exempt until prosecution is completed or a decision is made not to prosecute. OAG 76-633.
6B. Court agency
Rehabilitator who was appointed for insolvent insurance company was not "public agency" within meaning of Kentucky Open Records Act, and, thus, records that were made by or generated for rehabilitator were within court's exclusive jurisdiction and were not public records under the Act. Kentucky Cent. Life Ins. Co. By and Through Stephens v. Park Broadcasting of Kentucky, Inc. (Ky.App. 1996) 913 S.W.2d 330. Records 51; Records 54
Based upon KRS 26a.200, KRS 26a.220, and Ex Parte Farley, it is the decision of this office that CASA is not a "public agency" within the meaning of KRS 61.870(1), and is therefore not bound by the provisions of the Open Records Act; --i in addition, CASA officials and volunteers must keep confidential all information contained in records of the type requested "except in conferring with or reports to the court ..." pursuant to KRS.620.505(8), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), and accordingly the CASA program of Bracken, Fleming, and Mason Counties, Inc. did not violate the Act. 05-ORD-004 (1-10-05).
The Kentucky Bar Association is an agency of the court and not a "public agency;" thus its records are exempt from public inspection, and would be so even if it were a public agency by operation of KRS 61.878(1)(j) and 26A.200. OAG 91-47.
The judicial retirement and removal commission is an agency of the court and not a "public agency;" thus it is not subject to provisions of the Open Records Act or the Open Meetings Act. OAG 91-45.
6C. Patient medical records
Patient medical records maintained by county hospital were not "public records" within meaning of Open Records Act, so that Act's provision governing fees for making copies of public records did not apply to patient records; patient records were not related to functioning of hospital, activities carried on by hospital, its programs, or its operations, and patients of publicly owned hospital had just as great an expectation that their medical records would not be subject to public scrutiny as patients of private hospitals. Hardin County v. Valentine (Ky.App. 1995) 894 S.W.2d 151. Records 54
The records of comprehensive care centers are public records under the open records law, but the records which identify a patient and describe his medical condition are confidential under the law. OAG 76-420.
6D. Privacy
Information contained in a public record is no less private, for purposes of the exemption from disclosure under the Open Records Act, simply because that information is available someplace. Cape Publications v. City of Louisville (Ky.App. 2003) 147 S.W.3d 731, review denied. Records 58
Once a protectable privacy interest in information contained in a public record is established, proper application of the Open Records Act requires a comparative weighing of the antagonistic interests: the privacy interest versus the policy of openness for the public good. Cape Publications v. City of Louisville (Ky.App. 2003) 147 S.W.3d 731, review denied. Records 58; Records 64
Disclosure of information about injured workers contained in "Employer's First Report of Injury" forms, as submitted to Department of Workers' Claims under Workers' Compensation Act, would constitute "clearly unwarranted invasion of personal privacy" under Open Records Act, and thus information was exempt from disclosure under Act, since privacy interests of injured workers in personal details appearing on forms substantially outweighed negligible Open Records Act related public interest in disclosure. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58; Records 64; Workers' Compensation 1255
Work Plan Performance Review and Observation Log is a public record, but is exempt from public inspection as a protection against an unwarranted invasion of personal privacy and as a preliminary memoranda wherein opinions are expressed. Although person requesting inspection is the subject of a document, she cannot waive the right of privacy concerning it since the privacy exemption also extends to the creator of a document. OAG 83-278.
The fact that a child abuse complaint was made prior to the death of a child is confidential under the Battered Child Act. OAG 82-39.
An alderman's correspondence is not a "public record." OAG 79-496.
Information about an account of a member of the Kentucky retirement system is confidential and not open to public inspection. OAG 76-479.
Kentucky law does not require the registering of hotel guests; so if a guest register is kept by a state resort park, it is exempt from the public records act because the information is of a private nature. OAG 76-469.
A municipal utilities company may properly deny a request for individual customer billing records on the basis that the records can be used to infer a particular lifestyle of a residential customer and may suggest the competitive position of commercial and industrial customers, and therefore would be an improper and unjustifiable invasion of the customer's privacy. OAG 96-ORD-176 (8-20-96).
The transportation cabinet properly denies a private investigator access to the home address and social security number of an owner of a vehicle that is involved in a collision which was not being driven by the owner when the collision occurred, because KRS 61.878(1)(a) permits the nondisclosure of portions of public records in which an individual has a cognizable privacy interest if there is no public interest in disclosure. OAG 95-ORD-151 (10-27-95).
6E. Statutory exemption
The Cabinet for Health and Family Services violated KRS 61.880(1) in utilizing a form letter to respond to all open records requests submitted to the Division of Protection and Permanency that regularly resulted in postponement of access for 90 or more days but failed to state the cause for delay, but properly denied that portion of the request implicating records relating to runaway children shielded from inspection by KRS 620.050. OAG-04-ORD-079 (5-27-2004).
Transcript of hearing properly held under open meetings law in closed session is exempt from the requirements of open records statutes. OAG 78-11.
7. Custodian
The City of Dayton's disposition of an open records request was procedurally and substantively deficient insofar as it improperly asserted that officials had no obligation to respond to a misdirected request, when KRS 61.672(4) provides that "if the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records"; in addition, the City's assertion that a written statement read by the mayor at a council meeting was not a public record is incorrect since by definition the term public record includes "all other documentation regardless of physical form or characteristics, which are prepared, owned, used, and in the possession of or retained by a public agency", and the requested written statement must be disclosed to the requester forthwith. 04-ORD-216 (11-16-04).
Audits, receipts, and operating statements of a nonprofit corporation which subleases a publicly owned hospital facility are properly withheld by a city clerk under KRS 61.878(1)(b); the records are "public records" within the meaning of KRS 61-870(2) since they are "in the possession of" the city clerk under the terms of the sublease. OAG 92-66.
Documents regarding private donations to official Kentucky Derby festivities, and expenditures therefrom, are public records if in the possession of or retained by a public agency. OAG 89-7.
In an election contest suit, absentee ballots and applications are in the custody of the circuit clerk and are public records open to inspection. However, removal of the records from the clerk can only be gained through court order. OAG 83-476.
Kentucky department of banking and securities properly denied public inspection of documents pertaining to three Kentucky banks as the department is only casual possessor of these documents while the Federal Reserve Bank and FDIC are the official custodians. OAG 83-342.
A school principal is the official custodian of records on school activity funds and should make records available for public inspection except items which are made confidential by the Family Educational Rights and Privacy Act of 1974. OAG 83-248.
Records in the custody of the University of Louisville pertaining to the University of Louisville foundation, a private corporation, are subject to inspection under the open records law. OAG 81-2.
Records should be requested of the official custodian instead of a casual possessor of the records in another agency. OAG 80-462.
The tax records in the custody of the property valuation administrator are subject to public inspection. OAG 78-473.
8. Request
Mayor had obligation to comply with obligations of state Open Records Act even though mayor personally never saw request; delivery to mayor's office was sufficient to trigger obligations under Act. Baker v. Jones (Ky.App. 2006) 2006 WL 141484. Records 62
The Justice and Public Safety Cabinet improperly relied on KRS 61.878(1)(i)and (j) in denying a request for a letter from a Cabinet attorney to the opposing attorney, upon his request for clarification, stating the Cabinet's policy on the issue into which the opposing attorney inquired, since the letter does not qualify for exclusion as correspondence with a private individual. 05-ORD-072 (4-25-2005).
A proper request for information pertaining only to gross salaries of officers and employees of a county board of education should be honored, but the denial of a request to inspect and copy such documents is technically correct where the public agency does not presently have the precise documents requested. OAG 87-76.
A public agency, when handling a request for public inspection of records, shall make the information requested available by either communicating it to the requesting party or by permitting the requesting party to inspect those municipal records which will reveal the information or it shall advise the requesting party in writing of the particular exception to public inspection it is relying upon and how it applies to the specific document and information being withheld. OAG 86-36.
A public agency's denial of a request to inspect and copy the hearing tapes of a hearing conducted by the personnel board is improper, to the extent that the request is made after the tapes have been submitted to the board pursuant to its own regulations and while the tapes are in possession of the board. OAG 86-16.
Records which were required to be filed with the revenue cabinet by a deceased county clerk are open to public inspection. A request for information is not the same as a request to inspect records and the request should be framed as a request to inspect. OAG 83-257.
A city may properly deny a standing request since the Open Records Act only governs access to the existing records and not to records that will be created in the future. OAG 97-ORD-018 (1-30-97).
The transportation cabinet violates the Open Records Act by directing a requester to obtain a copy of an evaluation report from a private health service provider at a cost of $1.00 per page. OAG 96-ORD-267 (12-18-96).
The University of Kentucky properly denies an ambiguous request for the contract of the administrative recordskeeping officer as the Open Records Act regulates access to public records and not records management. OAG 94-ORD-8 (1-12-94).
9. Procedure
Presentation of material not in appellate record in appellate briefs of city and mayor did not warrant striking of their entire briefs in requestor's appeal of summary judgment that was granted in favor of city and mayor in action under Open Records Act; references to municipal ordinances, unsigned settlement agreement, and mayor's defeat in re-election bid were not sufficiently egregious to warrant drastic relief of striking briefs. Baker v. Jones (Ky.App. 2006) 2006 WL 141484. Records 63
Circuit court order which required disclosure of records which were sought from county attorney under Kentucky Open Records Act was not proper remedy, even though county attorney's response which had denied discovery request had failed to comply with requirements under Act, where circuit court had not examined critical issue of whether material sought was in fact exempt from disclosure under Act, as county attorney contended; it was incumbent on circuit court, upon remand, to examine material and make determination of whether it was substantively exempt from disclosure. Edmondson v. Alig (Ky.App. 1996) 926 S.W.2d 856. Records 63
Because the Kentucky State Nature Preserves Commission affirmatively indicated to the requester that no responsive records exist referring to, sent to or from, or otherwise mentioning her, Mark C. Rathbun, Mark de Rothschild, Scientology, the Church of Scientology, or its deceased founder, L. Ron Hubbard, or former President Dwight David Eisenhower, and the Open Records Act contains no provision or requirement for agencies or their employees to prepare or maintain search certificates' or search declarations', the KSNPC fulfilled its obligation under the Open Records Act. OAG-04-ORD-090 (6-22-2004).
Since the federal government has determined that records in possession of a state agency solely for the purpose of administering social security programs are federal records and that disclosure is governed by the federal Freedom of Information Act, the attorney general's office is not the appropriate forum to review and consider whether the requesting party is entitled to inspect the material requested. OAG 90-132.
61.871 Policy of KRS 61.870 to 61.884; strict construction of exceptions of KRS 61.878
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.
HISTORY: 1992 c 163, § 1, eff. 7-14-92
NOTES OF DECISIONS AND OPINIONS
Facilities 1
Exceptions 2
1. Facilities
A city violates the Open Records Act by failing to provide suitable facilities for inspection of records in contravention of KRS 61.872(1) where the city manager's verbal abuse creates a hostile atmosphere which is not conducive to effective inspection. OAG 93-ORD-39 (3-25-93).
2. Exceptions
Statistical compilation of school disciplinary actions sought by newspaper reporter did not identify individual students and, thus, was not an "educational record" within the meaning of Family Educational and Privacy Act (FERPA), and the requested information was not exempt from disclosure under Open Records Act, and thus, schools were required to release the records of the student disciplinary hearings without redacting the particular school and offense that appeared on those records. Hardin County Schools v. Foster (Ky. 2001) 40 S.W.3d 865. Records 31; Records 55; Records 66
The Governor's Office's denial of a request for e-mails on the basis of KRS.61.878(1)(j) was only partially consistent with the Open Records Act; records not falling within the scope of those exemptions should be made available for inspection. 05-ORD-144 (7-8-2005).
Because records of the type requested, police records, are not included among those to which the General Assembly expressly afforded protection by virtue of KRS 61.878(1)(h), records maintained by county attorneys or Commonwealth's attorneys, the City of Winchester violated the Open Records Act in denying the request for "all police records" generated by the investigation into the sexual assault of a minor child. 05-ORD-095 (5-18-2005).
Kentucky State University improperly withheld records containing amounts donated by BellSouth Corporation in the past five years on the basis of KRS 61.878(1)(a), since the record on appeal indicates that BellSouth does not seek anonymity but instead welcomes publicity associated with its corporate donations; a review of their website discloses information relating to donations made to Kentucky educational institutions, which supports the fact that BellSouth is not an organization that prefers that its donations be kept confidential, and records containing the information the requester seeks must be disclosed. 04-ORD-197 (10-22-04).
The University of Kentucky Police Department did not meet its statutory burden of proof in partially denying a request for eight incident reports identified by case number by redacting all personal information on the victims, since a long line of precedent dating back to 1976 and affirmed by the Kentucky Court of Appeals as recently as October 2003, states that a law enforcement agency violates the Open Records Act by engaging in the practice of withholding all victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure predicated not on the complainant's expressed wishes but on factors such as the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the victim of further disclosure; the availability of some of the information found in these incident reports on its separately mandated website does not relieve the University Police of its duties under the Open Records Act. 04-ORD-188 (10-15-04).
A decision overruling OAG 76-655 and holding that the decision does not provide a legally sufficient basis for denying requests for records containing the names of special deputies appointed by the sheriff and the law enforcement training they have received. OAG 02-ORD-175 (10-2-02).
61.8715 Legislative findings
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and KRS 194A.146, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
HISTORY: 2005 c 99, § 16, eff. 6-20-05; 2000 c 506, § 17, c 536, § 17, eff. 7-14-00; 1994 c 262, § 1, eff. 7-15-94
NOTES OF DECISIONS AND OPINIONS
Loss or destruction, proof 1
Management 2
1. Loss or destruction, proof
The University of Kentucky cannot be said to have violated the Open Records Act in failing to produce for inspection a copy of a fax from a scholarship athlete notifying the University of his decision to pursue a professional basketball career because the fax was 'discarded'; however, because the fax was an official correspondence of the University, it should have been permanently retained and the University's failure to ensure retention creates a presumption of records mismanagement. 05-ORD-141 (7-7-2005).
The University of Kentucky does not violate the Open Records Act when it satisfies its statutory burden of proof by documenting what efforts were made to locate the records and by showing that the loss or destruction of the record occurred prior to the enactment of KRS 61.8715. 95-ORD-96 (7-7-95).
2. Management
The Personnel Cabinet subverted the intent of the Open Records Act by attempting to impose a Two hundred and ten dollar programming charge for a payroll records request. 05-ORD-116 (6-10-2005).
Because part-time employees such as the specified dispatchers are not statutorily required to be "certified", nor are any currently certified, with the exception of the dispatcher whose certification records have been provided to the requester, no other responsive records exist; accordingly, Spencer County 911 Dispatch belatedly discharged its statutory duty by affirmatively indicating as much to the requester in writing. 05-ORD-108 (6-2-2005).
The Lexington Fayette Urban County Government improperly relied on KRS 65.752(4), KRS 61.878(1)(l), and KRS 61.878(1)(a) in denying a request by a TV reporter for a recording of a 911 call placed by a student on a school bus in response to a medical emergency, since the public's right to know the contents of the 911 tape recording outweighs the minimal privacy interest of the student who placed the call to obtain emergency assistance; in addition, LFUCG's failure to retain a copy of the tape before the records access dispute was conclusively resolved raises serious records management issues, and suggests an apparent disregard for the essential relationship between records management under KRS Chapter 171 and records access under KRS Chapter 61. 04-ORD-161 (9-9-04).
With the exceptions noted, Lincoln County High School violated the Open Records Act in denying a request for faculty meeting agendas, minutes of meetings, and meeting schedules on the basis that this office had previously concluded that faculty meeting are not subject to the Open Meetings Act; the previous decision was limited to an analysis of the faculty's obligations and cannot be construed to relieve the high school of its statutory obligations as a public agency under the Open Records Act. 04-ORD-098 (6-24-2004).
An open records appeal is not the appropriate forum in which to resolve a factual dispute relating to the identity of a police officer present at a roadblock at a given placed and time, and responses of the Kentucky State Police to inquiries concerning the officer's identity were entirely consistent with the requirements of the Open Records Act. 04-ORD-088 (6-17-2004).
Kentucky State Police fully discharged agency duties under the Open Records Act by affording the requester access to all existing records responsive to his request for maintenance or other records indicating installation of video cameras in all Post 2 cars, and agreeing to meet with him at Post 2 to resolve lingering records access issues; an open records appeal is not the appropriate forum for resolution of dispute concerning the reliability or verifiability of public records. 04-ORD-32 (2-17-04).
The City of Corydon violated the Open Records Act in denying a request for a tape of a public meeting on the basis of KRS 61.878(1)(i); destruction of public records prior to the expiration of the retention period is indicative of improper records management practices and the decision is referred to the Department for Libraries and Archives for further inquiry as that agency deems appropriate. 03-ORD-173 (7-22-03).
The Northpoint Training Center's denial of an inmates request for a copy of the canceled check was not substantively improper where the check had not cleared the bank at the time of the request. 02-ORD-144 (8-8-02).
A board of education's failure to adequately manage its records so that those records can be retrieved and made available to the public constitutes a subversion of the intent of the Open Records Act, and may also constitute a violation of KRS Ch 171 relating to the management of public records. 94-ORD-142 (11-30-94).
61.872 Right to inspection; limitation
(1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.
(2) Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
(4) If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
(5) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
(6) If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
HISTORY: 1994 c 262, § 3, eff. 7-15-94; 1992 c 163, § 3, eff. 7-14-92; 1976 c 273, § 2
NOTES OF DECISIONS AND OPINIONS
Constitutional issues 1
In general 2
Available 3
Unavailable 4
Compilation 5
Custodian 6
Request 7
Request - Form 7a
Request - Noncommercial purpose 7b
Request - Mail or fax 7c
Request - Inmates 7d
Response 8
Response - Sufficiency 8a
Response - Timeliness 8b
Denial or restriction 9
Denial or restriction - Grounds 9a
Denial or restriction - Unreasonable 9b
Denial or restriction - Specificity 9c
Facilities 10
Burden of proof 11
1. Constitutional issues
The legislative research commission violates the Open Records Act in denying requests for telephone records for all calls made from Senate offices to eight identified telephone numbers since such records are not generally shielded from inspection by the speech and debate clause and the commission did not make a sufficient showing that the records are exempt from public inspection; the attorney general is not foreclosed from reviewing the commission's denial of the request under the doctrine of separation of powers. OAG 98-ORD-92 (5-28-98).
In light of the federal district court's opinion, holding that the 1994 amendments to the Open Records Act distinguishing between commercial and noncommercial use of public records are unconstitutional, the medicaid services department's record policy is improper and must be revised. OAG 96-ORD-168 (7-31-96).
2. In general
Request under Open Records Act should be evaluated independently of whether requester is party or potential party to litigation. Kentucky Lottery Corp. v. Stewart (Ky.App. 2001) 41 S.W.3d 860. Records 52
Judicial review of a disclosure decision, under Kentucky's Open Records Act, must be approached on a case-by-case basis. Williams v. City of London (E.D.Ky. 2003) 252 F.Supp.2d 388, affirmed 375 F.3d 424. Records 63
The refusal of a public agency to respond to a request for public information, as opposed to a request to inspect a specific document, is not a violation of the Open Records Act. OAG 87-84.
The Kentucky state reformatory improperly charged sales tax for copies of records provided pursuant to the Open Records Act. OAG 98-ORD-88 (5-12-98).
3. Available
City properly turned over minutes from a closed session meeting regarding allegations about superintendent's mismanagement of water commission to newspaper, pursuant to request under Kentucky's Open Records Act; public disclosure of information did not constitute unwarranted invasion of superintendent's personal privacy, rather information in minutes pertained to operation of public agency. Williams v. City of London (E.D.Ky. 2003) 252 F.Supp.2d 388, affirmed 375 F.3d 424. Records 58
The Kentucky register of births and deaths is a public record and must be made available for public inspection. OAG 91-25.
While city workers do not have to compile or explain records, they must make a good faith effort to make available for inspection records related to fiscal assets, receipts, and expenditures of the city where there is a reasonable description of records sought, and if inspection of any records is denied, the denial must be made in keeping with KRS 61.880. OAG 89-81.
Uniform police traffic accident reports are public records and are not exempt under KRS 61.872(2)(5) or 61.878(1)(a), and therefore they must be made available; the police department may exercise its prerogative to delete exempted material contained in the police accident reports, provided there is consistent application of this prerogative without regard to the individual requesting inspection. OAG 89-76.
Materials, correspondence, and transactions sent to and received by a city commission pertaining to the bidding process for contract fire protection are open to public inspection once the bids are open. OAG 84-284.
Applications for absentee ballots, including the voter's address, when received and filed by the clerk, become public records, open to public inspection. OAG 84-166.
The open records law allows inspection of a docket in a criminal case. The circuit court clerk should allow inspection of the criminal docket in a requested case for determination of the entry of the judgment of conviction. The clerk should also furnish a requested copy upon prepayment of copying fees. OAG 84-144.
The mental health records of a comprehensive care center must be made accessible to a competent adult who is the subject of the records and to the parent or guardian of a subject child. OAG 82-414.
Open Records Law exceptions to disclosure are inapplicable to insurance departments health insurance rate filings where KRS 304.13-081(1) provides that all rates, supplementary rate information and supporting information filed under KRS 304.13-011 to 304.13-161 shall be open to public inspection. OAG 96-ORD-155 (7-12-96).
A public agency violates the Open Records Act by failing to physically retrieve and make available for inspection and copying specifically identified records housed in a separate location. OAG 95-ORD-52 (4-5-95).
A public agency must permit access to electronically stored records, as opposed to hard copy records, under the Open Records Act. OAG 95-ORD-43 (3-21-95).
4. Unavailable
Although the Department of Public Advocacy violated the Open Records Act in failing to respond to a client's request for the transcript of his trial, and improperly invoked the attorney-client privilege as a belated basis for denying his requests, DPA ultimately discharged its duties under KRS 61.872(4) of the Act by notifying him that it does not maintain a copy of the transcript and advising him where he could obtain a copy. 03-ORD-171 (7-21-03).
A city acts in accordance with KRS 61.872(5) where it indicates that it does not possess certain records requested and where it directs the requesting party to other agencies where records concerning subjects of interest to the requesting party may be located. OAG 89-61.
A public agency properly responds to a request for inspection if it truthfully states it does not have the requested records; it is not required to direct the requesting party to records in the possession of a private entity or individual. OAG 89-7.
A public agency's denial of a request to inspect documents is justified where such documents are not in the agency's possession and constitute records of a private organization. OAG 88-44.
The response of a public agency to a request to inspect documents that some of the requested documents do not exist is sufficient and proper under KRS 61.872(3). OAG 87-54.
A public agency may refuse to make public records available for public inspection on the grounds that documents cannot be found and that the request for other records is vague and imprecise. OAG 86-65.
The records supervisor at the Luther Luckett Correctional Complex acted in conformity with the open records law when she informed the requesting party that she could not supply the requested material as it was not in her possession or custody and she did not know precisely where it was at that time. OAG 84-364.
A request to inspect records must be specific. A request may be denied if the records sought are not available and the information and data are not compiled in such a manner as to be in the form requested. Interoffice memoranda need not be made available. Appointment calendars of persons in public agencies are exempt from public inspection. OAG 84-342.
A list of all taxpayers who have protested the assessment of sales tax was properly denied because tax records are made confidential by statute; such a list does not exist, and the protests are of the nature of correspondence with private individuals. OAG 83-167.
The Department of Alcohol Beverage Control does not violate the Open Records Act by refusing to mail copies of records not readily available within the agency but does extend an open invitation to requestor to conduct on-site inspections of its records to extract information sought. OAG 01-ORD-225 (11-27-01).
5. Compilation
The medicaid services department properly advises a requesting party that the information she sought does not exist in the form requested and that it was not required to create a document to satisfy her request; the request should have been brought under KRS 61.960 to 61.992, which creates a mechanism by which a requesting party can obtain a copy of all or any part of a database. OAG 92-99.
A requesting party is only entitled to an up-to-date computerized listing of names of appointees when such a list is actually in existence or when it is part of a database; a public agency is not required to prepare a listing pursuant to the request. OAG 90-101.
A public agency is not required to make a list or compile information from its records pursuant to a request to inspect. OAG 90-100.
Employees of a public agency are not required to research and compile information to satisfy a request for public inspection where such information may be in bits and pieces among numerous payroll and other records. OAG 88-79.
A public agency's denial of a request for documents is proper to the extent that the public agency declines to prepare and furnish lists which are at the time not in existence, but the denial is improper to the extent that it states or implies that the requesting party will not be afforded the opportunity of examining otherwise nonexempt material to attempt to secure the particular records and documents with which he is concerned. (See also OAG 86-52.) OAG 86-51.
Lists maintained by the Kentucky department of agriculture concerning the recipients of livestock and grain summaries, specific dealers and producers, pesticide applicators, and test results are open to public inspection as they constitute public records under the open records law and do not appear to be exempted from inspection by any application of KRS 61.878. The department may charge the cost of copying for any list already compiled, but may charge the cost of staff plus copying for any list prepared for sale. OAG 84-127.
Occupational license records are open to public inspection in order to obtain names and addresses of licensees. If a list of licensees' names and addresses does not exist, the city may compile a list or the requestor may be allowed to search the records to complete his own list. OAG 84-93.
Under the open records law, blanket requests for information need not be honored; an agency does not have to copy records and deliver them to a person who has not inspected the records; a person does not have a right to require a list to be made which does not already exist. OAG 76-375.
Even though an initial response to an open records request did not satisfy the requirements of KRS 61.872(5), Eastern Kentucky University adequately documented the difficulties associated with locating and retrieving responsive records and designated a reasonable date for public inspection, however, the University may not issue a blanket denial of committees' minutes of meetings claiming they are conducted in closed sessions. OAG 02-ORD-142 (8-6-02).
While the question of whether public access to an agency's computers for purpose of conducting an on-site inspection must be decided on a case by case basis, the Kenton County Fiscal Court discharges its duty to permit on-site inspections of electronically stored agency records by printing out hard copies and making them available for inspection as an alternative to permitting the requester to use the agency's computers. OAG 00-ORD-8 (1-20-00).
6. Custodian
The City of Dayton's disposition of an open records request was procedurally and substantively deficient insofar as it improperly asserted that officials had no obligation to respond to a misdirected request, when KRS 61.672(4) provides that "if the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records"; in addition, the City's assertion that a written statement read by the mayor at a council meeting was not a public record is incorrect since by definition the term public record includes: "all other documentation regardless of physical form or characteristics, which are prepared, owned, used, and in the possession of or retained by a public agency", and the requested written statement must be disclosed to the requester forthwith. 04-ORD-216 (11-16-04).
To comply with procedural requirements of the Open Records Act, the official custodian should determine the propriety of releasing requested documents, or at a minimum, review any denials to ensure conformity with KRS 61.880(1). OAG 92-120.
Kentucky department of banking and securities properly denied public inspection of documents pertaining to three Kentucky banks as the department is only casual possessor of these documents while the Federal Reserve Bank and FDIC are the official custodians. OAG 83-342.
Records of city are required to be in the custody of city clerk, but are open to inspection at reasonable hours. Council can restrict custody of keys to the records to the clerk and mayor, and exclude a member of council. OAG 82-311.
Educational records and records of the school counselor that lead to the identification of a student are exempt from disclosure under the open records law. OAG 02-ORD-61 (3-21-02).
7. Request
Even if city was not required to produce minutes from a closed session meeting regarding allegations about superintendent's mismanagement of water commission to newspaper, pursuant to request under Kentucky's Open Records Act, city's conduct was not so outrageous as to support intentional infliction of emotional distress (IIED) claim under Kentucky law. Williams v. City of London (E.D.Ky. 2003) 252 F.Supp.2d 388, affirmed 375 F.3d 424. Damages 57.25(2)
7A. Form
Mayor had obligation to comply with obligations of state Open Records Act even though mayor personally never saw request; delivery to mayor's office was sufficient to trigger obligations under Act. Baker v. Jones (Ky.App. 2006) 2006 WL 141484. Records 62
Attorneys representing client in hearing against state Lottery Commission could request disclosure of information concededly required to be made generally available under Open Records Act, despite claim that information was sought for discovery purposes and there was no provision for discovery in administrative cases. Kentucky Lottery Corp. v. Stewart (Ky.App. 2001) 41 S.W.3d 860. Records 52
Louisville Metro Inspections, Permits, and Licenses subverted the intent of the Open Records Act in the use of a preprinted records request form that created a potential chilling effect on the submission of open records requests, and the IPL violated the Act in failing to respond to a request that was not submitted on that form. 03-ORD-086 (4-21-03).
While a public agency properly declines to provide information which is not consistent with its method of filing and maintaining records, it must give the requesting party a reasonable opportunity to inspect nonexempt records pertaining to the subject in question. OAG 89-85.
Records which were required to be filed with the revenue cabinet by a deceased county clerk are open to public inspection. A request for information is not the same as a request to inspect records and the request should be framed as a request to inspect. OAG 83-257.
7B. Noncommercial purpose
A property valuation administrator may not require a paid political consultant to explain the purpose of the request and sign a non-commercial applicant's certified statement; a two thousand dollar copying fee for records that are not in any way meaningfully substantiated are considered excessive. OAG 02-ORD-89 (5-3-02).
It is improper for a county board of education to restrict the secondary use of public records requested for a noncommercial purpose. OAG 95-ORD-77 (5-18-95).
The personnel department violates the Open Records Act by denying a request for a portion of its database submitted by an unincorporated association on the grounds that it lacks standing to sue or be sued in its own name, and enter enforceable contracts, where requester certified a noncommercial purpose thereby alleviating the requirement that it enter into a contract. OAG 95-ORD-9 (1-25-95).
7C. Mail or fax
A public agency is not relieved of its obligation to comply with the Open Records Act simply because the request for inspection is made by mail and not hand delivered. OAG 92-123.
A public agency improperly argues that a facsimile of an original letter or document does not constitute a proper written request pursuant to KRS 61.878(2), which does not specify the mode or method by which a request must be made; a faxed request adequately identifies records requested and thus satisfies the underlying purpose of KRS 61.878(2). OAG 92-13.
A public agency is not required to answer open records requests by sending copies through the mail but should do so when it is functionally and economically feasible. The policy of the department of finance not to furnish copies of bids requested by mail is permissible under the open records law. OAG 83-204.
The county clerk is not required to furnish copies of his public records when the request is made by mail. OAG 83-42.
Under the Open Records Act, an agency must mail copies to a person requesting the records if the request is made by an applicant who works outside of the county where the records are located and is willing to pay for the costs of copying these records in advance pursuant to KRS 61.872(3)(b). OAG 96-ORD-186 (9-5-96).
Police departments subvert the intent of the Open Records Act by refusing to mail copies of public records to requester because requester had not shown that he was employed and therefore could not be said to have a principal place of business outside the county. OAG 01-ORD-162 (9-25-01).
7D. Inmates
An inmate has the same right to inspect public records as any other person. OAG 92-94.
The state penitentiary improperly responds to an inmate's request by advising that the request has been referred to the corrections cabinet for review. OAG 92-64.
The refusal of a public agency to furnish documents to a prison inmate who was unable to inspect such documents at the normal depository for such materials is justified where allowing such inspection would place an unreasonable burden on such agency. OAG 88-44.
A public agency's denial of an inmate's request to inspect his complete institutional file was proper under the Open Records Act, as requests to inspect personnel files must specify the particular documents within such files to be inspected. OAG 85-88.
A jail may refuse to permit an inmate access to those parts of the jail's policy and procedures manual which, if disclosed, would constitute a threat to the security of the inmates, staff, or public generally. OAG 95-ORD-121 (8-25-95).
8. Response
8A. Sufficiency
The Cabinet for Health and Family Services violated KRS 61.880(1) in utilizing a form letter to respond to all open records requests submitted to the Division of Protection and Permanency that regularly resulted in postponement of access for 90 or more days but failed to state the cause for delay, but properly denied that portion of the request implicating records relating to runaway children shielded from inspection by KRS 620.050. OAG-04-ORD-079 (5-27-2004).
Although Dept. for Medicaid Services was not obligated to reformat its database to conform to the parameters of open record request, it was obligated to afford requester access to its entire database, which she had requested in the alternative, absent any showing that to do so was unreasonably burdensome within the meaning of KRS 61.872(6). 03-ORD-004 (1-8-03).
A public agency's written response to a request to inspect public documents is legally sufficient where it affords the requesting party reasonable opportunity to inspect such records to obtain desired information; the information itself need not be provided. OAG 88-8.
The response of a public agency to a request to inspect documents that some of the requested documents do not exist is sufficient and proper under KRS 61.872(3). OAG 87-54.
The University of Kentucky's official records custodian's failure to specifically state that the described records exists or that the provided record is the record that the requested described does not constitute a violation of the Open Records Law. OAG 94-ORD-15 (2-7-94).
Although a city may not adopt a policy of withholding names and addresses of all crime victims, along with the location of the crimes perpetrated against them, the city may withhold names and addresses of victims of sexual offenses as privacy interests of victims of these singularly traumatic crimes outweigh public interest in disclosure of identifying information. OAG 02-ORD-36 (2-22-02).
8B. Timeliness
The City of Lynnview violated the Open Records Act in postponing a council person's access to public records because the city was not represented by an attorney; the city's inaction also constituted a violation of the Act and its ultimate decision to redact portions of requested records did not conform to the requirements of KRS 61.880(1) or reflect an appreciation for KRS 61.878(5). 03-ORD-134 (6-18-03).
Where a request to inspect public records is broad and involves numerous records in which exempt and nonexempt materials are commingled, what a reasonable time for the agency to respond is turns on particular facts, but a three-month delay is clearly excessive. OAG 92-35.
The social services department errs in failing to provide a requesting party with a "detailed explanation" of the cause of its delay in affording her access to the records requested, and in failing to arrange for inspection at the earliest possible date. OAG 91-200.
A university improperly treats two separate requests to inspect records as one, whereby it withholds immediately accessible documents described in one request until documents in storage described in the other request can be located. OAG 91-111.
A public agency should respond in writing to a party requesting public inspection of a document within three days of receipt of the request, and if the records cannot be obtained promptly the requesting party should be notified at once of that development. OAG 88-54.
A public agency, when handling a request for public inspection of records, shall make the information requested available by either communicating it to the requesting party or by permitting the requesting party to inspect those municipal records which will reveal the information or it shall advise the requesting party in writing of the particular exception to public inspection it is relying upon and how it applies to the specific document and information being withheld. OAG 86-36.
A public agency violated the Open Records Act when it failed to respond to a request to inspect within three working days, when it failed to state the specific exception relied upon in refusing to permit inspection, when it failed to send a copy of the written response denying inspection to the attorney general, and when it required the requesting party to state or verify why he needed to inspect and copy the public records. OAG 85-120.
Although an agency is not required to send copies of requested public records to the requestor, it is directed by statute to respond to a written inspection request within three days. Public records should be made available for inspection and the agency may charge a reasonable fee (not including the cost of the staff) indicative of the actual cost for the copies. OAG 84-91.
A public agency violates the open records requirements by failing to timely respond to the request and by denying a written request for failure to use the prescribed forms. OAG 94-ORD-101 (8-25-94).
A county public school violates KRS 61.880(l) by issuing an incomplete and untimely response to a request for records relating to the emergency licensure and hiring of an employee. OAG 01-ORD-216 (11-1-01).
9. Denial or restriction
9A. Grounds
The University of Louisville did not violate the Open Records Act in denying a request for tapes of practices of the varsity football scout team, since like playbooks they are proorietary and highly confidential, and the Attorney General is vested with the authority to substantively determine this open records issue notwithstanding the existence of related but not identical litigation. OAG-04-ORD-058 (4-8-2004).
The Property Value Administrator's blanket denial of a request for copies of PVA conference records was inconsistent with the requirements of the Open Records Act, but the agency could properly withhold information from its conference records which constitute the 'affairs of any person' and 'affairs of a person's business,' as set forth in KRS 131.190(1). OAG 04-ORD-038 (2-26-04).
Pendleton County Fiscal Court and E-911 Dispatch Center properly relied on KRS 61.872(6) in denying a request for 24 months of 911 dispatch calls based on volume of records implicated, technological impediments to reproduction, and necessity of redacting protected information. OAG 03-ORD-211 (10-8-03).
An agency properly denies a final request for inspection by a requesting party whose numerous and often duplicative requests placed an unreasonable burden on the agency. OAG 92-91.
The state penitentiary's custodian of records properly responds to an inmate's request for incident and officer's reports involving him by advising him that the requested records have not yet been forwarded to her office but will be available in two to three weeks; a corrections officer's subsequent attempt to supersede the custodian's authority and issue a separate denial does not bind the agency. OAG 92-31.
A public agency may deny a request for inspection of records under KRS 61.872(5) based upon clear and convincing evidence that the request would place an unreasonable burden on the agency or that the request was intended to disrupt the essential functions of the agency. OAG 91-42.
A request to the state police to inspect all automobile accident reports during a specified period of time is not unreasonably burdensome and may not be denied solely on the ground of the alleged necessity of separating exempt and non-exempt ma