Legal Resources/1st Amendment

Reporter's Pocket Guide

KRS 61.870 to 61.884

•What is a public agency that must have open records? -- See Open Meetings Law (reverse side), plus private companies that derive at least 25 percent of the funds they expend in Kentucky from state or local authority funds.

•What is an open record? -- All books, papers, maps, photographs, cards, tapes, discs, diskettes, software, recordings or other documentation regardless of physical form or characteristics, that are prepared, owned, used, in the possession of or retained by a public agency. The records of a private company that are not related to its state or locally funded operations are not public.

•From whom do you request access to open records? -- The official custodian of records is the chief administrative officer or any other employee who is responsible for maintenance, care and keeping of public records.

•How can you gain access to public records? -- Sometimes, a verbal request will do. But many agencies require a written statement, describing the records to be inspected, signed by you and with your name printed legibly on the request. You may make the request in person, by mail or by fax machine. You can review the records during regular business hours. If you request it, the agency must mail the records to you is

(1) you have paid all fees and mailing costs,

(2) you are located (residence of business) outside the county where the records are maintained,

(3) you precisely describe the records you want, and

(4) the requested records are readily available within the agency.

If you direct your request to a person who is not the recordkeeper, he/she must give you the name and location of the person who is. If the record you want is in use by someone else or otherwise not immediately available, the recordkeeper must inform you of that and set up an appointment for you within three days of receiving your request, or else give you a detailed explanation of the delay and when the record will be available for inspection.

•When can you be denied access? -- If the recordkeeper believes your repeated requests are intended to disrupt the operation of the agency, he/she can refuse your request; however, there must be clear evidence that you have abused the right.

•What about copies? -- If the requested records, written or otherwise, are to be used by the news media, the agency, will, or permit you to, make copies of them. The agency may require that your request be in writing, and it may require payment in advance, including postage if you want the materials sent to you. The agency cannot charge more than the actual costs for copies, unless you have requested the copy in a nonstandardized format, and it cannot add staff time into the cost. An agency may permit you to have online access to computerized records.

•What records are excluded? -- You cannot see personal records that would constitute an invasion of a person’s privacy: confidential records compiled and maintained for scientific research; records that would give a competitor an unfair advantage, such as documents submitted in connection with loans, regulation of a commercial enterprise (i.e. mineral exploration, secret formulas), grant or review of a business license, documents regarding prospective location of a business, property acquisition by a public agency, academic tests or exams for licenses, law enforcement investigations before action is taken, preliminary records and records sealed by federal law or by the General Assembly. If open and closed records are intermingled among materials you request, the recordkeeper must separate the materials and allow you to see those that are open.

•What can you do if you believe there’s been a violation?

1. You must be notified by the agency, in writing, within three working days that your request has been denied. The notice must refer to the specific exception in the law and explain how the exception applies.

2. You may then send a copy of your request and the denial statement to the Attorney General who has 20 days to issue an opinion to you and the agency. (If the agency did not give you a written reason for denying your request, send only your written request with a letter of explanation.

3. You or the agency can appeal the Attorney General’s decision in Circuit Court in the county where the agency has its principal place of business or where the record you want is maintained, within 30 days of the AG’s opinion. Otherwise, the AG’s opinion has the force and effect of law (You can skip steps 1 and 2, if you wish, and file suit directly.) In any case, the court must give precedence to this case, and the burden of proof is on the public agency.

4. At the discretion of the court, if you win the suit, the agency may have to pay your attorneys’ fees and pay you up to $25 for each day you were denied access to the record.

Shield Law, KRS 421.100

Newspaper, radio or television broadcasting station personnel need not disclose source of information. No person shall be compelled to disclose any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.

Pocket Guide to Open Meetings Law KRS 61.805 to 61.850

•What is a public agency that must have open meetings? Virtually every state or local governing body that exists to serve or regulate the citizenry including those committees (by whatever name) that are created by public agencies. Examples: schools boards, city councils, municipal corporations, advisory committees, subcommittees, ad hoc committees of agencies and interagency bodies. Exceptions: a committee of a hospital staff or committee formed to evaluate qualifications of public agency employees.

•What is open? -- EVERYTHING, except: Parole Board deliberations; deliberations on future sale or purchase of real property when the publicity would probably affect value; discussions of proposed or pending litigation; grand and petit juries; collective bargaining negotiations; specific (not general) personnel issues; negotiations with businesses that might be jeopardized if public; state or constitution law; judicial or quasi-judicial bodies when neither the person being judged nor his representative is present (but planning and zoning commissions and boards of adjustments are specifically open). Meetings of less than a quorum of the agency's members are to be open if a series of such meeting is scheduled for the purpose of avoiding the requirements of openness.

•What must the agency do to have a secret session? -- The general nature of the business to be discussed in secret and the specific law allowing secrecy must be noted in open session. A motion and a vote to go into closed session are required. No final action can be taken in private and no matters are to be discussed in private except those exceptions provided in the law.

•How must agencies prepare for public meetings? -- They must make a schedule of regular meetings available to the public.

•What about special meetings? -- Notice of a special meeting must be made in writing and include date, time, place and agenda, with actions at the meeting limited to items on the agenda. Notice must be given at least 24 hours in advance by hand delivery, fax machine or mail to every member of the agency and to media that have requested, in writing, to be notified. (The agency may require you to submit a new written request each year.) The notice must also be posted at the meeting place and at agency headquarters.

•What about emergency meetings when 24-hour notice can’t be given? -- The agency must make a “reasonable” attempt to notify you if you have a request for notification on file. At the meeting, the chairperson must describe, for the written minutes, the circumstances requiring emergency deliberation which make normal notification impossible. Discussions and actions must be limited to the emergency.

•What can you do if you believe there’s been a violation?

1) Notify the presiding officer in writing that you think there’s been a violation citing the alleged violation of KRS 61.805 to 61.850, and state what can be done to remedy the situation. The agency has three working days after receiving your complaint to respond. If the person denies the charge, he/she must cite specific statute(s) supporting the denial and explain how the statute applies.

2) If this doesn't satisfy you, you should send a copy of your written complaint, the agency’s written denial, and your explanation of the situation to the Attorney General within 60 days of when you received the denial. (If the agency did not respond at all or responded inadequately to your complaint, then just send a copy of your complaint and an explanation.) The AG must issue a written decision on the matter within 10 working days.

3) Either you or the agency may appeal the AG’s decision through your local Circuit Court. If there is no appeal, the AG’s decision has the force and effect of law and is enforceable in Circuit Court, which may void actions taking during a violation.

4) You do have to go through the AG for a decision. You may go directly to the Circuit Court within 60 days of the agency’s response to your complaint or the date you filed the complaint if no response was received. Your case should to at the top of the court calendar. If you win in court, the agency may have to pay your court costs, including reasonable attorneys’ fees, and the court has the discretion to award you up to $100.

•What should you do if you’re refused entry to a meeting that you believe to be open? -- Request that the presiding officer cite the specific statute, number and section that permits the organization to close the meeting to the public, and ask that this be included in the minutes.

•What should you do if you believe the members are going into a secret session illegally? -- Don’t be afraid to stand up and request that the agency follow the law by voting to go into secret session and by stating the reason with specific statute, number and section.

•What about meeting by video teleconference? -- They're open and subject to the same requirements as regular meetings. A video teleconference is a meeting between persons at different locations, where all the participants can see and hear each other by audio-video equipment.

If you have a question regarding any of these laws, contact KPA's Freedom of Information Hotline, Attorneys Jon Fleischaker, Kim Greene, Kenyon Meyer or Julie Foster at (502) 540-2300.

Sponsored by the Kentucky Press Association News/Editorial Division with Assistance of Jon Fleischaker and Kim Greene, Dinsmore & Shohl