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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 material from the reports. OAG 90-112.
The denial of a request to inspect some 800 records contained among twenty-seven files as unduly burdensome is supported by KRS 61.872(5) where the difficulty of separating confidential from nonconfidential materials is exacerbated by the substantial volume of records involved. OAG 89-88.
A school superintendent's temporary withholding from public inspection of an administrative memorandum is proper, providing he furnishes requested material relative to the monthly financial report, as such memorandum is not an agenda but a preliminary intrasystem memorandum containing the superintendent's proposals and recommendations relative to items to be considered at meetings of the school board. OAG 86-54.
The custodian of the registration and circulation records of a public library is not required to make such records available for public inspection under the open records law. OAG 81-159.
A public agency cannot deny inspection of a record in the possession of its accountant on the basis of an accountant-client privilege. OAG 80-207.
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).
A criminal trespass list compiled and maintained by the housing authority of Louisville must be disclosed, the antagonistic interests of the public's interest in knowing whether its agencies are properly executing their statutory function outweighs the individual's interest in nondisclosure of records containing their names, since a person's name is the least private thing about them and should only be withheld when there is a special reason provided by statute or court order. OAG 02-ORD-159 (9-3-02).
A city that fails to assert adequate grounds for temporarily denying requester access to certain records in its custody violates the provisions of the Open Records Act. OAG 96-ORD-12 (1-17-96).
The personnel department properly denies a request for a computer listing of classified and nonclassified state employees and data relating thereto where the requesting party fails to state the purpose of the request as required by KRS 61.970(1), and where the database is not available in the format requested. (Annotation from former KRS 61.960.) OAG 93-ORD-14 (2-2-93).
9B. Unreasonable
Eastern Kentucky University did not comply with procedural requirements and the Open Records Act in disposition of a records request, as EKU's partial denial of the request for parking citation appeals on the basis of 20 U.S.C. sec. 1232g was proper, but the invocation of attorney client privilege without sufficient proof that the records qualified for protection was improper. 05-ORD-136 (6-30-2005).
The Fayette County Clerk violated the Open Records Act by failing to observe the fundamental premise of the Act, that all public records shall be open for inspection by any person, in exercising his discretion affirmatively in permitting local attorneys online access to electronic records posted on his website, but denying the request of an attorney from Rowan County for online access to the same records. 05-ORD-025 (2-22-05).
Although the Transportation Cabinet violated the Open Records Act in failing to disclose its electronic docketing and litigation tracking system for all pending condemnation cases dating back to 1989, the Cabinet properly relied on KRS 61.872(6) in denying the requester unrestricted access to some 20,000 hard copy litigation files that contain both excepted and non-excepted materials, and on KRS 61.878(1)(f) in refusing to disclose the appraisal amounts in pending condemnation cases. 04-ORD-117 (8-5-04).
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 meetings 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).
Actions of the Earlington Police Department and Pennyrile Narcotics Task Force violated provisions of the Open Records Act relative to a request for records relating to the identity of an unknown officer at a precisely identified road check. OAG 04-ORD-050 (3-26-04).
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 03-ORD-214 (10-14-03).
Although the Attorney General makes no finding relative to the Laurel County Sheriff's Department's compliance with procedural requirements of the Open Records Act, due to ambiguities in the record on appeal, the AG finds that the Department violated the Act in failing to address each of the applicant's requests for records and erroneously equating the disclosure made in criminal discovery with access to public records under ORA. OAG 03-ORD-213 (10-10-03).
An agency improperly denies a request for time sheets of a specific individual for a period of less than two years on the ground that production of the records would place an unreasonable burden on it; the fact that the records are stored off-site is a relevant consideration only insofar as it relates to their immediate availability. OAG 92-102.
A public agency may not deny inspection or copying of its denial of an open records request. OAG 91-130.
A city improperly requires a party requesting inspection of records to state the purpose of the request on preprinted forms; purpose is irrelevant to requests under the open records law. OAG 91-129.
The denial of a request for access to records relative to persons appointed to various boards and commissions by the governor is improper, as public records stored in a database may be obtained pursuant to KRS 61.975(2). (Annotation from former KRS 61.975.) OAG 91-18.
The state police act inconsistently with the Open Records Act in making a blanket denial of inspection of records contained in a file. OAG 90-16.
The purpose of the person requesting to inspect public records has no bearing on whether the public agency should grant or deny the request, and thus the transportation cabinet cannot deny a request to inspect records because information from those documents may or will be used in some future legal action, as such a denial is a violation of the Open Records Act, as is the agency's improper handling of requests submitted to it by its failure to respond timely and in the proper manner, and its reliance upon an exception to inspection requiring support by clear and convincing evidence which is not produced. OAG 89-79.
A request to inspect police dispatch logs for a four-year period is neither a blanket request, nor unduly burdensome because of volume, to support a blanket denial of inspection of the entire class of records under KRS 61.878(1)(f), where the records are of a limited class usually cumulated by month or year, and where inspection thereof has been allowed to others. OAG 89-20.
A public agency's attempt to restrict a requesting party's inspection of records to one half hour per week is an unreasonable restriction on the right to inspect and copy public records. OAG 87-54.
A public agency's failure to state in writing its reason for refusing to permit a requesting party to inspect documents and the agency's failure to send a copy of the letter of denial to the attorney general's office were violations of the open records law. Also, the agency's denial of a request to inspect certificates required by KRS 161.020 to be filed with the board of education was improper; however, that information, if any, on the certificates that is of a personal nature, such as social security numbers, home addresses, and telephone numbers need not be released. OAG 85-109.
A public agency's denial of a request to inspect the employment contract between the district health department and the executive director of that department violated the Open Records Act. Every public agency should make every attempt to comply with the letter and spirit of the Open Records Act. OAG 85-85.
A dispatch service cannot limit inspection of the dispatch log to one day a week. Also, it cannot require that a person purchase a copy of the log instead of inspecting the original and making notes or abstracts. A charge of fifty cents per page for a copy of the record is not a reasonable fee. OAG 82-396.
A city properly denies a request that is broadly worded, coupled with the requestor's past pattern of conduct and conviction for harassing communications relating to activities aimed at causing annoyance and harm to past and present city employees and serving no legitimate communicative purpose. OAG 02-ORD-230 (11-26-02).
The cabinet for health services properly denies a request for licensure inspection reports for a two-year period where the request implicated various records containing information which is mandatorily confidential and the burden of separating exempt and nonexempt information would place an unreasonable burden on the cabinet. OAG 97-ORD-88 (6-6-97).
Request for records mirroring the language of the statute not imprecisely described, denial of request as violation of the Open Records Law. OAG 97-ORD-46 (3-19-97).
The personnel department errs in failing to release records relating to salaries, classifications, and agency affiliations of state employees stored on an existing database. (Annotation from former KRS 61.975.) OAG 93-ORD-118 (10-15-93).
The workers' claims department properly denies a request to inspect all S.F.1 forms filed in the four-week period prior to the requested date of inspection as being unreasonably burdensome where such forms consist of 5,803 documents containing both exempt and nonexempt information. OAG 92-ORD-1261 (11-2-92).
9C. Specificity
The Lexington Fayette Urban County Government, Division of Fire and Emergency Services properly relied upon KRS 61.872(6) in denying a request for "all documents in any way mentioning or referring to" a named firefighter recruit, and properly denied a request for redacted versions of the written evaluations for each member of the recruit class on the basis of KRS 61.878(1)(a) as an unwarranted invasion of personal privacy. 05-ORD-014 (2-4-05).
Where records requested are of a limited class, to wit personnel records, and are identified by name, the request is sufficiently specific and the agency must discharge its KRS 61.880(1) duties; overruling OAG 88-53 and succeeding opinions/decisions establishing a high standard of specificity for requests for personnel files (and by extension inmate folders). 03-ORD-012 (1-14-03).
A custodian of records properly advises an inmate that he must request specific documents in his institutional file; a request for all "nonconfidential parts" of the file is a blanket request which need not be honored. OAG 92-56.
The justice cabinet properly denies a request to inspect documents identified by general character only as opposed to by particular subject, but improperly withholds documents consisting of annual compliance reports. OAG 92-16.
An economic development office properly denies an overbroad blanket request to inspect records. OAG 91-58.
A public agency's blanket denial of a request to inspect records is improper where the requesting party has described various categories of records with sufficient specificity to require a more specific response from the public agency. OAG 91-7.
A property valuation administrator violates the Open Records Act in failing to cite specific exceptions and give explanations in denying a request to inspect "all records and supporting documents" regarding certain assessments. OAG 89-12.
The state police properly deny a request to inspect all records pertaining to two specifically named state troopers as being too broad and too general. OAG 89-8.
An agency's denial of a request to inspect all the reports and materials that pertain to the requesting party and all relevant materials not otherwise specified was proper because blanket requests for information on a particular subject without a specification of the documents that are desired need not be honored. OAG 85-107.
Request to inspect all records in the Kentucky department of transportation, division of right of way, district 5, may be denied under Kentucky open records law as it lacked specificity. Furthermore, the records contain exempted material which must be separated from the non-exempted material before inspection. This separation would place an unreasonable burden on the agency. OAG 83-386.
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.
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).
10. Facilities
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).
A city acts inconsistently with provisions of the Open Records Act where, in contravention of KRS 61.872(1), it denies a requester the use of a film reader-printer and a cassette tape player, thereby failing to provide suitable facilities for inspection of its records. OAG 90-50.
The court clerk is required by KRS 61.878 to provide suitable facilities for inspection of public records, such as those involving DUI traffic violations. The burden of producing voluminous records may be overcome by allowing the requestor to inspect a small amount of records at a time. OAG 84-278.
A school system's response placed in mail on the third day, where the postmark and delivery not intentionally delayed but a mere failure to insure that the mail picked up by post office on same day not constituting a subversion of the intent of the act. OAG 02-ORD-094 (5-16-02).
A school council subverts the intent of the Open Records Act by providing copies of requested records on computer disk where the requesting party does not own a computer and is not skilled in the use of computers, and is thus effectively denied access to the records; the council must either provide copies in paper form or arrange for the requesting party to use its computer to review the records. OAG 93-ORD-46 (4-19-93).
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).
11. Burden of proof
The City of Hiseville did not meet its statutory burden of proof in denying a portion of a request to inspect records of the Cemetery Caretaker Committee where the requester has agreed to provide all manpower necessary to collect the information sought, eliminating much of the burden associated with production of the desired records; however, the city's denial of the second subpart of the request is affirmed in part because the legal issues it raises is currently before the Kentucky Court of Appeals in a case involving public access to donor records of the University of Louisville Foundation. OAG-04-ORD-066 (4-23-2004).
The lottery corporation violates the Open Records Act in responding to requests for various records relating to employees and contracts by failing to explain how the information is proprietary and therefore failing to meet its statutory burden of proof. OAG 95-ORD-27 (2-27-95).
A public agency may not deny inspection of documents absent a showing by clear and convincing evidence that the request to inspect the documents would impose an unreasonable burden upon it. OAG 95-ORD-2 (1-10-95).
A denial by a city of inspection of a public record on the ground that allowing inspection would place an unreasonable burden on the city must be sustained by clear and convincing evidence. OAG 91-168.
61.874 Abstracts, memoranda, copies; agency may prescribe fee; use of nonexempt public records for commercial purposes; online access
(1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall duplicate the records or permit the applicant to duplicate the records; however, the custodian shall ensure that such duplication will not damage or alter the original records.
(2) (a) Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
(b) The minimum standard format in paper form shall be defined as not less than 8 1/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
(3) The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
(4) (a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.
(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee.
(c) The fee provided for in subsection (a) of this section may be based on one or both of the following:
1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
2. Cost to the public agency of the creation, purchase, or other acquisition of the public records.
(5) It shall be unlawful for a person to obtain a copy of any part of a public record for a:
(a) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (4)(b) of this section; or
(b) Commercial purpose, if the person uses or knowingly allows the use of the public record for a different commercial purpose; or
(c) Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use.
(6) Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed:
(a) The cost of physical connection to the system and reasonable cost of computer time access charges; and
(b) If the records are requested for a commercial purpose, a reasonable fee based on the factors set forth in subsection (4) of this section.
HISTORY: 1994 c 262, § 4, eff. 7-15-94; 1992 c 163, § 4, eff. 7-14-92; 1976 c 273, § 3
NOTES OF DECISIONS AND OPINIONS
Constitutional issues 1
In general 2
Copies 3
Public records 4
Costs 5
Fees 6
Fees - Reasonable 6a
Fees - Improper 6b
Format 7
Noncommercial or commercial purpose 8
1. Constitutional issues
Decision that statute restricting dissemination of motor vehicle accident reports did not violate constitutional rights of attorneys and chiropractors who were denied access to reports under the statute rendered moot their claim that their constitutional rights were also violated by statute allowing state custodian to charge reasonable fee for producing copies of nonexempt reports under the first statute. Amelkin v. McClure (C.A.6 (Ky.) 2003) 330 F.3d 822, certiorari denied 124 S.Ct. 827, 540 U.S. 1050, 157 L.Ed.2d 699. Constitutional Law 46(1)
News-gathering exception to Kentucky statute restricting disbursement of motor vehicle accident reports, which allowed news media to obtain and publish information in accident reports, was not severable from entire statute so as to save the statute as a whole from finding of unconstitutionality under First Amendment, since, given the clear public interest in having general awareness of accidents taking place within the community, general assembly would not have enacted remaining parts of statute without the unconstitutional news-gathering exception. Amelkin v. McClure (C.A.6 (Ky.) 1999) 168 F.3d 893, rehearing and suggestion for rehearing en banc denied, vacated 120 S.Ct. 630, 528 U.S. 1059, 145 L.Ed.2d 507, on remand 205 F.3d 293, rehearing denied. Statutes 64(2)
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
In determining whether information sought by attorney under Open Records Act for marketing purposes was subject to nondisclosure as unwarranted invasion of personal privacy, court's analysis did not turn on purposes for which request for information was made or identity of person making request; Legislature intended to grant any member of public as much right to access to information as the next. (Annotation from former KRS 61.970.) Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 52; Records 58
The Fayette County Clerk violated the Open Records Act by failing to observe the fundamental premise of the Act, that all public records shall be open for inspection by any person, in exercising his discretion affirmatively in permitting local attorneys online access to electronic records posted on his website, but denying the request of an attorney from Rowan County for online access to the same records. 05-ORD-025 (2-22-05).
Because the General Assembly is presumed to have been aware of the existence of KRS 61.874(2)(a) at the time it enacted KRS 237.110(8), and these two statutes are in irreconcilable conflict," KRS 237.110(8), the subsequent and specific statute," is controlling; accordingly, the Kentucky State Police properly denied Andrew Tangel's request to provide the list of concealed weapons licensees in electronic format and correctly advised him on how to proceed under KRS 61.874 thereby fulfilling its obligation under the Open Records Act. OAG 03-ORD-222 (10-27-03).
Although the Attorney General makes no finding relative to the Laurel County Sheriff's Department's compliance with procedural requirements of the Open Records Act, due to ambiguities in the record on appeal, the AG finds that the Department violated the Act in failing to address each of the applicant's requests for records and erroneously equating the disclosure made in criminal discovery with access to public records under ORA. OAG 03-ORD-213 (10-10-03).
An agency acts consistently with the Open Records Act in refusing to provide a copy of a document requested by a prison inmate until the inmate has sufficient funds in his account to cover copying costs. OAG 91-210.
Court records are outside the purview of the Open Records Act; thus, a circuit court clerk acts consistently with such act in refusing to furnish copies of certain court records. OAG 90-4.
The open records statutes do not provide that records offered for inspection must show information that perhaps should be shown upon such records in accordance with KRS 132.530, or that is called for by the terms of a particular record form, and the open records provisions also do not empower the attorney general to order an agency to provide information or prepare records that contain such information. OAG 89-66.
The uniform fee list authorizes county clerks to charge five dollars for certified copies of deeds; however, it does not provide a specific fee for uncertified copies, and KRS 61.874(3) would apply. OAG 96-ORD-3 (1-16-96).
3. Copies
The Kentucky Commerce Cabinet violated the Kentucky Open Records Act in denying a request for hard copies of the final presentations made by six advertising companies in response to a request for proposal issued by the Cabinet in conjunction with other state cabinets for an advertising/research agency to consolidate services across cabinet lines and develop a brand" for the Commonwealth, as the requested records do not constitute preliminary drafts, notes, or correspondence with private individuals", and this exception does not extend to all writings from individuals to a government agency; in addition, the Cabinet merely parroted the language of the statutory exception without giving any explanation of how the cited exception applies to the requested records as required by KRS 61.880(1), and therefore the Cabinet must provide the requester with the requested copies in accordance with KRS 61.874(1). 04-ORD-125 (8-6-04).
A jailer properly advises an inmate in a federal penal institution that he must inspect records before copies will be made for him pursuant to KRS 61-874(1); after July 14, 1992, the jailer must reevaluate his office's policy with respect to providing copies, since the 1992 general assembly amended this section to eliminate the inspection requirement. OAG 92-82.
A public agency does not act inconsistently with the open records law in denying a request for copies of records where the requesting party has not first inspected such records. OAG 90-35.
A public agency's failure to respond to a request for copies of certain maps that had not been inspected by the requesting party, in the absence of a request to inspect such maps, is not inconsistent with the Open Records Act; the requirement to respond applies only to the denial of a request to inspect records, and the right to copies thereof is ancillary to inspection thereof. OAG 90-8.
A board of education acts improperly on denying a request to make copies of minutes of meetings and credit card receipts and in failing to give the requesting party notice of her right to appeal such denial to the attorney general. OAG 89-27.
A public agency is not mandatorily required to send copies of records by mail to a requesting party when that person has not first inspected those records and then selected the items he wants copied, particularly where numerous records and documents are involved. A public agency properly requests additional information in order that specific records requested may be located. OAG 88-60.
A public agency is not required to furnish copies of records to a requesting party by mail when such party has not first inspected those records and selected items he wants copied, particularly when numerous or lengthy records are involved. OAG 87-68.
A public agency is in compliance with KRS 61.874 where it affords the requesting party an opportunity to inspect the documents but declines to send copies of the documents prior to inspection. OAG 86-80.
While a public agency should have responded in writing to a requesting party's letter pertaining to a request for copies of documents, a public agency is not required to send copies of records to a requesting party by mail, when the requesting party has not first inspected the items to be copied, particularly when numerous documents are involved. OAG 86-24.
The executive director of a public agency did not comply with the open records law, KRS 61.874(1), when he neither furnished copies of records he permitted the requesting party to inspect nor advised that party in writing of a legitimate and legal reason why copies of the records could not be furnished. OAG 85-46.
A sheriff's office is not required to send a copy of records which have not been inspected by the requester even though the requester is an inmate who is not able to inspect the records personally. OAG 82-629.
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).
4. Public 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
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 03-ORD-214 (10-14-03).
A library district petition becomes a public record once it is properly filed and, prior to that time, a person signing his name to the petition can withdraw it. Opponents of the petition may procure copies of it after the fiscal court has verified the petition, and the fiscal court has a reasonable time within which to make such verification. OAG 79-265.
A marriage certificate and a will are public records and a person may obtain a copy by paying a reasonable fee. OAG 76-754.
5. Costs
If a county clerk cannot demonstrate that records involved are covered by KRS 64.012, the amount to be charged for copies is governed by KRS 61.874(2). Unless the clerk can demonstrate that it actually costs fifty cents per page to provide copies, considering applicable factors set forth in KRS 61.874(2), the fees imposed must be recalculated. OAG 89-9.
The insurance department is bound by the provisions of KRS 61.874(2) in calculating the fees it charges for copies of documents where such costs are not specifically covered by other statutory enactments. There is no evidence that it costs the department fifty cents per page to produce copies of documents, considering the applicable factors set forth in KRS 61.874(2). Fees charged in excess of the actual costs are in violation of the Open Records Act and the department should recalculate the fees imposed to conform to statutory requirements. OAG 88-74.
A public agency is not bound by the provisions of KRS 61.874(2) pertaining to costs levied for copies of public records where the material requested involves a non-existent list; the public agency may, therefore, charge what it costs to prepare, program, and reproduce the requested list from existing material. OAG 88-19.
If a county clerk's office cannot demonstrate that the fee list set forth in KRS 64.012 is applicable, then KRS 61.874(2) applies to the costs it may charge for copies of documents, and thereunder the fee imposed cannot exceed the actual cost of making the copy, not including the cost of staff required. OAG 87-80.
A state university has a statutory duty to separate excludable material from that which is subject to public inspection and the only costs which may be charged for copies of such material are the actual costs of copying. OAG 87-67.
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.
A solid waste and recycling board's charging of $.25 per page for reproducing copies of its public records excessive without substantiation of actual costs, excluding staff costs. OAG 02-ORD-198 (10-25-02).
Unless an agency can demonstrate some actual costs associated with allowing individuals to exercise their right to inspect and make an abstract of a record for a commercial purpose, then no fee can be charged. OAG 94-ORD-145 (12-9-94).
6. Fees
6A. Reasonable
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.
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).
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).
A school board member would be entitled to records of the school system which relate to a legitimate governmental purpose and the board member's public function; a board member who makes an open records request for copies of records may be charged a reasonable fee for the copies. OAG 96-ORD-110 (5-14-96).
The state police's refusal to waive the copying charges for public records for representatives of the media is proper. OAG 94-ORD-90 (7-20-94).
An individual who accepts a custom-made record of database information, pursuant to KRS 61.975(3), instead of a copy of an existing record, pursuant to KRS 61.975(2), is estopped from arguing on appeal that the public agency erred in not providing a copy of the existing record; $350 is a reasonable fee for the agency to charge for creation of the custom-made database record. (Annotation from former KRS 61.975.) OAG 91-19.
A circuit court clerk may charge a ten cents per page reproduction fee for copies of closed files requested by an indigent prisoner. OAG 90-108.
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.
After inspecting the county clerk's public records, an applicant may request copies of the records for a fee. OAG 83-42.
The clerk's fee for a copy of a deed is $3.50, regardless of the number of pages. Where there is no other applicable fee statute, KRS 61.874(2) provides for a reasonable fee for a copy of a public record. In setting a reasonable fee for a copy, the custodian of the public records should consult the manufacturer of the copying machine to determine the actual cost of copies. OAG 80-209.
6B. Improper
A county clerk, acting as clerk of fiscal court, must supply a certified copy of minutes of a fiscal court meeting as part of the duties as clerk of a fiscal court and can not impose the separate fee of a county clerk for the copies. OAG 94-38.
If records requested from a county clerk are not among those identified in KRS 64.012 and governed by that statute, the amount which may be charged for copies is governed by KRS 61.874(2), and any fee charged in excess of the actual cost to the agency is a violation of the Open Records Act. OAG 92-79.
The university of Kentucky medical center acts improperly in charging a $1 per page reproduction fee for copies of records; the center must calculate a reasonable fee based on its actual costs, excluding the cost of staff, pursuant to KRS 61.874(2). OAG 91-098.
A city acts inconsistently with provisions of the Open Records Act where, in contravention of KRS 61.874(2), it establishes a 25¢ per page fee for copies of records, when such fee is not based upon the actual cost, exclusive of personnel expenses, for making copies. OAG 90-50.
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.
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).
The City of Paducah subverted the intent of the Open Records Act, short of denial of inspection, in imposing excessive copying charges for oversized copies, and it is statutorily obligated to recalculate its copying charge to reflect its actual costs. 04-ORD-217 (11-17-04).
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. 96-ORD-267 (12-18-96).
The lottery corporation improperly assesses a $100 "production charge" to reproduce records which it agreed to release. 93-ORD-44 (4-13-93).
7. Format
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).
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.GNP 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).
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. (Annotation from former KRS 61.975.) OAG 92-99.
Arrest records and incident reports of a local police department in domestic violence and abuse situations are not exempt from public inspection; if such material is not stored on a database, the department is merely required to make the material available in the format in which it has been gathered. (Annotation from former KRS 61.975.) OAG 91-12.
Records that have not been inspected need not be furnished to the requesting party by "fax" transmission. OAG 89-96.
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).
8. Noncommercial or commercial purpose
A public agency properly denies a request for a copy of its computer database where the requesting party's purpose is clearly commercial; purpose is directly relevant in determining the propriety of release of a database. (Annotation from former KRS 61.975.) OAG 91-116.
KRS 61.970(4) provides an additional statutory exemption from copying governmental databases or geographic information systems when the requesting party requests a copy of such public records for a commercial purpose. (Annotation from former KRS 61.970.) OAG 91-4.
When enjoining enforcement of Kentucky statute allowing state custodian to charge reasonable fee for producing copies of nonexempt motor vehicle accident reports, district court failed to provide adequate findings of fact or conclusions of law regarding factors for granting preliminary injunction, thus requiring remand for requisite findings with respect to plaintiffs' "as applied" challenge to statute, alleging that agency responsible for implementing statute had applied "reasonable fee" provision in arbitrary and discriminatory manner insofar as commercial users were concerned. Amelkin v. McClure (C.A.6 (Ky.) 1999) 168 F.3d 893, rehearing and suggestion for rehearing en banc denied, vacated 120 S.Ct. 630, 528 U.S. 1059, 145 L.Ed.2d 507, on remand 205 F.3d 293, rehearing denied. Injunction 204
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)
It is improper for a county board of education to restrict the secondary use of public records requested for a noncommercial purpose. 95-ORD-77 (5-18-95).
An agency may require a generalized statement of intended use of records to aid in the determination of the appropriate fees to be assessed should the request involve the use of non-exempt records for a commercial purpose. 95-ORD-17 (2-17-95).
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. 95-ORD-9 (1-25-95).
The medicaid services department properly denies a request for records stored on database, where the requester acknowledges that her purpose in seeking access to the records was a commercial one. (Annotation from former KRS 61.970.) 94-ORD-33 (3-9-94).
Under the clear mandate of KRS 61.970(4), a personnel department may deny a request for access to its database when a dual purpose is certified and one of those purposes is commercial. (Annotation from former KRS 61.970.) 93-ORD-62 (5-18-93).
61.8745 Damages recoverable by public agency for person's misuse of public records
A person who violates subsections (2) to (6) of KRS 61.874 shall be liable to the public agency from which the public records were obtained for damages in the amount of:
(1) Three (3) times the amount that would have been charged for the public record if the actual commercial purpose for which it was obtained or used had been stated;
(2) Costs and reasonable attorney's fees; and
(3) Any other penalty established by law.
HISTORY: 1994 c 262, § 7, eff. 7-15-94
61.876 Agency to adopt rules and regulations
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
(3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies.
HISTORY: 1976 c 273, § 4, eff. 6-19-76
NOTES OF DECISIONS AND OPINIONS
Request procedures 1
Rules and regulations 2
Facilities 3
1. Request procedures
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 school council subverts the intent of the Open Records Act by providing copies of requested records on computer disk where the requesting party does not own a computer and is not skilled in the use of computers, and is thus effectively denied access to the records; the council must either provide copies in paper form or arrange for the requesting party to use its computer to review the records. OAG 93-ORD-46 (4-19-93).
2. Rules and regulations
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).
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 University of Kentucky violates the Open Records Act by denying a request for statutes, regulations, and rules governing archives and records on the grounds that it was not required to conduct research when these records should have been compiled and stored in accordance with its records retention and disposal schedule; it further subverted the intent of the Open Records Act by failing to adequately oversee records management and by failing to develop a coherent records management scheme for unscheduled records. OAG 94-ORD-121 (10-25-94).
The University of Kentucky violates the Open Records Act by failing to provide requester with a copy of its records retention and disposal schedule; the university records custodian is not responsible for records management pursuant to KRS 171.640. OAG 94-ORD-12 (2-1-94).
3. Facilities
An occupational board can have its official office in a private residence, and the records of the agency may be kept in such office. OAG 81-269.
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).
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).
61.878 Certain public records exempted from inspection except on order of court; restriction of state employees to inspect personnel files prohibited
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
(b) Records confidentially disclosed to an agency and compiled and maintained for scientific research. This exemption shall not, however, apply to records the disclosure or publication of which is directed by another statute;
(c) 1. Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records;
2. Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained:
a. In conjunction with an application for or the administration of a loan or grant;
b. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154;
c. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
d. For the grant or review of a license to do business.
3. The exemptions provided for in subparagraphs 1. and 2. of this paragraph shall not apply to records the disclosure or publication of which is directed by another statute;
(d) Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in paragraph (c) of this subsection;
(e) Public records which are developed by an agency in conjunction with the regulation or supervision of financial institutions, including but not limited to, banks, savings and loan associations, and credit unions, which disclose the agency's internal examining or audit criteria and related analytical methods;
(f) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired. The law of eminent domain shall not be affected by this provision;
(g) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again;
(h) Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884;
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly;
(m) 1. Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to:
a. Criticality lists resulting from consequence assessments;
b. Vulnerability assessments;
c. Antiterrorism protective measures and plans;
d. Counterterrorism measures and plans;
e. Security and response needs assessments;
f. Infrastructure records that expose a vulnerability referred to in this subparagraph through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems;
g. The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems of any building or facility owned, occupied, leased, or maintained by a public agency; and
h. Records when their disclosure will expose a vulnerability referred to in this subparagraph and that describe the exact physical location of hazardous chemical, radiological, or biological materials.
2. As used in this paragraph, "terrorist act" means a criminal act intended to:
a. Intimidate or coerce a public agency or all or part of the civilian population;
b. Disrupt a system identified in subparagraph 1.f. of this paragraph; or
c. Cause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency.
3. On the same day that a public agency denies a request to inspect a public record for a reason identified in this paragraph, that public agency shall forward a copy of the written denial of the request, referred to in KRS 61.880(1), to the executive director of the Office for Security Coordination and the Attorney General.
4. Nothing in this paragraph shall affect the obligations of a public agency with respect to disclosure and availability of public records under state environmental, health, and safety programs.
5. The exemption established in this paragraph shall not apply when a member of the Kentucky General Assembly seeks to inspect a public record identified in this paragraph under the Open Records Law; and
(n) Public or private records, including books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, having historic, literary, artistic, or commemorative value accepted by the archivist of a public university, museum, or government depository from a donor or depositor other than a public agency. This exemption shall apply to the extent that nondisclosure is requested in writing by the donor or depositor of such records, but shall not apply to records the disclosure or publication of which is mandated by another statute or by federal law.
(2) No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.
(3) No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
(4) If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
(5) The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
HISTORY: 2005 c 93, § 3, eff. 3-16-05; 2005 c 45, § 6, eff. 6-20-05; 1994 c 450, § 34, c 262, § 5, eff. 7-15-94; 1992 c 163, § 5, eff. 7-14-92; 1986 c 494, § 24; 1976 c 273, § 5
Legislative Research Commission Note (3-16-05): The Office of the Kentucky Attorney General requested that amendments in 2005 Ky. Acts ch. 45, sec. 6, and ch. 93, sec. 3, to the arrangement of the paragraphs of subsection (1) of this section be changed. The change was requested "in the interest of preventing confusion to the public and public agencies" and was made by the Statute Reviser under the authority of KRS 7.136.
Legislative Research Commission Note (3-16-05): This section was amended by 2005 Ky. Acts chs. 45 and 93, which do not appear to be in conflict and have been codified together.
NOTES OF DECISIONS AND OPINIONS
Constitutional issues 1
In general 2
Personal information 3
Personal information - In general 3a
Personal information - Names and addresses 3b
Personal information - Customer billing records 3c
Personal information - Medical, ambulance or death records 3d
Personal information - Inmates 3e
Confidential or proprietary material 4
Loans, grants or business assistance 5
Assessments, tax information, revenue bonds 6
Business licenses 7
Business locations 8
Real estate appraisals, property information 9
Civil litigation 10
Exam questions and data 11
Law enforcement investigatory materials 12
Preliminary drafts, notes 13
Preliminary recommendations and memoranda 14
Correspondence with private individuals 15
Federal law prohibition 16
Statutory prohibition 17
Statistical information 18
Privileged material 19
Exchange between public agencies 20
Separation of exempt and nonexempt material 21
Court orders and records 22
Public employees and licensees 23
Public employees and licensees - In general 23a
Public employees and licensees - Job applications, classifications and pay 23b
Public employees and licensees - Discipline 23c
Public employees and licensees - Evaluations 23d
Public employees and licensees - Complaints 23e
Workers' compensation and unemployment records 24
Administrative investigations 25
Inspection of own records 26
Government expenditures, budgets 27
Procedural issues 28
Student records 29
1. Constitutional issues
Argument that statute excluding certain records from Open Record Act was unconstitutional was first raised on appeal and thus not preserved for review. Hoy v. Kentucky Indus. Revitalization Authority (Ky. 1995) 907 S.W.2d 766. Appeal And Error 170(2)
Provisions of Kentucky Open Records Law, giving custodian of accident records the ability to redact personal information before providing report to news-gathering organizations, did not support finding that Kentucky statute restricting disbursement of motor vehicle accident reports would directly and materially advance government's interest in protecting privacy of accident victims, as required to survive First Amendment scrutiny, since there was no statutory language compelling custodian to redact such personal information. Amelkin v. McClure (C.A.6 (Ky.) 1999) 168 F.3d 893, rehearing and suggestion for rehearing en banc denied, vacated 120 S.Ct. 630, 528 U.S. 1059, 145 L.Ed.2d 507, on remand 205 F.3d 293, rehearing denied. Constitutional Law 90.1(1); Records 31
Cancelled bail bond checks showing disbursements from a public account contain no information of a personal nature, and inspection thereof cannot be barred by KRS 61.878(1)(a) or US Const Am 5. OAG 89-35.
The labor cabinet may not deny access to copies of the list that shows the eligible voters and the record of these eligible voters who cast votes in elections for the governor's employee advisory council conducted by the labor cabinet. OAG 02-ORD-55 (3-15-02).
2. In general
Judicial review of an agency's invocation of the privacy exemption of the Open Records Act is reviewed de novo, and requires that the agency prove disclosure would be a clearly unwarranted invasion of privacy. Cape Publications v. City of Louisville (Ky.App. 2006) 191 S.W.3d 10. Records 63
Authority of Attorney General to require compliance with request for production of documents pursuant to statute authorizing Attorney General to institute action to recover improper payments is independent of the Open Records Act. Strong v. Chandler (Ky. 2002) 70 S.W.3d 405. Attorney General 7
Right to an independent investigation conducted by the Attorney General to determine whether to institute action to recover improper payments is superior to any rights granted or implied under the Open Records Act. Strong v. Chandler (Ky. 2002) 70 S.W.3d 405. Records 50
Personal privacy exemption of the Open Records Act contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof, and moreover, the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Records 63
Public's right to disclosure under Open Records Act is premised only upon its right to be informed as to whether governmental agencies properly execute their statutory functions. Hines v. Com., Dept. of Treasury (Ky.App. 2001) 41 S.W.3d 872. Records 50
In determining whether information sought by attorney under Open Records Act for marketing purposes was subject to nondisclosure as unwarranted invasion of personal privacy, court's analysis did not turn on purposes for which request for information was made or identity of person making request; Legislature intended to grant any member of public as much right to access to information as the next. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 52; Records 58
In determining whether information sought under Open Records Act is subject to nondisclosure as unwarranted invasion of personal privacy, court's analysis does not turn on purposes for which request for information was made or identity of person making request, but rather only relevant public interest in disclosure to be considered is extent to which disclosure would serve principle purpose of Act. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 52; Records 58
When individual enters on public way, breaks law, or inflicts tort on his fellow man, individual forfeits his privacy to certain extent for Open Records Act purposes. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58
Basic purpose of disclosure under Open Records Act, focusing on citizens' right to be informed as to what their government is doing, is not fostered by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about agency's own conduct. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58
The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions, and inspection of records may reveal whether the public servants are indeed serving the public while the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co. (Ky. 1992) 826 S.W.2d 324.
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 City of Danville violated the Open Records Act in denying a request for a petition signed by individuals who support the sale of city property to a local developer that was circulated during an executive session meeting; such a petition cannot be characterized as "letter exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondence depends on assurances of confidentiality", but is in the nature of a communication upon which the commission is expected to rely in taking action relative to the sale of the property, and thus became an open record upon submission to the commission notwithstanding the fact that the commission had taken no final action in the matter. 04-ORD-192 (10-20-04).
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).
The question of whether a public agency properly denies a request to inspect records becomes moot when the agency subsequently releases the records for inspection. OAG 91-140.
A letter from a police chief to a school superintendent is not a record of a law enforcement agency, exempt from inspection by KRS 61.878(1)(f), nor is it private correspondence, exempt from inspection by KRS 61.878(1)(g). OAG 90-140.
The corrections cabinet cannot grant access to documents relative to a person's participation in the treatment program for sexual offenders when its records reflect that the person is not a participant in that particular program. OAG 88-30.
Policy-procedure manuals of a jail are not open to public inspection. OAG 79-546.
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).
3. Personal information
3A. In general
Public's right to be informed under Open Records Act as to whether governmental agencies properly execute their statutory functions is not fostered by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct. Hines v. Com., Dept. of Treasury (Ky.App. 2001) 41 S.W.3d 872. Records 58
Primary consideration in deciding whether to apply personal privacy exclusion from Open Records Act is nature of information which is subject of requested disclosure; exclusion does not apply if it is type of information about which public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment or humiliation. Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co. (Ky. 1997) 941 S.W.2d 469. Records 58
In determining whether request for information under Open Records Act constitutes clearly unwarranted invasion of personal privacy, court's analysis begins with determination of whether subject information is of personal nature, and if so, court must then determine whether public disclosure would constitute clearly unwarranted invasion of personal privacy. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58
Determination of whether request for information under Open Records Act constitutes clearly unwarranted invasion of personal privacy entails comparative weighing of antagonistic interests in which privacy interest in nondisclosure is balanced against general rule of inspection and its underlying policy of openness for general good, and circumstances of given case will affect balance. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58; Records 64
KRS 61.878(1)(a) reveals an unequivocal legislative intention that certain records, albeit they are "public", are not subject to inspection, because disclosure would be a clearly unwarranted invasion of personal privacy; the language of (1)(a) reflects a public interest in privacy, and the statute exhibits a general bias favoring disclosure, placing the burden of proving exempt status on the agency which would withhold records and all exceptions must be strictly construed. Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co. (Ky. 1992) 826 S.W.2d 324.
Client complaints alleging sexual improprieties by a psychologist and the clients' and doctor's depositions are within the exception from disclosure in KRS 61.878(1)(a), since the information in the complaint file is of a very personal nature and the disclosure of the public record would constitute a serious invasion of the personal privacy of those who complained against the psychologist and other former clients; the purpose of the policy of disclosure is to subserve the public interest, not to satisfy the public's curiosity, and where the board of examiners of psychologists has effectively promoted the public interest in regulation and the countervailing public interest in personal privacy is strongly substantiated, further disclosure would be a clearly unwarranted invasion of privacy. Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co. (Ky. 1992) 826 S.W.2d 324.
Because the only existing record which is responsive to the request for access to the schedule of the former Deputy Secretary of the Transportation Cabinet is his "personal calendar", and the Kentucky Court of Appeals conclusively established that records of this type are exempt from inspection or disclosure pursuant to KRS 61.878(1)(i) and (j) in Courier Journal and Louisville Times Co. v. Jones, Ky. App. 895 S.W.2d 6 (1995), the Cabinet properly denied the request on this basis. 05-ORD-145 (7-11-2005).
Because the requested records contained "personal information", the Transportation Cabinet did not violate the Open Records Act in making the disclosure of Medical Review Board records concerning an individual's driving record contingent upon receipt of her written consent; 18 U.S.C. sec. 2721-2725, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), in requiring the requester to verify that he is authorized to receive the records, and any less would constitute a violation of 18 U.S.C. sec. 2721(b)(13). 05-ORD-131 (6-28-2005).
The Lexington Fayette Urban County Government, Division of Fire and Emergency Services properly relied upon KRS 61.872(6) in denying a request for "all documents in any way mentioning or referring to" a named firefighter recruit, and properly denied a request for redacted versions of the written evaluations for each member of the recruit class on the basis of KRS 61.878(1)(a) as an unwarranted invasion of personal privacy. 05-ORD-014 (2-4-05).
Where records requested are of a limited class, to wit personnel records, and are identified by name, the request is sufficiently specific and the agency must discharge its KRS 61.880(1) duties; overruling OAG 88-53 and succeeding opinions/decisions establishing a high standard of specificity for requests for personnel files (and by extension inmate folders). 03-ORD-012 (1-14-03).
A university properly advises a requesting party that a credit card receipt sent to the university by the credit card issuer is exempt from public inspection pursuant to KRS 61.878(1)(a), inasmuch as the card bears only the university logo and is the financial responsibility of the individual whose name appears on it. OAG 92-110.
Access to telephone records is properly denied by a county attorney's office where the public interest in disclosure of the records is outweighed by the individual's right to privacy. OAG 91-214.
The disclosure of records reflecting the names of Kentucky State Police officers currently assigned to the executive security detail to protect the Governor has not been shown to imperil the Governor or the officers and does not require the reassignment of the officers each time their identities would be disclosed in an open records request. OAG 02-ORD-211 (11-08-02).
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).
A settlement agreement of a lawsuit against an urban county government containing a confidentiality clause is not sufficient to deny public inspection of the records of the urban county government. OAG 98-ORD-24 (2-26-98).
The city of Louisville improperly relied on KRS 61.878(1)(i) in denying a requester access to the visitors' sign-in log at the city hall; although the city may exclude certain entries from the log pursuant to KRS 61.878(1)(a) on a showing that the visitor's privacy interest is superior to the public's interest in the disclosure, it may not withhold the log in its entirety. OAG 96-ORD-220 (10-16-96).
It is improper for an urban-county government to adopt a policy of blanket exclusion of 911 calls from public inspection; however, certain calls will raise unique privacy concerns which would justify denial of access to the calls and such reasons for the denial must be specifically articulated. OAG 94-ORD-144 (12-9-94).
It is improper for an urban-county government to withhold the applications to operate alarm systems where the public's interest in ascertaining whether the division of police is properly executing its regulatory function relative to the alarm systems is superior to the privacy interests of persons who submit the applications. OAG 94-ORD-143 (12-1-94).
A city commission improperly denies a request for unredacted viewer call-in sheets generated in the course of a televised public meeting where the caller's privacy interests are outweighed by the public's interest in disclosure. OAG 94-ORD-45 (3-23-94).
3B. Names and addresses
Disclosure of names, addresses and other identifying information about victims of sexual offenses would constitute an unwarranted invasion of personal privacy, within meaning of Open Records Act, and thus city could redact such information from police incident reports, despite newspaper's contention that sexual crimes were no different from other crimes; sexual offense could not be separated from sexual act, and public's interest in disclosure was outweighed by victims' privacy interests, coupled with public interest in insuring victims' physical safety and encouraging them to report sexual offenses. Cape Publications v. City of Louisville (Ky.App. 2003) 147 S.W.3d 731, review denied. Records 58; Records 66
While place of one's employment may not rise to personal level, for purposes of information request under Open Records Act, other information such as marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which individual has at least some expectation of privacy. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58
Although telephone numbers and home addresses are often publicly available through sources such as telephone directories and voter registration lists, this information is not less private for Open Records Act purposes simply because information is available someplace; question of privacy under Act is not one of total nondisclosure, but of individual's interest in selective disclosure. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58
KRS 61.878(1)(a) requires disclosure of the business addresses of members of the university of Kentucky alumni association, but not the home addresses. If an address is both a home and business address, it should be deemed to be a home address for purposes of public inspection. OAG 90-60.
A public agency's denial of a request to provide the natural parents or their representative with the names and addresses of the foster parents with whom the natural parents' child has been placed is proper and can be justified under the privacy exemption to public inspection. OAG 86-28.
Absent citation to specific legal authority contrary to its position, the Attorney General defers to the Education Cabinet in its interpretation of the confidentiality provision found at KRS 341.190, extending protection to records "made by" the Cabinet, and therefore in its denial of a request for Unemployment Insurance Commission decisions made by UI; the decision overrules OAG 83-405 on the basis of subsequent amendments in the law. 05-ORD-186 (8-29-2005).
The Louisville Regional Airport Authority properly relied on KRS 61.878(1)(k), incorporating 49 C.F.R. part 24.9(b) into the Open Records Act, in denying a request for information specific to individuals relocated under the Relocation Act; the federal regulation erects a barrier to public access which the Attorney General is not empowered to breach. 05-ORD-128 (6-21-2005).
The University of Louisville properly relied on KRS 61.878(1)(a) in withholding the names of private donors, but not the amounts donated; the University did not meet its burden of proving personal privacy interests in the corporate donations of sufficient weight to overcome the public's interest in disclosures of the identities of the two corporate donors that requested anonymity, for the purpose of monitoring the University to assess how its decisions may be influenced by the corporate funding. 05-ORD-104 (6-1-2005).
Because KRS 237.110(8) explicitly prohibits the release of identifying information relating to concealed deadly weapon license holders and applies to the requester regardless of his identity or purpose in making the request, the Kentucky State Police properly relied upon this provision in denying the request of an attorney for copies of all materials relating to a specific CCDW license holder. 04-ORD-060 (4-16-2004).
Louisville Metro Services erroneously denied a requester access to names of licensees required to appear in reports prepared by dog wardens under KRS 258.185 (subsequently repealed 2004); although KRS 61.878(1)(a) authorizes LMAS to withhold home addresses and telephone numbers appearing in the report, that exemption does not authorize nondisclosure of names inasmuch as the public has a right to be informed that LMAS is discharging its duties under KRS 258.185. To the extent that 95-ORD-153 is inconsistent with this position, it is modified. 03-ORD-247 (12-22-03).
Seven Counties, a government funded healthcare facility, derives at least twenty-five percent of its funds from state or local authority funds and is a public agency for purposes of open records requests for records of a physician formerly employed by Seven Counties; such records are not exempt from disclosure with the exception of those portions of the records that identify the complainants by name or by personally identifiable information. OAG 02-ORD-222 (11-20-02).
A criminal trespass list compiled and maintained by the housing authority of Louisville must be disclosed, the antagonistic interests of the public's interest in knowing whether its agencies are properly executing their statutory function outweighs the individual's interest in nondisclosure of records containing their names, since a person's name is the least private thing about them and should only be withheld when there is a special reason provided by statute or court order. OAG 02-ORD-159 (9-3-02).
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. 02-ORD-36 (2-22-02).
An independent school district may properly rely on KRS 61.878(1)(k) and 61.878(1)(l), incorporating state and federal Family Education Rights and Privacy Acts, in deny a request for records relating to student enrollment in the district which contains personally identifiable information, but they may not withhold the fourth day count containing raw census data. 00-ORD-158 (8-22-00).
A county animal control department may properly deny a request for animal licensure records where the privacy interest in those records outweighs the non-open records act related public purpose supporting the request. 95-ORD-153 (10-31-95).
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. 95-ORD-151 (10-27-95).
A policy of blanket exclusion relative to the names and identifying information of persons making 911 calls for police or fire service is inconsistent with the Open Records Law. OAG 94-ORD-133 (11-9-94).
The personnel department errs in failing to release records relating to salaries, classifications, and agency affiliations of state employees stored on an existing database. OAG 93-ORD-118 (10-15-93).
A county detention center improperly relies on KRS 61.878(1)(a) and 61.878(1)(g) in denying a request for a copy of two pages of the visitors' log. 93-ORD-102 (9-1-93).
3C. Customer billing records
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).
3D. Medical, ambulance or death records
Tape recording of 911 emergency call fell within Open Records Act's exceptions to disclosure of records containing preliminary drafts and personal information that would be invasion of privacy, and thus petitioner was not entitled to that recording, though call complained of threats allegedly made by petitioner, where call did not result in final written report because no crime was committed, and petitioner sought recording for purpose of confirming identity of caller. Bowling v. Brandenburg (Ky.App. 2000) 37 S.W.3d 785, rehearing denied, review denied. Records 58
Records of Department of Insurance relating to health insurance rate and form filings and information filed in support thereof are open "to the extent provided by the Kentucky Open Records Act"; disclosure provision incorporates exceptions under Open Records Act. Southeastern United Medigroup, Inc. v. Hughes (Ky. 1997) 952 S.W.2d 195.
Although the Justice and Public Safety Cabinet cannot adopt a blanket policy of nondisclosure relative to autopsy photos, based on KRS 61.878(1)(a), facts in the record of this appeal support the Cabinet's reliance on this privacy exception and denial of the request by the Kentucky Innocence Project of the Department of Public Advocacy for autopsy photographs as part of an ongoing investigation is therefore affirmed. 05-ORD-075 (4-26-2005).
The Cabinet for Health and Family Services properly relied on KRS 620.050(5) in denying a request for records relating to a child in its custody submitted by an individual whose paternity had not been conclusively established. 04-ORD-228 (12-3-04).
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).
The medical licensure board properly denies the portion of an open records request pertaining to neuropsychological and psychiatric evaluations, pursuant to KRS 61.878(1)(a), since the subject's interest in maintaining the confidentiality of those evaluations outweighs the requesting party's interest in gaining access to them, as well as any broader public interest which may be advanced by their release. OAG 92-10.
A coroner acts improperly in failing to advise a requesting party that an autopsy report is not in his possession and to direct him to the state police which has custody of the report, but properly denies the request for inspection where a prosecution involving the death has not been concluded. OAG 91-147.
A city's policy relative to reports of ambulance runs by a public ambulance service is justified where it prohibits, pursuant to KRS 61.878(1)(a), public inspection of the records relating to particular persons transported and specific facts pertaining to those persons and their injuries. OAG 88-42.
Privacy is a personal right which generally does not survive the decedent; thus, records relating to a decedent's suicide are not protected from public inspection by KRS 61.878(1)(a). OAG 88-2.
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.
A public agency may adopt a policy involving records and documents pertaining to fire and ambulance runs whereby it prohibits public inspection of material relative to the names and addresses of victims, reporting parties, and descriptions of personal losses, injuries, and illnesses of persons receiving fire and ambulance services. OAG 86-25.
Reports of the ambulance runs of county ambulance service, including the name, address, and age of the person transported, where the person was picked up and transported, and the nature of the run are exempted from public inspection as a protection against an unwarranted invasion of personal privacy. OAG 83-344.
Death certificates are not exempt from public inspection under the open records law. OAG 81-400.
An urban county government division of police improperly redacted personal information from accident reports disclosed to news-gathering organizations, the police's reliance on KRS 61.878(1)(a) is inappropriate where KRS 189.635(5) place no restriction on the information in reports that must be disclosed. OAG 02-ORD-19 (1-29-02).
3E. Inmates
Although the Department of Corrections properly denied an inmate request for a letter written by his roommate, a fellow state inmate, to the commissioner, which contained a direct reference to the requester, on the basis of KRS 197.025(2), the Department should avoid narrowing legalistic interpretations of the statute when its underlying purpose is not served by denying access. OAG-04-ORD-086 (6-15-2004).
Department of Corrections properly denied Commonwealth's Attorney's requests for records reflecting factual admissions made by a convicted sex offender while participating in the Department's Sex Offender Treatment Program on the basis of KRS 197.440, incorporated into the Open Records Act by operation of KRS 61.878(1)(1). 03-ORD-039 (2-27-03).
Kentucky State penitentiary properly argued that inmate's appeal of open record denial was time-barred on the basis of KRS 197.025(3); penitentiary also properly denied request for blank form" on the basis of KRS 197.025(2), insofar as form did not contain a specific reference to inmate requester. 03-ORD-007 (1-13-03).
The state penitentiary properly denies an inmate's request for his preparole progress report, which contains the caseworker's opinions relative to the inmate's progress and, thus, is exempt from inspection under KRS 61.878(1)(h) as being purely advisory in character. OAG 92-125.
A public agency acts properly in denying an inmate's request to inspect conflict sheets or special notice forms in his institutional file as such documents, which do not represent final agency action, which contain opinions of various persons from various sources, and which may affect the security of the institution and the safety of the inmates and staff, may be withheld from public inspection pursuant to KRS 61.878(1)(a), 61.878(1)(g), and 61.878(1)(h). OAG 87-36.
To protect the privacy rights of inmates, records of confiscated inmate property in the Kentucky state reformatory are exempt from public inspection. OAG 82-395.
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).
The state police improperly relies on KRS 61.878(1)(i) and 61.878(1)(k) in denying an inmate's request for copies of graphs and videotapes made as he underwent a polygraph examination. OAG 93-ORD-124 (10-29-93).
An inmate's appeal of the department of corrections' denial of his request that is not initiated within twenty business days of denial, as required by KRS 197.025(3), is time barred. OAG 02-ORD-54 (3-14-02).
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).
4. Confidential or proprietary material
If it is established that document offered in connection with health insurance rate setting is confidential or proprietary, and that disclosure to competitors would give them substantially more than trivial unfair advantage, document should be protected from disclosure to those who are not parties to hearing on allegedly excessive health insurance rates. Southeastern United Medigroup, Inc. v. Hughes (Ky. 1997) 952 S.W.2d 195.
Documents in health insurer's records were proprietary and contained information that insurer would not ordinarily share with its competitors and, thus, documents were not subject to public disclosure in proceedings on whether insurer's requested rates were excessive. Southeastern United Medigroup, Inc. v. Hughes (Ky. 1997) 952 S.W.2d 195.
Records containing financial information of privately owned marina operators were exempt from disclosure under Open Records Act where disclosure would unfairly advantage competing operators by allowing them to easily ascertain economic status of entities, and where statements were disclosed confidentially to public entity. Marina Management Service, Inc. v. Com. of Ky., Cabinet for Tourism (Ky. 1995) 906 S.W.2d 318, rehearing denied. Records 59
Records including confidential audited financial reports of privately owned corporation which have been submitted to a public agency pursuant to a license agreement with the State qualified for exempt status under Open Records Act and statutorily created legislative committee, Legislative Program Review and Investigation Committee, could not obtain them under Act and could not disclose any information already obtained from these reports. Marina Management Service, Inc. v. Com. of Ky., Cabinet for Tourism (Ky. 1995) 906 S.W.2d 318, rehearing denied. Records 59
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 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 proprietary 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 Cabinet for Families and Children properly denied a grandmother's request for all reports and information pertaining to her grandchildren on the basis of KRS 620.050(5); the grandmother did not fall within one of the excepted categories from the general rule of confidentiality. 03-ORD-070 (4-8-03).
A public official may disclose information pertaining to the lottery's accounts receivable even though another public official might consider the information confidential. OAG 93-19.
The board of nursing may release social security numbers to a nonprofit corporation under a promise of confidentiality. OAG 92-149.
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.
The finance and administration cabinet improperly withholds correspondence pertaining to bids once a contract is awarded. OAG 91-099.
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 transportation cabinet improperly denies a request by an insurance company to inspect a "Form E" filed by a motor carrier with the cabinet. OAG 91-44.
Form E (uniform motor carrier bodily injury and property damage liability certificate of insurance), required to be filed by a motor carrier with the transportation cabinet pursuant to KRS Ch 281 and 601 KAR 1:100 to provide evidence of insurance, is a public record and is not exempt from inspection pursuant to KRS 61.878(1)(b). OAG 89-75.
Where a company furnishes certain material along with its bid proposal under KRS 45A.085 for a contract with a public agency, personnel resumes of the company are protected from public inspection by its competitors under KRS 61-878(1)(a); further, financial statements, project narratives, work plan and pricing schedules of the company are protected from public inspection by its competitors under KRS 61.878(1)(b). OAG 88-1.
A public agency's withholding of records as trade secrets is improper where the agency has not fulfilled the statutorily imposed duty of enacting administrative regulations as a part of the process by which records are designated as trade secrets. OAG 86-41.
A public agency's denial of a request to inspect a designated trade secret, materials relative to a proposed Union Carbide PCB removal plant, was proper under the confidentiality provision of KRS 224.035. OAG 86-1.
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.
In a request for inspection of records relating to an application for an industrial revenue bond, the Jefferson county judge/executive properly denied inspection of the application, the amount of the bond issue sought, the intended use, the preliminary decision by the government agencies, the reason for the decision, any further action recommended by the county, and correspondence between the applicant and the county and between county agencies. However, any of the above which are contained or incorporated into the final decision denying or approving the bond issue are open to inspection. OAG 84-98.
A proposal document which contains specially designed plans in the nature of trade secrets made in response to an advertised request for proposals is not subject to mandatory public inspection. OAG 83-256.
The identity of employers in the employment compensation program is confidential by statute. The confidentiality also applies to "common paymaster accounts." OAG 83-1.
The confidentiality provision of the Kentucky state government affirmative action plan is merely a policy statement on sexual harassment and is not an enactment of the general assembly as required by KRS 61.878(l)(1), therefore the cabinet for families and children improperly denied the request for such records. OAG 98-ORD-45 (4-7-98).
The justice cabinet's division of grants management improperly denies access to the grant application submitted by a county drug task force where the division does not offer sufficient proof or legal authority supporting its position that all information contained in the application is generally recognized as confidential or proprietary information. OAG 97-ORD-132 (8-26-97).
The transportation cabinet improperly denies an open records request for the "ownership section" of the prequalification applications based on the argument that this information is proprietary. OAG 96-ORD-221 (10-16-96).
Kentuckiana regional planning and development agency (KIPDA) offered no proof, beyond a bare allegation, that the disputed records were generally recognized as confidential or proprietary, and that the disclosure would result in competitive harm to the private entity submitting them. OAG 96-ORD-135 (6-12-96).
The charitable gaming division fails to sustain its burden of proof in showing that records confidentially disclosed for the grant or review of a license to do business were generally recognized as confidential or proprietary under KRS 61.878(1)(c). OAG 95-ORD-107 (7-24-95).
The lottery corporation violates the Open Records Act in responding to requests for various records relating to employees and contracts by failing to explain how the information is proprietary and therefore failing to meet its statutory burden of proof. OAG 95-ORD-27 (2-27-95).
The social insurance department improperly relies on KRS 61.878(1)(c) in denying a request for proposals for refugee resettlement funds submitted by charitable organizations where it does not establish that (1) the proposals were confidentially disclosed to it, (2) the proposals were generally recognized as confidential or proprietary, (3) disclosure would permit an unfair commercial advantage to competitors, and (4) the proposals were not compiled and maintained in conjunction with the regulation of a commercial enterprise. OAG 93-ORD-43 (4-13-93).
Under KRS 61.878(1)(2), a university improperly denies a request for copies of the request letter and agency response from an earlier open records request. OAG 92-ORD-1440 (10-29-92).
The city of Pewee Valley properly denied a request for emails exchanged by the Mayor and representatives of private entities that propose to erect a cellular tower relative to relocation of the tower, as well as maps generated by private entities that identify the most suitable area for the tower. OAG 01-ORD-222 (11-16-01).
5. Loans, grants or business assistance
A letter of intent regarding an economic development incentive package is a preliminary document exempt from disclosure. Documents submitted to the finance and administration cabinet and to the legislature for approval constitute final agency action and are not exempt from disclosure. A special presentation prepared as a part of preliminary negotiations does not reflect final agency action and is exempt from disclosure unless incorporated into the final agency action. OAG 91-21.
The identity of recipients of loans or grants from a community development agency is not confidential. OAG 80-310.
The industrial revitalization authority properly relies on KRS 61.878(1)(a) in denying the requesting party access to private financial records and commercially sensitive records of a business entity seeking state assistance in the form of financial inducements; however, the authority errs in failing to release information which is relevant to its determination whether the business entity is eligible for the inducements, including the business's need for economic revitalization, the projected amount and timing of investments, and the projected number of employees to be retained and hired in the future. OAG 93-ORD-85 (7-20-93).
6. Assessments, tax information, revenue bonds
Financial documents, such as financial history and detailed descriptions of corporation's productivity, efficiency and financial stability, that were submitted by corporation to Kentucky Industrial Revitalization Authority (KIRA) to obtain investment tax credits, in compliance with application procedures, were specifically excluded from Open Records Act. Hoy v. Kentucky Indus. Revitalization Authority (Ky. 1995) 907 S.W.2d 766. Records 59
The Department of Revenue properly denied a request for a copy of the company's sales and use tax records, where the requester had not certified that he was currently an authorized agent of the company. 04-ORD-152 (9-7-04).
The full text of a property tax roll is subject to public inspection, but a property valuation administrator's work papers and documentation supporting the tax roll are exempt from public inspection. OAG 89-12.
In a request for inspection of records relating to an application for an industrial revenue bond, the Jefferson county judge/executive properly denied inspection of the application, the amount of the bond issue sought, the intended use, the preliminary decision by the government agencies, the reason for the decision, any further action recommended by the county, and correspondence between the applicant and the county and between county agencies. However, any of the above which are contained or incorporated into the final decision denying or approving the bond issue are open to inspection. OAG 84-98.
An urban county government may not withhold a list of delinquent taxpayers where the public's interest in monitoring who has failed to meet these legal obligations outweighs the privacy interests of the delinquent taxpayers. OAG 97-ORD-009 (1-22-97).
7. Business licenses
Although its denial was procedurally deficient, the Kentucky Athletic Commission properly relied on KRS 61.878(1)(a) in redacting the height and weight of an applicant for licensure as a professional wrestler; because KRS 229.121 prohibits issuance of a license to a person under 18 years of age, the Commission improperly redacted the applicant's date of birth inasmuch as disclosure of this item of information serves an open records related public interest in regulation that outweighs the applicant's privacy interests. 03-ORD-080 (4-17-03).
It is improper for the Kentucky Judicial Form Retirement System to deny access to a judge's pension computation form, information reflecting the years of service and compensation must be disclosed, but the information reflecting service transferred from Kentucky Employees Retirement System must be redacted from the form pursuant to KRS 61.878(1)(l), 61.661 and 61.878(4). OAG 99-ORD-209 (11-18-99).
A licensing agency cannot rely on the privacy exemption as justification for denial of a request to inspect public records showing the name and address of a licensee's former employer, where the prior employment is a prerequisite for licensure. Information given to a governmental agency upon which the agency must rely is generally not exempt from disclosure even if contained in correspondence from private individuals. OAG 90-142.
Information concerning the mere names of contractors or construction companies licensed to exist and paying the county occupational tax is not of such a nature as to preclude public inspection thereof. OAG 87-57.
A city's denial of a request to inspect documents prepared by the police chief concerning his investigation into an application for a municipal adult entertainment license, the document's having been prepared at city council's request in connection with its review of the application, was proper under the open records law so long as the requested document neither indicates final municipal action nor involves a preliminary report incorporated into a final municipal report. OAG 85-63.
Occupational license fee records are open to public inspection to obtain (1) principal business location, address, and telephone number of each person or entity filing questionnaires with the sinking fund; (2) the trade name of such person or entity if different from the name under which it files the questionnaire; and (3) the nature of business of the person or entity filing the questionnaire, all of which information has been requested of the person or entity filing the questionnaire. OAG 85-1.
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.
The social security number and the home address of licensees of the Kentucky state racing commission are excluded from public inspection under the privacy exemption of KRS 61.878(1)(a). However, a licensee's home address must be made available in the absence of a work address, since the purpose of the license is to protect the public. OAG 84-51.
A licensing board must make available to the public any list which it has of the names and addresses of licensees. If the board does not have a licensee's work address, the board must divulge that person's home address. OAG 82-394.
The public is entitled to inspect records pertaining to licensing of occupations and professions, but a licensing board can exercise its discretion as to whether to release all of the information in its files or to withhold some of the information under one of the exemptions in KRS 61.878. OAG 79-275.
The cabinet for health services properly denies a request for licensure inspection reports for a two-year period where the request implicated various records containing information which is mandatorily confidential and the burden of separating exempt and nonexempt information would place an unreasonable burden on the cabinet. OAG 97-ORD-88 (6-6-97).
The real estate commission improperly denies a request to inspect an application for a real estate broker's license; although the commission may redact any information which is of a clearly personal nature, it must release the application, since the public's interest in insuring that a licensee satisfies the minimum qualifications for licensure is superior to the licensee's privacy interests. OAG 92-ORD-1238 (9-15-92).
Private information regarding operators of and performers in adult entertainment establishments, including names, addresses and telephone numbers, required to be submitted in connection with license applications, was not subject to public disclosure under Kentucky Open Records Act. Kentucky Restaurant Concepts, Inc. v. City of Louisville, Jefferson County, Ky. (W.D.Ky. 2002) 209 F.Supp.2d 672, remanded 110 Fed.Appx. 678, 2004 WL 2299274. Records 58
8. Business locations
The economic development cabinet improperly denies a request for access to computer files on businesses certified for enterprise zones; the public's interest in monitoring activities of enterprise zones outweighs the businesses' interest in maintaining the confidentiality of the requested information. OAG 91-105.
9. Real estate appraisals, property information
Individual property owners' privacy interests outweighed negligible public interest in releasing individualized valuation information regarding unclaimed property, and thus, disclosure of valuation information would constitute unwarranted invasion of personal privacy; public's right pursuant to Open Records Act to be informed regarding Department of Treasury's execution of its statutory functions was satisfied by publication of names of unclaimed property owners, as well as information regarding total values of property held, while release of requested information for value of each individual unit could pertain to owners' possible incomes, which was information of intimate nature. Hines v. Com., Dept. of Treasury (Ky.App. 2001) 41 S.W.3d 872. Records 58
A property valuation administrator improperly denies a requesting party access to mapping cards. OAG 92-30.
The Kentucky heritage council acts consistently with the Open Records Act in denying a request for correspondence with a private individual and preliminary drafts of an easement instrument. OAG 91-229.
The transportation cabinet properly denies inspection of appraisals on identified property being acquired for projects where not all of the property involved has been acquired. OAG 91-159.
The transportation cabinet properly denies a request to inspect documents pertaining to its decision to acquire property to the extent that such documents are preliminary. OAG 91-117.
A request to inspect documents pertaining to land use and zoning is properly denied where such documents are preliminary interoffice memoranda. OAG 91-108.
Documents containing information relating to lease negotiations are not exempt from public inspection under KRS 61.878(1)(g) and 61.878(1)(h) once the lease is executed or the proposed lease is rejected. OAG 91-097.
The transportation cabinet properly denies a request for inspection of state appraisals and review appraisals on one parcel of land where not all the property needed for a road relocation project has been "acquired" within the meaning of condemnation statutes and KRS 61.878(1)(d). OAG 91-83.
A city acts inconsistently with the Open Records Act in denying a request for the names of persons who had received offers to purchase from the city in connection with an airport expansion. OAG 90-15.
Records exempted from public inspection by KRS 61.878(1)(d) are so exempted until all of the property has been acquired through completed condemnation proceedings or completed negotiations and purchase, with final consideration having been determined and deeds of conveyance having been delivered. OAG 89-42.
Tax rolls are subject to inspection for five years. A property valuation administrator's property record cards and property assessment cards are not preliminary drafts and are thus subject to inspection, with the limitation that the property valuation administrator may not allow a person requesting inspection of such records to conduct his own search of the files. OAG 89-40.
Records related to locally administered, federally funded renovations of private property, including write-up orders and building inspection records, are not preliminary records, and are subject to inspection unless excluded pursuant to other specific exceptions under KRS 61.878. OAG 89-36.
Nothing in KRS 133.045 or 133.047 mandates a property valuation administrator to make available for public inspection documents that constitute preliminary worknotes exempted from public inspection by KRS 61.878(1)(g) and 61.878(1)(h). OAG 87-55.
A public agency may deny requests to inspect records relating to the acquisition of property for a right of way project, including the relocation assistance payments relative thereto, until such time as all of the property involved in the project has been acquired. OAG 85-79.
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.
The corrections cabinet properly denied inspection of a private industry proposal to sell property to the cabinet for the purpose of converting the property into a prison. This proposal constitutes an appraisal, estimate, or evaluation, relative to the acquisition of property by a public agency. OAG 84-226.
Records in a file on a proposed lease of property for public use are not open to public inspection insofar as they contain an evaluation made by or for the public agency relative to the acquisition of property or are preliminary memoranda. Bid advertisements and an agency request for more space are open to inspection. OAG 84-90.
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.
Records of property valuation administrator's office are not open for general inspection; each request to inspect must be separately considered. OAG 77-99.
Real estate appraisals on a public project need not be disclosed until all of the property for the project has been acquired. OAG 76-656.
Louisville Metro Planning and Design Services improperly relied on KRS 61.878(1)(i) and (j) in denying a request for "preapplication" zoning materials; Metro Planning's reliance on KRS 61.8781)(d) is similarly misplaced in the absence of specific proof supporting the invocation of the exception. 05-ORD-179 (8-19-2005).
Although the Transportation Cabinet violated KRS 61.880(1) by initially failing to cite the applicable exceptions, the Cabinet ultimately satisfied its burden of proof relative to the requested files and handwritten notes by invoking KRS 91.878(1)(i) and (j), and adequately explaining how those exceptions apply to the records withheld; with respect to the "older files" still at issue, the requester failed to frame his request with "reasonable particularity" so as to enable the Cabinet to identify and locate any responsive records and therefore the Cabinet properly denied his request for those records. 04-ORD-193 (10-20-04).
Although the Transportation Cabinet violated the Open Records Act in failing to disclose its electronic docketing and litigation tracking system for all pending condemnation cases dating back to 1989, the Cabinet properly relied on KRS 61.872(6) in denying the requester unrestricted access to some 20,000 hard copy litigation files that contain both excepted and non-excepted materials, and on KRS 61.878(1)(f) in refusing to disclose the appraisal amounts in pending condemnation cases. 04-ORD-117 (8-5-04).
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). 04-ORD-038 (2-26-04).
The agriculture department improperly denies a request for contracts and proposals relative to a consultant's report recommending changes in computer technology pursuant to KRS 61.878(1)(f)as the exemption applies to the acquisition of real property as opposed to personal property. 95-ORD-98 (7-7-95).
Where a city has an appraisal of city-owned property prior to an anticipated sale, the appraisal is not exempt from disclosure under KRS 61.878(1)(e) since the exemption only applies to the acquisition of property; such appraisal would be exempt under KRS 61.878(1)(i) as it would be a preliminary recommendation. 94-ORD-85 (7-11-94).
10. Civil litigation
Settlement agreement in connection with lawsuits by individuals against police department whereby government agreed to pay public funds as compensation was not protected from disclosure under personal privacy exclusion from Open Records Act, where only two of three settlement agreements said anything about privacy and privacy provisions in those agreements were clearly for benefit of government, not other parties. Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co. (Ky. 1997) 941 S.W.2d 469. Records 58
Open Meetings Act litigation exception did not apply to settlement agreements by which government agreed to pay litigants in connection with their lawsuits against police department, where agreements did not arise out of closed meetings, but were simply negotiated by counsel. Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co. (Ky. 1997) 941 S.W.2d 469. Records 57
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
Trial court's comment that Open Records Act provision exempting from inspection by any "party" of any materials pertaining to civil litigation would also apply to anyone attempting to obtain information for litigant outside rules of discovery was dicta, and thus did not constitute reversible error in action by Department of Corrections seeking reversal of Attorney General opinion ruling that records concerning prison inmate 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 63
Comparative weighing of interests between Department of Corrections' defense of qualified immunity raised in litigation concerning inmate and need for immediate public disclosure of records pertaining to inmate by newspaper pursuant to Open Records Act was not necessary since weighing of interests was only applicable to privacy exemption in Act, which was not asserted by Department of Corrections. Department of Corrections v. Courier-Journal and Louisville Times (Ky.App. 1996) 914 S.W.2d 349. Records 64
A state university's official response to the national collegiate athletic association's (NCCA) allegations concerning rule violations by the university related to university athletic staff members' sending $1,000 in cash to an out-of-state basketball recruit is not exempt from disclosure under KRS 61.878(1)(a); the response, which contained (1) the university's admission or denial of each NCAA allegation, (2) information supplied by the university under the heading of "Summary of Evidence Supporting Response," and (3) a compilation of the evidence gathered by the university in support of its response, and for which the university paid a private law firm over $400,000 to prepare, represents a legitimate inquiry into the operation of an agency of the Commonwealth, and the contents of the response are a matter of public interest the release of which would not constitute a clearly unwarranted invasion of personal privacy. University of Kentucky v. Courier-Journal & Louisville Times Co. (Ky. 1992) 830 S.W.2d 373.
A city properly denies a request for a settlement agreement adopted as a judgment of a court in its order of dismissal; because the court ordered that the terms of the agreement remain confidential, the city is required to withhold it out of deference to the judicial process. OAG 92-126.
A city improperly relies on KRS 61.878(1)(f), the "pending litigation" exception, to deny inspection of nonprivileged portions of records of payments to its attorneys where the litigation for which the attorneys' services had been retained does not fall within the parameters of that exception. OAG 92-92.
A sheriff's department improperly denies a request to inspect a settlement agreement between the department and a private party. OAG 92-17.
A public agency violates the Open Records Act when it refuses to make available for public inspection a settlement agreement entered into by such agency and two of its former employees relative to a complaint filed against such agency by those former employees. OAG 88-43.
A public agency's denial of a request to inspect documents contained in a case file involving matters which are presently being litigated is proper; once the litigation has been completed, the documents in question will be subject to public inspection unless they are excluded by other statutorily recognized exceptions to public inspection. OAG 88-31.
The department for human resources does not have to furnish a copy of depositions to a person who is the plaintiff in a suit against the department. OAG 83-194.
The Louisville Water Company improperly relied on KRS 61.878(1)(a) in denying a request for copies of settlement agreements containing confidentiality clauses, notwithstanding the threatened litigation was resolved without recourse to the courts; the privacy claim asserted on behalf of the recipients of settlements was insufficient to overcome the public's right of access to the settlement agreements themselves, and a confidentiality clause appearing in the settlement could not create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act, and a public agency may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential. 04-ORD-169 (9-15-04).
Although Murray State University properly denied a request for a settlement agreement that had not been executed and was therefore preliminary, the University improperly denied a request for billing records relating to costs associated with the defense of the case. 04-ORD-030 (2-13-04).
A civil service board improperly relies on KRS 61.878(1) in postponing the release of records requested under the Open Records Act as the Federal Rules of Civil Procedure granting thirty days to respond to discovery requests is inapplicable to the open records request. 97-ORD-98 (6-18-97).
A city properly denies a request for documents generated in the course of a civil action pursuant to KRS 61.878(1)(g), 61.878(1)(h), and 61.878(1)(j). 92-ORD-1024 (8-17-92).
University of Louisville improperly denied an open records request for a university employee since the university was not a party to the litigation and the records are discoverable, nonexempt records. 00-ORD-97 (4-13-00).
11. Exam questions and data
Kentucky Instructional Results Information System (KIRIS) was exempt from public disclosure under Open Records Act, where permitting exam to be indiscriminately viewed by public would interfere with accomplishment of objectives, including measuring efficiency and improvement of schools, for which it was devised. Triplett v. Livingston County Bd. of Educ. (Ky.App. 1997) 967 S.W.2d 25, rehearing denied, review denied, certiorari denied 119 S.Ct. 870, 525 U.S. 1104, 142 L.Ed.2d 771. Records 54
A county human resources division properly denies a request to inspect a scoring key used in evaluating applicants for positions in county government pursuant to KRS 61.878(1)(e). OAG 92-80.
Answers to test questions propounded by school districts to teaching applicants are not preliminary recommendations or memoranda that may be excluded from public inspection under KRS 61.878(1)(h). OAG 87-56.
KRS 61.878(1)(e), excluding test questions from public inspection, does not extend to answers to questions propounded by school districts to teaching applicants; KRS 61.878(4) requires a school district to make available nonexcepted material relating to such a test to a requesting teaching applicant. OAG 87-56.
It is proper for a school system to refuse to allow a child's parents to inspect a copyrighted examination given to that child when the exam is expected to be used again. OAG 86-2.
Examination papers and test scores are exempt from public inspection under the Kentucky open records law. OAG 78-468.
The University of Louisville properly relied on KRS 61.878(1)(a) and 61.878(1)(k), incorporating 20 U.S.C. Section 1232g, in denying a request for anonymous handwritten student surveys of a graduate English program insofar as the surveys constituted educational records and the students' handwriting made the records "easily traceable" within the meaning of federal legislation. -04-ORD-052 (3-31-2004).
Although its original response was deficient, the city of Louisville civil service board subsequently cure the deficiency by demonstrating how KRS 61.878(3) authorized the partial denial of a police sergeant's request for records relating to his examination for promotion to lieutenant and the assessment of his performance on the examination. 02-ORD-168 (9-24-02).
12. Law enforcement investigatory materials
The state penitentiary properly withholds a taped interview between a requesting inmate and a corrections officer pursuant to KRS 61.878(1)(f), since the matter discussed pertains to an active investigation. OAG 92-109.
A police department properly denies a request for witness statements generated in the course of an investigation pursuant to KRS 61.878(1)(g) and 61.878(1)(h). OAG 92-103.) and 61.878(1)(h). OAG 92-103.à jõ j¥ jŒ jÁ k k k5 kS kr kâ k£ k¸
The state police properly deny a request to inspect a report compiled in the course of an investigation into the burglary of the requesting party's home. OAG 91-132.
Records of a police department are subject to public inspection unless specifically exempted by statute. OAG 91-131.
The state police properly deny a request to inspect an investigative file where a defendant has pled guilty to murder but has not yet been sentenced, as the case may properly be treated as active. OAG 91-092.
A city legal department properly denies a request for access to tape recordings of 911 telephone calls pertaining to the requesting party's arrest where the requesting party has initiated an appeal from his murder conviction. OAG 91-091.
A police department properly denies a request to inspect its investigative files, pursuant to KRS 61.878(1)(f), where the case out of which they arose is not final because of the defendant's intention to seek post-conviction relief. OAG 91-57.
Investigative files compiled by the state police in the course of investigating a motor vehicle accident are exempt from inspection under KRS 61.878(1)(f) and 61.878(1)(j) until such time as any enforcement action is complete or a decision is made to take no action. OAG 91-50.
Investigative files of the attorney general concerning individuals investigated but never prosecuted for medicaid fraud are exempt from public inspection. OAG 91-35.
Arrest records and incident reports of a local police department in domestic violence and abuse situations are not exempt from public inspection; if such material is not stored on a database, the department is merely required to make the material available in the format in which it has been gathered. OAG 91-12.
Open and active state police investigative files and autopsy reports are exempt from inspection pursuant to KRS 61.878(1)(j) and 17.150(2). OAG 91-6.
A law enforcement agency properly denies a request to inspect reports concerning a death investigation where the reports are part of an active, ongoing investigation, notwithstanding that the investigation is almost one-and one-half years old at the time of the request. OAG 90-143.
Tape recordings of emergency 911 telephone calls by citizens to law enforcement officials are exempt from public inspection pursuant to KRS 61.878(1)(a) and 61.878(1)(g). OAG 90-117.
The state police properly denies inspection of a fire department's photographs of a fire where the case is still under investigation. OAG 90-104.
Federal bureau of investigation records loaned to the state police are exempt from disclosure under the Open Records Act. OAG 90-90.
Records involved in a joint police investigation are properly excluded under the Open Records Act. OAG 90-67.
The denial of a request to inspect a police videotape is proper, pursuant to KRS 17.150(2)(d) and 61.878(1)(f) and (j), where, at the time of the request, criminal proceedings involving use of the videotape have not been completed. OAG 90-64.
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 partial denial of a request for all records relating to a driver's licensing hearing is improper pursuant to KRS 61.878(1)(f). OAG 89-87.
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.
A request to inspect police dispatch logs for a four-year period is neither a blanket request, nor unduly burdensome because of volume, to support a blanket denial of inspection of the entire class of records under KRS 61.878(1)(f), where the records are of a limited class usually cumulated by month or year, and where inspection thereof has been allowed to others. OAG 89-20.
The tape recording of all police radio transmissions on a given frequency on an around-the-clock basis independently of and collaterally to a specific event is not "compiled in the process of detecting and investigating statutory violations" within the meaning of KRS 61.878(1)(f), and no "harm by premature release" will occur from release of a tape recounting facts already substantially revealed by news accounts. OAG 89-11.
Because of the strong public policy behind adoption of the uniform citation system in favor of preserving its integrity and preventing abuse by law enforcement agencies, requests to inspect specific uniform citations or groups of citations should be denied only upon a clear and specific showing that such citations fall within the purview of statutory exceptions to public inspection. OAG 88-64.
The state police properly withhold from public inspection the arrest records of a particular person which are part of the state police's centralized criminal history records and which have been collected and compiled from materials supplied by local criminal justice agencies. OAG 88-63.
A local police department may withhold from public inspection those copies of uniform citations which require court disposition until such time as the legal proceedings involving those citations have been concluded or resolved. OAG 88-58.
The denial by the state police of a request to inspect photographs pertaining to an accident is justified pursuant to KRS 61.878(1)(f), 61.878(1)(j) and 17.150(2) where the investigation pertaining to the accident has not yet been completed and a determination has not yet been made as to whether legal action will be taken. OAG 88-27.
The refusal of the state police to make available copies of documents setting forth the names of persons not connected with a police investigation is supported by the exceptions to public inspection set forth in KRS 61.878(1)(a) and 17.150(2)(b). OAG 88-18.
The social services department of the human resources department acts within applicable statutory provisions in refusing to make available for inspection by an alleged perpetrator of child abuse the names of informants and those portions of the statements of a judge and an informant wherein those parties set forth personal opinions, observations, and recommendations not related to the child abuse investigation and the findings resulting from that investigation. OAG 87-82.
The state police act properly in denying a request for public inspection of records pertaining to a criminal investigation at a time when such investigation is not complete and no determination has been made as to whether legal action will be taken. OAG 87-66.
A public agency's denial of a request to inspect a police investigative file is proper where legal action in the form of a trial is scheduled, but once the matter is litigated, the documents will be subject to public inspection unless exempted by another exception. OAG 87-2.
A public agency's denial of a request to inspect or copy the written confession of a juvenile is proper. OAG 86-85.
The police have discretion to decide whether a case is active, inactive, or finally closed, but where a demand for inspection of records is refused, and an investigation has been maintained as open but inactive for eight years, the burden is on the police to justify the refusal. OAG 86-80.
A denial of a request to inspect records in the custody of the coroner pertaining to the results of blood alcohol tests performed on three deceased persons is proper where the investigation of the accident is not yet complete and no determination has been made as to whether legal action will be taken. OAG 86-77.
A public agency properly denies a request to inspect and copy an investigative file of the state police relative to a particular person where the matter in question pertains to an active case. OAG 86-59.
A public agency's denial of a request to inspect the investigative file of the state police, concerning a double homicide for which two persons had been charged, is proper where one of these charged is appealing the conviction, since material pertaining to the other is not severable from material pertaining to the appeal. OAG 86-47.
A public agency's denial of a request to inspect records consisting of actual polygraph test results and the operator's report of conclusions relative to those tests is proper. OAG 86-39.
Public agency's denial of request to inspect and copy those records in police investigative file consisting of interviews with a person's co-workers where those co-workers express their personal opinions on a variety of matters, was proper; such material is properly excluded from public inspection pursuant to KRS 61.878(1)(a), 61.878(1)(g), and 61.878(1)(h). OAG 85-135.
A public agency's denial of a request to inspect the investigative case files of the state police is proper under the Open Records Act where the files pertain to matters that are still considered active and pending cases by state and/or federal authorities. OAG 85-118.
A public agency's denial of a request to inspect the investigative case file of the state police was proper under KRS 61.878(1)(f) where the investigation is still pending, the file pertains to an active case, and a determination has not been made as to whether legal or administrative action will be taken. OAG 85-93.
Inspection of a presentence investigation report remains closed except to the court, parole board, or corrections cabinet pursuant to KRS 439.510, although these agencies may order otherwise. Interpretation of KRS 532.050(4) indicates that there is a question as to whether the presentence investigation report itself should be released for inspection even to the defendant or his counsel. Statutory language only requires the court to advise of factual contents and conclusions. It does not require inspection. OAG 84-285.
The state police properly denied a request to inspect an investigative file that is still open because KRS 61.878(1)(f) exempts from public inspection those law enforcement records in which enforcement action is not yet complete. OAG 84-178.
Records and documents relating to criminal prosecution need not be made available to the public until the conviction is final. The general public's right to access public records cannot be greater than the rights of the accused in a criminal matter; therefore, to the extent that the Open Records Act is inconsistent with the Kentucky Criminal Rules, the rules must prevail. OAG 83-356.
The back side of a police uniform offense report containing supplementary notes by the investigating officer is exempt from inspection under the open records law. OAG 83-338.
Denial of public inspection of two items in a Kentucky state police investigative file was proper as protection against an unwarranted invasion of personal privacy. Item (1) was a reference to the identities and actions of three persons unconnected to the investigation. Item (2) was a polygraph test. OAG 83-260.
When both state and federal authorities are investigating the same activities, the state police may deny inspection of their file after their investigation has ended, so long as the federal investigation continues. OAG 83-39.
Under Kentucky law a police department is required to keep records of arrest, and the mayor of a city cannot withhold such records from public inspection or order newspapers to refrain from publishing news. OAG 81-379.
When a person inquires of the police if he is under surveillance, the police may respond "No comment" without violating the open records law. OAG 81-161.
A police department cannot have a policy of withholding the name of a rape victim. OAG 80-54.
Police incident reports are open to public inspection, but case files may be closed while a case is pending. OAG 79-387.
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).
The Winchester Police Department did not meet its statutory burden of proof in applying a policy of blanket nondisclosure of criminal complaints filed on a certain day, including all information on page two of the uniform offense report on the basis of KRS 61.878(1)(a) and (h), by failing to identify the specific exceptions to public inspection upon which it relied in partially denying the newspaper's request and by failing to explain the application of those exceptions to the records withheld. 05-ORD-003 (1-10-05).
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).
Because the Internal Affairs Branch Commander concurred with the investigating officer's conclusion that insufficient evidence existed to warrant additional investigation of an incident involving a state trooper's alleged perjury in the requester's DUI case upon reviewing the attached complaint and subsequent investigation [file]," thereby adopting the officer's evidentiary conclusions as the basis for the KSP's final action relative to the requester's complaint, the KSP improperly relied upon KRS 61.878(1)(j) in denying his request, since the Police Commissioner adopted the internal affairs report by reference into his final report. 04-ORD-162 (9-10-04).
Because the protection KRS 61.878(1)(h) affords to records compiled and maintained by county attorneys and Commonwealth's attorneys pertaining to criminal investigations or criminal litigation is absolute regardless of whether the law enforcement action is completed or a decision is made to take no action," and the records at issue fit this description, the Shelby County Attorney properly relied upon KRS 61.878(1)(h) in denying a request for specific correspondence. 04-ORD-153. (9-7-04).
The Covington Police Department improperly relied on KRS 61.878(1)(a) and the Health Insurance Portability and Accountability Act in partially denying The Kentucky Enquirer's requests for specifically identified accident and incident reports by redacting all personal information and not citing the specific exception authorizing nondisclosure of the record or portion thereof, as the Police Department is not a covered entity for purposes of HIPAA analysis, and its records generated in discharging its duty to protect public safety do not contain protected health information" and are therefore not governed by the Privacy Rule; however, there was no violation in the redaction of addresses and dates of birth from the records, since the purpose of the disclosure policy is to serve the public interest, not to satisfy the public's curiosity. 04-ORD-143 (8-24-04).
The Commerce Cabinet's reliance on KRS 61.878(1)(h) was partially misplaced where the record on appeal demonstrated that much of the information contained in a park ranger incident report, relating to the death of a visitor to a state park, had already been made known to the public through news accounts, and the Cabinet did not otherwise describe the harm that would flow from premature disclosure; therefore, the Commerce Cabinet must release pages one and three of the report and the accompanying written statement filed by the park employee who discovered the victim's body, but may withhold page two and the second written statement accompanying the report, since it identifies witness and contains information that might be used in a prospective law enforcement action. 04-ORD-104 (7-13-04).
By invoking KRS 61.878(1)(h) and establishing that the requested records related to an open investigation, the Kentucky State Police met the burden imposed by KRS 17.150(3) in conjunction with KRS 61.878(1)(h) to justify its denial of the subject request to inspect investigatory records with specificity. Although a public agency cannot indefinitely postpone access to investigative records by labeling the investigation open, the Attorney General has consistently recognized that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive or finally closed." Once the investigation is completed or a determination not to prosecute has been made, however, the records in question will be subject to public inspection pursuant to KRS 17.150(2) unless excluded from application of the Open Records Act by another statutory exception. 04-ORD-041 (3-2-04).
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. 03-ORD-211 (10-8-03).
The Kentucky State Police properly relied on KRS 189.635(5), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying a request for accident reports for a period slightly in excess of one month filed at the Madisonville Post that was submitted by an individual who was not a party to the accidents, the parent or guardian of a minor who was a party to the accidents, the insurer or attorney for a party, or a representative of a news-gathering organization seeking disclosure for the purpose of publishing or broadcasting the news. 03-ORD-188 (8-18-03).
The Kentucky State Police properly relied on KRS 17.175(4) in denying attorney's request for DNA profile records relating to her client. 03-ORD-126 (6-3-03).
The transportation cabinet properly denied a request to inspect grand jury subpoena by establishing how premature release could compromise an FBI investigation. 01-ORD-217 (11-1-01).
A blanket policy of nondisclosure of the identities of juvenile victims of crime is inconsistent with the Open Records Act; the Lexington Fayette Urban County division of police properly denied requester access to portions of the incident report that disclosed identity of a juvenile victim of the crime and her mother under the specific facts of the case. 96-ORD-115 (5-21-96).
An urban county government properly denies a request for law enforcement records of juveniles who committed suicide; KRS 610.320(3) does not contain an exception for release of a deceased juvenile's law enforcement records, and the Attorney General cannot read an exception into the law which does not exist. 95-ORD-7 (1-23-95).
The state police improperly rely on KRS 61.878(1)(a) and 61.878(1)(k), 610.320(3), and 620.050(4) in denying a request for investigative files concerning charges of sodomy, sexual abuse, and unlawful transaction with a minor involving an adult who is currently a candidate for elective office; the privacy interests of the juveniles involved can be protected by redaction of their names, while the privacy interest of the adult is outweighed by the public's interest in assessing his fitness to serve in the office for which he is a candidate and its interest in evaluating the performance of the state police. 93-ORD-42 (4-13-93).
A university improperly relies on KRS 61.878(1)(a) in redacting portions of a police incident report and in arguing that release of the information would constitute a clearly unwarranted invasion of privacy since it did not relate to the material facts of the crimes being investigated; the public's interest in disclosure clearly outweighs the individual's privacy interest in nondisclosure. 93-ORD-21 (3-2-93).
13. Preliminary drafts, notes
Governor's daily appointment ledgers were within Open Records Act exception for preliminary drafts and notes. Courier-Journal v. Jones (Ky.App. 1995) 895 S.W.2d 6. Records 57
A state university's official response to the national collegiate athletic association's (NCAA) allegations concerning rule violations by university athletic staff members in sending $1,000 in cash to an out-of-state basketball recruit is not exempt under KRS 61.878(1)(g) and 61.878(1)(h) since these subsections exempt only documents which are preliminary in nature and the response signed by the university's president and submitted to the NCAA constituted the final result of an extensive investigation; the submission of the response prior to final action by the NCAA is irrelevant since the agency subject to the provisions of KRS 61.878 is the university, nor does it matter that the university's response contained investigatory materials that were once preliminary in nature since preliminary investigatory materials lose their exempt status once they are adopted by the agency as part of its action. University of Kentucky v. Courier-Journal & Louisville Times Co. (Ky. 1992) 830 S.W.2d 373.
Louisville police department's internal affairs files are exempt from public inspection as being preliminary in nature under the Kentucky open records law. City of Louisville v. Courier-Journal and Louisville Times Co. (Ky.App. 1982) 637 S.W.2d 658.
The Kentucky Commerce Cabinet violated the Kentucky Open Records Act in denying a request for hard copies of the final presentations made by six advertising companies in response to a request for proposal issued by the Cabinet in conjunction with other state cabinets for an advertising/research agency to consolidate services across cabinet lines and develop a brand" for the Commonwealth, as the requested records do not constitute preliminary drafts, notes, or correspondence with private individuals", and this exception does not extend to all writings from individuals to a government agency; in addition, the Cabinet merely parroted the language of the statutory exception without giving any explanation of how the cited exception applies to the requested records as required by KRS 61.880(1), and therefore the Cabinet must provide the requester with the requested copies in accordance with KRS 61.874(1). 04-ORD-125 (8-6-04).
The Kentucky Transportation Cabinet improperly relied on KRS 61.878(1)(i), (j), and (k) in denying requests for files and field notes underlying the report which formed the basis of the Cabinet's decision to reject the proposed eastern bypass corridor that appeared in the published Administrative Action Environmental Assessment; the files and field notes requested forfeited their preliminary characterization upon the publication of the Environmental Assessment to the extent that they were adopted by the agency as part of its action", and thus must be disclosed to the public. 04-ORD-083 (6-9-2004).
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).
The Public Protection and Regulation Cabinet may withhold portions of applications for racing licenses and dates that were confidentially disclosed to the Racing Commission for the grant or review of a license to do business, and are generally recognized as confidential or proprietary. 99-ORD-220 (12-14-99).
A Commonwealth attorney properly denies that portion of a former employee's request pertaining to interoffice memos, notes, and correspondence but improperly denies that portion of the request pertaining to office procedure manuals. OAG 92-112.
The labor cabinet properly denies a request for an occupational safety and health compliance officer's worknotes pursuant to KRS 61.878(1)(g) and 61.878(1)(h). OAG 92-90.
Tapes used by the clerk of a public agency as an aid in preparing minutes of meetings are exempt from public inspection under KRS 61.878(1)(g) as preliminary drafts or notes. OAG 91-49.
An unsigned draft of an agreed order is not notice of final action by the natural resources and environmental protection cabinet, and public inspection may be denied. OAG 90-107.
The waste management division acts inconsistently with the Open Records Act by issuing a blanket denial of inspection of a computer printout which contains some information subject to public inspection and some information which can be properly withheld as "notes." OAG 90-10.
A county board of education may deny inspection of tape recordings of its meetings on the ground that such recordings are "preliminary drafts" regarding preparation of the official minutes, pursuant to KRS 61.878(1)(g). OAG 89-93.
A draft copy of a federal environmental protection agency air quality study tendered to the Kentucky air quality division for review and comments does not list its "preliminary draft" character upon being tendered to a state agency; thus, the state agency can properly deny inspection of the document as a preliminary draft within the meaning of KRS 61.878(1)(g). OAG 89-34.
A preliminary internal document not expressing the final decision or action of a public agency may be withheld from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h). OAG 89-24.
The labor cabinet's denial of a request to inspect an occupational safety and health compliance officer's preliminary handwritten worknotes and four employee interview statements is justified under KRS 61.878(1)(g), 61.878(1)(h), and 61.878(1)(j), and 338.101(1)(a). OAG 88-67.
Various drafts generated in connection with the preparation by private persons and firms of a report may be withheld from public inspection by a public agency. OAG 88-61.
A school district's denial of a request to inspect documents consisting of information, written statements, recordings, reports, and summaries of information pertaining to an investigation by school authorities of a sexual abuse incident involving students is supported by KRS 61.878(1)(g) and 61.868(1)(n) where such documents are preliminary in nature. OAG 88-38.
A tape recording made during a meeting to assist in the preparation of official minutes may be withheld from public inspection as a preliminary document. OAG 88-32.
The request to inspect a draft audit prepared by the environmental protection agency is properly denied under KRS 61.878(1)(g) and 61.878(1)(h) where the item in question is a preliminary document. OAG 88-24.
An occupational safety and health compliance officer's worknotes that are preliminary in nature are protected from public inspection by KRS 61.878(1)(g) and 61.878(1)(h). OAG 88-9.
The refusal of the state police to furnish documents concerning preliminary data pertaining to a toxicology analysis report, and records pertaining to an employee's training, education, and experience, is supported by exceptions to the public inspection requirement. OAG 87-84.
A public agency's denial of a request to inspect and copy an occupational safety and health compliance officer's worknotes and employee interview statements is proper under the Open Records Act and KRS 338.101(1)(a). OAG 87-68.
A local health department acts properly in denying a request for public inspection of preliminary documents dealing with permits to install sewage disposal systems. OAG 87-58.
A county board of education acts within the provisions of the Open Records Act when it refuses to furnish a requesting party a copy of that portion of a tape recording of its meeting involving an executive or closed session at which such party was discussed, as such tape recording constitutes a preliminary draft and preliminary notes of such proceeding. OAG 87-44.
A public agency acts in conformity with the Open Records Act when it denies access to those records contained in the labor cabinet's employment standards and mediation division investigative file consisting of the investigator's worknotes. OAG 87-43.
A public agency acts in conformity with the open records law in denying access to those records in an occupational health and safety investigative file consisting of a compliance officer's preliminary worknotes. OAG 87-25.
A public agency's denial of a request to inspect and copy compliance officers' preliminary worknotes and the employee interview statements is proper. OAG 87-9.
Orders of the treasurer, which are not actual bills received by the school system but are documents prepared by the treasurer primarily for internal use relative to a school board's bill approval process, retain a preliminary characterization which permits a school system to deny public inspection until such time as a school board formally considers such orders and adopts and incorporates as its course of action and final decision the terms, conditions, and recommendations contained in the orders. OAG 86-42.
A public agency's denial of a request to inspect a labor cabinet's compliance officer's worknotes and employee interview statement is proper. OAG 86-37.
A public agency's denial of a request to inspect documents is proper where the documents consist of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda including intra-office memoranda, and other documents not representing final action of the agency. OAG 86-32.
A public agency's denial of a request to inspect a labor cabinet's compliance officer's worknotes and employee interview statements is proper. OAG 86-27.
A public agency's denial of a request to inspect the worknotes of a labor cabinet compliance officer and employee interview statements is proper. OAG 86-14.
A public agency's denial of a request to inspect memoranda from an inspector to his supervisor concerning the closing of a landfill operation is proper, as the documents constitute intraoffice memoranda containing preliminary notes and personal observations and do not represent notice of a final action or decision of the public agency. OAG 86-5.
A public agency's denial of a request to inspect an occupational safety and health compliance officer's worknotes and four employee interview statements was proper under the open records law pursuant to KRS 61.878(1)(g), 61.878(1)(h), 61.878(1)(j), and 338.101(1)(a). OAG 85-146.
Public agency's denial of inspection of the compliance officer's worknotes and the four employee interview statements was proper under the open records law pursuant to KRS 61.878(1)(g), 61.878(1)(h), 61.878(1)(j), and 338.101(1)(a). OAG 85-142.
Public agency's denial of inspection of the occupational safety and health compliance officer's worknotes was proper under the open records law pursuant to KRS 61.878(1)(g) and 61.878(1)(h) as such material constitutes preliminary drafts, notes, recommendations and memoranda. OAG 85-137.
Public agency acted in conformity with open records law in denying access to those records in the investigative file consisting of compliance officer's worknotes as such records are preliminary documents exempt from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h). OAG 85-129.
A public agency's denial of a request to inspect those records in the file of the labor cabinet's investigative officer consisting of the officer's worknotes was proper under the Open Records Act as such material, in the absence of a court order to the contrary, is exempt from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h). OAG 85-125.
A public authority acted in conformity with the Open Records Act in denying access to records in the occupational safety and health investigative file consisting of compliance officer's worknotes and employee interview statements. OAG 85-123.
A public agency's denial of a request to inspect a police officer's notes and reports was proper because such documents are preliminary documents containing the person's notes and observations. OAG 85-107.
An agency's denial of a request to inspect a statement of a police officer made by the requesting party was proper, as the officer's statement is a preliminary record in the internal investigative files of the police department and excluded from those records subject to public inspection by KRS 61.878(1)(g)(h), unless it was incorporated into any notice of final action by the police department. OAG 85-95.
A public agency's denial of a request to inspect those records in the file of the labor cabinet's investigative officer consisting of that officer's work notes was proper as such material is exempt from public inspection in the absence of a court order, pursuant to KRS 61.878(1)(g)(h). OAG 85-92.
The denial of inspection of the occupational safety and health compliance officer's worknotes and employee interview statements was proper. OAG 85-58.
The labor cabinet properly denied inspection of those records in the occupational safety and health investigative file consisting of the compliance officer's worknotes and employee interview statements. OAG 84-365.
The denial of the request to inspect the occupational safety and health compliance officer's worknotes was proper as such material is exempt from public inspection in the absence of a court order. OAG 84-361.
A report prepared by SRI International for the city of Louisville pertaining to future economic development in Louisville constituted preliminary memoranda in which opinions and recommendations were expressed, and was thus exempt from public inspection pursuant to KRS 61.878(1)(h). The report was preliminary although it was a final report from SRI International because it was preliminary to any final action taken by the city, and the city was not obligated in any manner to accept the report's opinions and recommendations. OAG 84-337.
OSHA compliance officer's worknotes and letter from officer to the division director pertaining to the investigation of an accident are exempt from public inspection as preliminary. OAG 84-321.
The department of labor properly denied a request to inspect OSHA compliance officer's worknotes and two employee statements pertaining to a construction accident. The requested records are exempted as preliminary. OAG 84-275.
Witness statements which do not constitute complaints spawning police investigations are exempt from public inspection once investigation is complete, due to the preliminary nature of the statements. Access is not available even to one mentioned in the witness statements since KRS 61.884 is subject to the KRS 61.878 exemptions. OAG 84-249.
The labor cabinet correctly denied inspection of the OSHA compliance officer's worknotes compiled for the May 23, 1983 accident at the Elizabethtown waste water treatment plant. These notes are strictly preliminary in nature. OAG 84-224.
Compliance officer's worknotes in regard to the Kentucky labor cabinet's occupational safety and health investigative file are exempt from public inspection as preliminary. OAG 84-218.
Under KRS 61.878(1)(g)(h), the Kentucky state police properly denied inspection of preliminary memoranda and correspondence relating to testing of evidential breath alcohol testing equipment for radio frequency interference or electro-magnetic interference. However, any final Kentucky state police reports or preliminary materials incorporated into the final reports are open to public inspection. OAG 84-118.
A report of an investigation of alleged misuse of county road equipment, which report was submitted by the county attorney to the county judge/executive, is exempt from public inspection because it is preliminary in nature. OAG 83-469.
The back side of a police uniform offense report containing supplementary notes by the investigating officer is exempt from inspection under the open records law. OAG 83-338.
Kentucky department of labor properly denied request to review compliance officer's worknotes as preliminary notes under KRS 61.878. Statements taken by the compliance officer from employees and employers are confidential under KRS 338.101 and not subject to public inspection under KRS 61.878, as interpreted by OAG 83-140. OAG 83-335.
Intraoffice memoranda within the revenue cabinet concerning the feasibility of an unmined minerals tax are exempt from mandatory public inspection. OAG 83-263.
Records which are exempt as preliminary records continue to be exempt from public inspection even after final action has been taken in regard to the policies recommended. OAG 80-289.
Records generated by staff attorneys of appellate courts are preliminary in nature and are exempt from the open records law. The chief justice is empowered by statute to control access of the records of the court. OAG 78-262.
A report of an investigation of the metropolitan department of corrections made by one man is a preliminary report and is exempted under the Open Records Act. OAG 76-692.
The Kentucky state police fails to meet its burden of proof in denying requester access to a background investigation of an officer on the basis that the investigation was a predecisional document not incorporated into final agency action. 97-ORD-136 (8-28-97).
The Kentucky heritage council properly relies on KRS 61.878(1)(i) in denying a request for a memorandum prepared by a staff member and sent to the executive director. 93-ORD-82 (7-6-93).
The governor's office properly withholds the governor's schedule pursuant to KRS 61.878(1)(a) and 61.878(1)(h); a public official's schedule is a preliminary document in that it does not constitute final agency action and is not incorporated into final action, and the portions of the schedule relating to personal activities are also exempt under the privacy exemption. 93-ORD-25 (3-5-93).
Only records of regents board meetings which reflect discussions of classes of individuals, as opposed to specific individuals, are subject to public inspection, but no records properly characterized as "preliminary recommendations" need be disclosed until final action is taken. 92-ORD-1346 (9-28-92).
14. Preliminary recommendations and memoranda
Disclosure of e-mails between mayor and city council to local newspaper did not result in waiver of exceptions under Open Records Act concerning preliminary matters; city clerk did not make disclosure, and city commission did not authorize disclosure. Baker v. Jones (Ky.App. 2006) 2006 WL 141484. Records 62
E-mails between mayor and city council fell within exception under Open Records Act for preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended; e-mails were preliminary discussions involving what course of action should be taken in regard to controversy pertaining to apparent irregularities in finances of local convention center. Baker v. Jones (Ky.App. 2006) 2006 WL 141484. Records 57
Resignation from a position by an employee before a city commission has reached a decision concerning possible termination is a "final action," for purposes of determining whether records at issue in disciplinary hearing remain exempted from disclosure under Open Records Act under preliminary matters exception. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Records 60
Louisville police department's internal affairs files are exempt from public inspection as being preliminary in nature under the Kentucky open records law. City of Louisville v. Courier-Journal and Louisville Times Co. (Ky.App. 1982) 637 S.W.2d 658.
In adjudicating a dispute involving access to the Governor's travel itineraries for his trade mission to Europe, the Attorney General is bound by clearly established legal precedent in Courier Journal v. Jones, Ky. App. 895 S.W.2d 6 (1995), holding that Governor Brereton Jones properly denied a request for his schedule (also referred to as his appointment ledger, calendar, and personal itinerary) on the basis of KRS 61.878(1)(i)and (j), and the Attorney General affirms the Governor's denial of the open records request on this basis. 05-ORD-018 (2-10-05).
Preliminary memoranda in which the natural resources and environmental protection commissioner expresses an opinion or recommends policies to the governor concerning the viability of alternatives to the dumping of chloride effluents from a plant into a lake are exempt from public inspection. OAG 91-23.
Legal memoranda of state agencies that are originally preliminary in nature lose that status once the agency adopts them as its final action, and they are then subject to inspection. OAG 89-69.
The economic development cabinet's denial of a request to inspect lists prepared by the secretary which involve interdepartmental memoranda setting forth his opinions and recommendations as to whom the governor should appoint to a statutorily created entity is supported by the exceptions to public inspection set forth in KRS 61.878(1)(g) and 61.878(1)(h). OAG 88-85.
A university properly withholds from public inspection a letter constituting a preliminary intra-university communication containing the personal impressions, observations, and opinions of an official which do not represent the university's final decision or determination relative to the matter. OAG 88-57.
A public agency properly excludes from public inspection those documents consisting of preliminary material which set forth opinions and observations of board members and which do not represent the agency's final decision. OAG 88-32.
A city may exclude from public inspection preliminary intraoffice communications setting forth opinions, observations, and recommendations of departmental personnel regarding a policeman that do not represent the department's final decision on the matter. OAG 87-64.
Correspondence between two agencies pertaining to an investigation of a state agency need not be released by the state agency when it consists of preliminary documents containing observations, opinions, and comments of various personnel of the two agencies. OAG 87-28.
A note or memorandum pertaining to a telephone call between agency personnel and a public official, containing personal opinions and observations and not indicative of the parole board's final decision concerning a particular case, is a preliminary intra-office memorandum which may be excluded from public inspection pursuant to KRS 61.878(1)(h). OAG 87-24.
A letter from a member of the judiciary to the parole board setting forth a judge's opinions as to whether the board should grant a parole is a preliminary document expressing personal opinions and recommendations and not subject to public inspection unless made part of the parole board's final decision. OAG 87-24.
A denial by the state police of a request to inspect intraoffice memoranda concerning an ongoing investigation is proper. OAG 87-10.
A public agency's denial of a request to inspect and copy documents consisting of weekly status reports from one state police officer to another, summarizing what his section had done during the week, is proper as the documents are preliminary intraoffice memoranda. OAG 87-1.
A public agency properly denies a request to inspect and copy public records consisting of intra office memoranda and reports of a preliminary nature containing notes and correspondence not indicating final agency action and setting forth the opinions, recommendations and observations of various agency personnel. OAG 86-58.
A school superintendent's temporary withholding from public inspection of an administrative memorandum is proper, providing he furnishes requested material relative to the monthly financial report, as such memorandum is not an agenda but a preliminary intrasystem memorandum containing the superintendent's proposals and recommendations relative to items to be considered at meetings of the school board. OAG 86-54.
On the basis of KRS 61.878 in effect at the time of this request for inspection, a public agency has the authority to withhold from public inspection a document in the nature of an intraoffice memorandum from employees to a supervisor, setting forth their opinions of a fellow employee, when that memorandum has neither spawned an investigation nor served as the basis for any kind of personnel action involving the employee mentioned in the memorandum. OAG 86-53.
A public agency's denial of a request to inspect documents is proper where the documents consist of twenty-nine pages of notes, intra-office memoranda, and investigative reports setting forth the opinions, observations, and recommendations of various agency personnel, which do not represent the agency's final decision. OAG 86-26.
A public agency's denial of a request to inspect and copy records pertaining to a professional standards internal investigation of a former state trooper is proper where the records consist of preliminary drafts and notes, memoranda and reports containing the opinions, recommendations, and observations of the investigating officers, a polygraph test, and a report of the person administering the polygraph examination. OAG 86-22.
A public agency's denial of a request to inspect the memorandum of the officer conducting a background investigation of an applicant for state police, which contains the investigating officer's opinions and recommendations as well as evaluations from the people he interviewed, is proper. OAG 86-19.
Public agency's denial of inspection of the occupational safety and health compliance officer's worknotes was proper under the open records law pursuant to KRS 61.878(1)(g) and 61.878(1)(h) as such material constitutes preliminary drafts, notes, recommendations and memoranda. OAG 85-137.
A public agency's denial of a request to inspect reports of the cabinet's field inspector relative to her inspection of a landfill operation, containing her observations and opinions, was proper under KRS 61.878(1)(g)(h) because such reports are intraoffice memoranda containing preliminary drafts, notes, and observations. OAG 85-104.
An agency's denial of a request to inspect a realty company's feasibility report on the construction of an office building on city-owned land was proper under KRS 61.878(1)(h), as such a report is preliminary in nature, setting forth opinions and recommendations for review and consideration by the city. OAG 85-96.
A board of education's denial of a request to inspect a letter of disciplinary recommendation from a school principal to the board of education was proper because the denial appears to be covered by the privacy exemption and is covered by the exemption for preliminary recommendations, unless the letter represents final action by the board or it is incorporated into a final decision or report of the board. OAG 85-90.
A request to inspect public records that do not exist is moot. Intradepartmental memoranda in which opinions are expressed and recommendations are made are exempt from public inspection in absence of court order. A request to inspect public records that does not describe the records with specificity need not be granted. OAG 85-29.
Tape recordings of employee interviews pertaining to an internal investigation of alleged criminal violations constitute preliminary notes and preliminary memoranda containing opinions and are, therefore, closed to public inspection. OAG 84-298.
Two letters between division heads at the Kentucky department of military affairs were properly denied public inspection under KRS 61.878(1)(h) as they were intra-agency preliminary memoranda in which opinions were expressed, and were not indicative of any final agency action. OAG 84-163.
An order of the department of corrections at the Kentucky State Reformatory directing the staff to lock down the geriatrics unit from 4 p.m. to 6 p.m. is not open to public inspection as a memorandum which discusses policy, procedures and recommendations concerning the security of the facility. OAG 83-337.
Quarterly report filed by Kentucky Society of CPAs, prepared for state board of accountancy to be used in a quality review program, detailing substandard work found occurring by practitioners or firms and recommending remedies, is exempt as a protection against the invasion of privacy of the individual practitioners and firms, and as preliminary notes, memoranda, and recommendations. OAG 83-308.
Letter by city attorney in his official capacity on behalf of city council to judge/executive concerning statement by police officer questioning ability of police chief to hold his position is exempt from public inspection as a preliminary memoranda which contains opinions. OAG 83-272.
Under subsection (1)(h), records of the Lexington police which are an abstract of interviews with law enforcement authorities in Ohio about a deceased suspect are opinion; therefore, they are exempt from public inspection. OAG 82-532.
Records which are exempt as preliminary records continue to be exempt from public inspection even after final action has been taken in regard to the policies recommended. OAG 80-289.
A Kentucky State Police officer who resigns prior to the Kentucky State Police took action constitutes final agency action and does not qualify for exclusion under under KRS 61.878(1)(i) and (j), to hold otherwise would be tantamount to enabling public servants who have engaged in misconduct to avoid public scrutiny by voluntary terminating their public service. 02-ORD-231 (12-02-02).
A city must disclose correspondence and records of an audit by the United States Department of Justice, Office of the Inspector General of federal grants to the local police department where such disclosure will not have a chilling effect on the city's implementation of post-decisional agreed upon actions. 02-ORD-097 (5-17-02).
The treasury department improperly denies a request for the department's database of lost or abandoned property as such database does not constitute a preliminary draft or note under KRS 61.878(1)(i). 97-ORD-183 (12-4-97).
Where the commissioner of the state police adopts the findings and recommendations of the investigating officer relative to the use of force, those investigative materials forfeit their preliminary characterization and become public records. 97-ORD-168 (11-10-97).
A university may properly deny a request for a preliminary recommendation of a faculty committee relative to reappointment of the department chair pursuant to KRS 61.878(1)(a) and (i). 94-ORD-132 (11-9-94).
While performance evaluations are normally excluded from disclosure, where summary performance evaluation of the city manager who is ultimately responsible for the management of the agency occurs, such evaluation is required to be disclosed. 00-ORD-177 (9-18-00).
15. Correspondence with private individuals
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 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 city properly withholds a security report prepared by a private hospital, which is exempt from inspection pursuant to KRS 61.878(1)(g) as correspondence with a private individual. OAG 92-106.
A city acts consistently with the Open Records Act in denying public inspection of voluntary survey forms returned to its economic development office on the ground that they constitute correspondence with private individuals. OAG 90-13.
A state university fails to act consistently with the Open Records Act by denying inspection of a letter, on the ground that it is "correspondence with a private individual," when the letter is that of a contractor under a public contract, regarding issues related to administration of such contract. OAG 90-7.
Correspondence with "private individuals" within the meaning of KRS 61.878(1)(g) are exempt from public inspection despite the fact that such individuals have been the subject of substantial publicity. OAG 89-86.
Bid quotations or proposals of firms soliciting government work are not "correspondence with private individuals" within the meaning of KRS 61.878(1)(g); such records are not exempt from public inspection. OAG 89-31.
A university's withholding from public inspection of a copy of a letter sent by a private organization to a private attorney representing a university assistant basketball coach is not supported by the privacy exemption to public inspection. OAG 88-47.
A city's denial of a request to inspect and copy documents submitted as a bid is proper where the bid is not timely filed nor considered on its merits, as such documents are correspondence between private individuals. OAG 87-4.
"Correspondence with a private individual" which is not "intended to give notice of final action of a public agency," such as a letter from the president of a company with whom the state has executed a contract, is not open to public inspection without a court order; the language of KRS 61.878 is clear and controlling, and this opinion is appealable pursuant to KRS 61.880. OAG 85-148.
The office of the governor properly denied a request to inspect correspondence submitted by a named individual in a 15-month period pertaining to outdoor (billboard) advertising. KRS 61.878(1)(g) exempts from public inspection those public records which constitute correspondence with private individuals, which correspondence does not give notice of a final agency action. OAG 83-385.
Letter written by state university president on behalf of board of regents to department head that supposedly outlined charges against department head and which caused president to recommend department head's demotion is not open to public inspection under the open records law. OAG 83-358.
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.
A list of clients who have had energy audits conducted by the energy management assistance program is exempt from mandatory public disclosure as correspondence with private individuals. OAG 83-165.
Response to a voluntary survey is private correspondence and is exempt from public inspection under the open records law. OAG 79-69.
The Purchase Area Development District improperly failed to disclose a letter from the Department of Energy to former employee relating past-employment conflicts of interest as the letter did not qualify as correspondence with private individuals or preliminary memorandum in which opinions were expressed. 00-ORD-168 (9-6-00).
Correspondence from or to a contractor under a public contract on issues relating to the administration of that contract can not be properly characterized as correspondence with a private individual, and such correspondence becomes an open record upon issuance. 00-ORD-98 (4-13-00).
16. Federal law prohibition
A prospective federal habeas corpus proceeding constitutes a "law enforcement action" within the meaning of KRS 61.878(1)(k) so as to exempt from disclosure records relating to a criminal conviction that had been affirmed on appeal. Skaggs v. Redford (Ky. 1992) 844 S.W.2d 389.
With the exception of a procedural violation, the Cabinet, a hybrid entity under HIPAA, has fully complied with governing state and federal law in responding to the requests for copies of "any and all complaints" made by a named individual or others related to the treatment of a specific patient while at Kindred Hospital in Louisville, KY; Adult Protective Services properly conditioned release of the requested records upon completion of a HIPAA complaint form, and the Office of the Inspector General properly denied access on the basis of 45 CFR sec. 164.512(c) in conjunction with KRS 61.878(1)(a),(k) and (l) and KRS 194a.060(l). 05-ORD-054 (3-30-05).
Recent amendments to the "Buckley Amendment" to the federal Educational Rights and Privacy Act of 1974, 20 USC 1232g, make law enforcement records of a public university law enforcement unit subject to the Open Records Act. OAG 93-3.
The agriculture department acts in accordance with KRS 61.878(1)(f) in initially denying inspection of a subpoena that was served on it by the federal government when the federal government informed the department that release of the information sought by the subpoena would endanger or impede an ongoing investigation being conducted by the federal government. OAG 90-116.
A school district's denial of a request to inspect documents consisting of information, written statements, recordings, reports, and summaries of information pertaining to an investigation by school authorities of a sexual abuse incident involving students is supported by KRS 61.878(1)(i) where such documents are made confidential by federal legislation. OAG 88-38.
The request to inspect a draft audit prepared by the environmental protection agency is properly denied under KRS 61.878(1)(i) where the item in question is made confidential by 5 USC 552(b)(5). OAG 88-24.
If a state university is a recipient of federal funds and must conform to federal law regarding disclosure of education records to retain eligibility for such funds, the denial by the university of requests for materials involving such education records is proper. OAG 87-67.
A public agency properly refuses to permit a requesting party to inspect and copy two employee interview statements obtained in connection with an OSHA investigation of an accident at a work site. OAG 86-57.
Job order forms secured by the bureau for manpower services from a private corporation in conjunction with job referrals and individual job applications made in response to the job order form are not open to public inspection pursuant to federal regulation and are, therefore, closed under KRS 61.878(1)(i). OAG 84-273.
If the service records of a deceased veteran are available upon request only to his next of kin pursuant to the Privacy Act of 1974 (5 USC 552), then the Kentucky department of military affairs properly denied under the Kentucky open records law a request by a non-relative to inspect the veteran's service records. KRS 67.878(1) exempts from public inspection those records the disclosure of which is prohibited by federal law or regulation. OAG 84-84.
Statements of witnesses which OSHA representatives are authorized to take are exempt from public inspection by statute. OAG 83-5.
The transportation department properly denied a request for the statewide database of driver's licenses on the basis of KRS 61.878(1)(k) and the federal Drivers Privacy Protection Act, 18 U.S.C. § 2721 which prohibits the release of certain personal information from state motor vehicle records. 98-ORD-1 (1-5-98).
A correctional complex properly denied inmate's open records request for his FBI rap sheet where both state and federal statutes prohibit such disclosure, a correctional complex's failure to enumerate the specific sections authorizing nondisclosure procedurally deficient. 97-ORD-178 (11-26-97).
A county board of education properly denies a request for pass/fail information on school bus driver drug tests where disclosure of this information is prohibited under the federal department of transportation and highway administration's Omnibus Employee Drug Testing Act. 97-ORD-002 (1-8-97).
The legislative research commission improperly relied on KRS 61.878(1)(k) and the Freedom of Information Act, Privacy Act, and the department of justice's regulations to deny requester access to a search warrant executed by the FBI; the federal statutes have no effect on the state agencies' duty to disclose records within their control. 96-ORD-244 (11-20-96).
The transportation cabinet may not deny a request for records compiled for safety enhancement at railroad crossings under 23 USC 403 where the requester does not intend to use the records in a civil action for damages. 94-ORD-124 (10-25-94).
The Pineville independent school district is permitted but not required to release educational officials in connection with the audit and evaluation of a federally or state supported program, pursuant to 20 USCA. 1232g(b)(5) and therefore, the district could properly deny the request for the release of students' education records. 94-ORD-17 (2-7-94).
The transportation cabinet improperly relies on KRS 61.878(1)(j) and federal Crim R 6(e) in denying a request for records subpoenaed by a federal grand jury. 93-ORD-91 (8-5-93).
17. Statutory prohibition
A circuit court clerk properly withholds court records, which are outside the scope of the Open Records Act, pursuant to KRS 61.878(1)(j) and KRS 26A.200 to 26A.220. OAG 92-100.
The social services department properly denies a noncustodial parent's request for access to records concerning unsubstantiated allegations of neglect and abuse involving his child pursuant to KRS 61.878(1)(j) and 620.050(4). (See also OAG 92-54.) OAG 92-53.
A correctional facility properly denies an inmate's request for access to a presentence/postsentence investigation report pursuant to KRS 61.878(1)(j) and 532.050(4), where the inmate was advised of the factual contents and conclusions of the report at the time of sentencing. OAG 92-49.
A correctional facility properly denies an inmate's request to inspect transfer recommendation and authorization forms pursuant to KRS 197.025. OAG 92-26.
The state reformatory properly denies an inmate's request to inspect his psychological evaluation under KRS 61.878(1)(j) and 197.025, but errs in failing to advise the inmate that other requested records do not exist. OAG 92-25.
The social services department properly denies a request for documents pertaining to the investigation of an incident of adult abuse pursuant to KRS 61.878(1)(j) and 209.140(a) where the requesting party's client was not suspected of abuse. OAG 91-230.
A correctional facility properly withholds a presentence investigation report from an inmate convicted after July 13, 1990; it is sufficient under KRS 532.050(4) to advise the inmate of the contents of the report. OAG 91-194.
KRS 61.878(1)(j) and 620.050(4) authorize the withholding from public inspection information or records of the state police obtained as a result of a joint investigation by the state police and human resources cabinet. OAG 91-173.
A public agency properly denies a prisoner's request for access to conflict sheets under KRS 61.878(1)(j) and 197.025. OAG 91-136.
A city properly denies a request to inspect a report prepared by a fire chief subsequent to a fire, pursuant to KRS 61.878(1)(j) and 227.370 and as a preliminary document. The city improperly denies a request to inspect a list of fire and building code violations since these are not preliminary. OAG 91-100.
The social services department properly withholds information gathered in a child abuse investigation pursuant to KRS 620.050(4) and 61.878(1)(j). OAG 91-093.
The corrections cabinet acts improperly in invoking KRS 421.215 to deny disclosure of psychiatric and psychological evaluations of prisoners eligible for parole to the legislative program review committee. OAG 91-86.
A university properly withholds from public inspection records consisting of attorney work product pursuant to KRS 61.878(1)(j) and 447.154. OAG 91-53.
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.
Case records concerning a minor client or patient of the human resources cabinet may be exempted from inspection by former "de facto" guardians of the minor pursuant to KRS 61.878(1)(j) and 194.060(1). OAG 91-30.
Settlement documents of a public agency, not generated for or received by a court, are not exempted from public disclosure pursuant to KRS 26A.200 to 26A.220. OAG 91-20.
The labor cabinet acts consistently with open records provisions in KRS 61.880 by promptly responding in writing to a request to inspect certain of its records and by citing KRS 61.878(1)(f), the statutory exemption, for a file under submission by the compliance officer and not completed, in that action to be taken had not been finally determined, and advising that when the file is completed, copies of releasable material will be sent. OAG 89-80.
A request that the revenue cabinet supply addresses to correspond with names and social security numbers tendered by the requesting party is a request for information to be compiled, not a request to inspect public records. Such request is properly denied in any event since the revenue cabinet is barred by KRS 131.190 from divulging address information on tax returns. OAG 89-45.
The labor cabinet properly denies a request to inspect employee interview statements pursuant to KRS 61.878(1)(j) and 338.101(1)(a). OAG 89-10.
A report prepared for the ethics board of the general assembly by its attorney is "information received by the board in the course of its investigations" and is not subject to public inspection because it is restricted by legislative enactment. OAG 88-80.
The denial by the state police of a request to inspect photographs pertaining to an accident is justified pursuant to KRS 61.878(1)(f), 61.878(1)(j) and 17.150(2) where the investigation pertaining to the accident has not yet been completed and a determination has not yet been made as to whether legal action will be taken. OAG 88-27.
The state board of elections properly denies a request for copies of precinct lists where the requesting party does not meet the criteria established by KRS 117.025(3)(i). OAG 88-16.
The corrections cabinet properly denies, pursuant to KRS 61.878(1)(j) and 439.510, a request to inspect documents prepared and submitted by a parole officer. OAG 88-14.
A property valuation administrator's denial of a request to inspect property tax rolls is proper if the requesting party intends to use information obtained thereby for commercial or business purposes in contravention of KRS 133.047(2). OAG 88-12.
As KRS 133.045(1) does not absolutely prohibit public inspection of property tax rolls, a property valuation administrator may not deny a request to inspect such rolls merely because it was not made within the time frame set forth in KRS 133.045(1). OAG 88-12.
A city cannot use the Open Records Act to circumvent the statutory fee for use of a county property valuation administrator's assessment records, under KRS 132.285, for its own real property taxation. OAG 88-11.
A public agency properly refuses to furnish records of an alleged instance of child abuse to a requesting party who does not fall within one of the categories of KRS 620.050(4). OAG 88-4.
On the basis of KRS 61.878(1)(a) and 61.878(1)(j), 210.235, 319.111, and 421.215, and in the absence of a court order authorizing inspection, the correctional psychiatric center properly denies a newspaper's request under the Open Records Act for copies of documents pertaining to types of tests given to patients and to personnel administering and supervising such tests. OAG 87-75.
A public agency's withholding of records as trade secrets is improper where the agency has not fulfilled the statutorily imposed duty of enacting administrative regulations as a part of the process by which records are designated as trade secrets. OAG 86-41.
From a policy viewpoint it makes sense to accord employees questioned pursuant to KRS 338.101(1)(a) as much protection as possible; therefore, it is proper for the labor cabinet to refuse to provide the names of employees from whom they obtained statements pertaining to the occupational safety and health conditions existent at a workplace. OAG 86-3.
A public agency's denial of a request to inspect a financial statement submitted by a private corporation relative to a request for bids by a state agency was proper under the Open Records Act whether or not the document was submitted pursuant to the requirements of a state statute. OAG 85-119.
Where a proceeding has been instituted under KRS 344.200 and it has resulted in a dismissal of the complaint or the entrance into a conciliation agreement, only the order of dismissal or the terms of the conciliation agreement are subject to public inspection; however, where a proceeding has been instituted under KRS 344.210 and a hearing has been held, the hearing transcript, all evidence introduced at the hearing, and the subsequent decision of the commission are subject to public inspection under the open records law. OAG 84-376.
Those records in the custody of the labor cabinet containing the statements of three employees made to OSHA compliance officers in private interviews are exempt from release under the open records law pursuant to KRS 338.101(1)(a) and 61.871(1)(j). OAG 84-345.
The reports of two fires, made by the fire chief to the city manager, are not open to public inspection under KRS 227.370 and 61.878(1)(h). Resumes of the fire chief, assistant fire chiefs, and city manager are also not open to public inspection due to personal privacy under KRS 61.878(1)(a). OAG 84-19.
Kentucky department of labor properly denied request to review compliance officer's worknotes as preliminary notes under KRS 61.878. Statements taken by the compliance officer from employees and employers are confidential under KRS 338.101 and not subject to public inspection under KRS 61.878, as interpreted by OAG 83-140. OAG 83-335.
Information concerning the identity of parents against whom the Commonwealth has a claim for recovery of support payments is made confidential by statute, and a request for such information by the public must be denied. OAG 82-539.
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.
Records of motels concerning occupancy and gross revenues are made confidential by statute and are therefore exempt under the open records law. OAG 77-586.
The Kentucky Personnel Cabinet failed to establish that disclosure of the names and information system access levels of public employees would result in a reasonable likelihood of threatening the public safety by exposing a vulnerability in protecting against a terrorist act. 05-ORD-175 (8-6-2005).
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. 04-ORD-079 (5-27-2004).
Because the General Assembly is presumed to have been aware of the existence of KRS 61.874(2)(a) at the time it enacted KRS 237.110(8), and these two statutes are in irreconcilable conflict, KRS 237.110(8), the subsequent and specific statute, is controlling; accordingly, the Kentucky State Police properly denied Andrew Tangel's request to provide the list of concealed weapons licensees in electronic format and correctly advised him on how to proceed under KRS 61.874 thereby fulfilling its obligation under the Open Records Act. 03-ORD-222 (10-27-03).
Requested records are federal subpoenas which would relate directly to the federal grand jury and are to be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before the grand jury. 02-ORD-220 (11-19-02).
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. 96-ORD-155 (7-12-96).
A city police division's actions in making accident reports available for public inspection is improper as such records are confidential and disclosure is prohibited by KRS 61.878(1)(l) and KRS 189.635. 94-ORD-145 (12-9-94).
Requests for documents relating to rehabilitation of an insurance company, including records identifying the identity of bidders, the bids, examination reports regarding current financial conditions, and appraisals are improperly denied by the insurance department pursuant to KRS 304.2-270. 94-ORD-102 (8-30-94).
An open records request for an unredacted copy of a contract between a public utility and a private corporation containing trade secrets is properly denied as trade secrets are exempt from public inspection under KRS 365.880. 94-ORD-97 (8-5-94).
The department of corrections properly denies a request for financial records of a private provider of canteen operations pursuant to KRS 61.878(1)(k) and 197.510(7). 94-ORD-27 (3-2-94).
The education department properly denies a publisher's request for a copy of administrative regulations on diskette obtained from the legislative research commission; KRS 61.878(1)(k) and 7.510(3) operate in tandem to prohibit the release of administrative regulations on diskette to anyone other than agencies of the commonwealth and its political subdivisions. 93-ORD-142 (12-10-93).
The state police properly deny an attorney's request for a videotape of a DUI arrest pursuant to KRS 61.878(1)(k), incorporating KRS 189A.100(2) into the Open Records Act. 93-ORD-133 (11-9-93).
The lottery corporation improperly relies on KRS 61.878(1)(k) and 154A.040(1)(c) in denying a request for a copy of a list of a retailer's lottery sales. 93-ORD-44 (4-13-93).
18. Statistical information
Magoffin County Clerk's reliance on KRS 61.877(1)(a) as the basis for denying a request for voter assistance forms was largely misplaced; because the information contained on the form mirrors the information made public on voter registration records, the public's interest in insuring officials discharge their duties to prevent voter fraud outweighs the privacy interests of voters as to all information except social security numbers which should be redacted. 03-ORD-034 (2-24-03).
If the statute providing that there may be no exemption from the Open Records Law for statistical information not descriptive of any readily identifiable person means materials and data in the process of being accumulated, or which already have been accumulated, to the end that the court may select from it such portions as it deems pertinent for comparison with the facts of a case or cases to be reviewed by it, then a compliance with the statute would interfere with the work of the court. Ex parte Farley (Ky. 1978) 570 S.W.2d 617. Records 54
The Open Records Act and the confidentiality provisions relative to adoption proceedings support the decision of a public agency to not release the names of any persons appearing in adoption records, but the Open Records Act also requires the disclosure of statistical information not descriptive of any readily identifiable person and such data relative to adoptions and adoption proceedings should be made available by the public agency. OAG 87-71.
A public agency acts properly in denying a request for public inspection of a computerized listing of data when the list is in the process of being prepared and the computerized data system has not been completely prepared and installed. OAG 87-59.
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 draft of a water quality investigation report as a single unit can be withheld from public inspection as preliminary until it is made final, but the scientific and statistical data in the report showing the results of testing, etc., is not preliminary and should be made available for public inspection immediately. OAG 83-163.
A school properly withheld information as to an individual employee's race and gender where the employee has an interest in selective disclosure; where it is likely that the employee does not wish to make an issue of their race and gender and the agency provided alternative statistical information which would enable the public to monitor the school system's hiring and employment practices as to race and gender. 96-ORD-232 (11-1-96).
An independent school district may properly rely on KRS 61.878(1)(k) and 61.878(1)(l), incorporating state and federal Family Education Rights and Privacy Acts, in deny a request for records relating to student enrollment in the district which contains personally identifiable information, but they may not withhold the fourth day count containing raw census data. 00-ORD-158 (8-22-00).
19. Privileged material
Personnel records requested by employee for litigation were covered by attorney-client privilege, and thus excluded from production under Open Records Act, although employee asserted that disclosure of all records to be used in litigation by state employee was allowed, where privileged documents were not discoverable under rules of civil procedure. Hahn v. University of Louisville (Ky.App. 2001) 80 S.W.3d 771, review denied. Pretrial Procedure 378
A self-critical analysis privilege which would exempt from disclosure self-evaluative documents does not exist under the Open Records Act to allow a university to exempt from disclosure its official response to the national collegiate athletic association's (NCAA) allegations of rule violations since (1) any common law regarding access to records maintained by public agencies was codified and preempted by the general assembly's passage of the act; (2) even those courts which recognize the self-critical analysis privilege apply the privilege in the context of discovery in civil cases, not in the context of disclosure of public records; and (3) even if self-critical analysis privilege did exist, the university waived the privilege by releasing the response to the NCAA, a private entity. University of Kentucky v. Courier-Journal & Louisville Times Co. (Ky. 1992) 830 S.W.2d 373.
Eastern Kentucky University did not comply with procedural requirements and the Open Records Act in disposition of a records request, as EKU's partial denial of the request for parking citation appeals on the basis of 20 U.S.C. sec. 1232g was proper, but the invocation of attorney client privilege without sufficient proof that the records qualified for protection was improper. 05-ORD-136 (6-30-2005).
The University of Louisville violated KRS 61.880(1) in failing to respond to a request for statistical compilations relating to female breast cancer incidence rates by zip code; although the University was actuated by its commitment to strictly observe the privilege for information codified at KRS 214.556(6), its reliance on that provision, incorporated into the Open Records Act by KRS 61.878(1)(l) was misplaced, since the statistical compilation sought would not enable the public to readily identify persons whose condition or treatment has been reported to the Kentucky Cancer Registry. 04-ORD-077 (5-25-2004).
The attorney-client privilege cannot be used to close an otherwise public meeting unless the attorney-client discussions relate directly to proposed or pending litigation. OAG 97-001.
Even though the written response of an agency is procedurally deficient, the agency could properly rely upon the attorney-client privilege to close that portion of the meeting where the advice of the agency's legal counsel was communicated to members of that agency. 96-OMD-191 (9-11-96).
The city of Louisville improperly denies a request for travel expense records of a city attorney who attends a seminar on the grounds that the records were shielded from disclosure by the attorney/client privilege and the work product doctrine. 95-ORD-18 (2-21-95).
The insurance department properly relies on KRS 61.878(1)(k) and 422A.050(3) in denying a request for correspondence between attorneys representing the rehabilitator of a troubled insurance company under the attorney-client privilege. 93-ORD-139 (12-9-93).
The psychiatrist-patient privilege survives the death of the patient; thus, although KRS 72.415 authorizes a coroner to compel the release of records of psychiatric treatment after the patient's death, such records do not become public records and should not be publicly disseminated. OAG 92-24.
A city improperly withholds monthly statements prepared by its attorneys which reflect the general nature of the legal services rendered; only those records which disclose communications by the client or attorney in relation to the specific matter for which the attorney was retained can be withheld from inspection under the attorney/client privilege and KRS 61.878(1)(j). OAG 92-14.
A county attorney's office properly denies, on the grounds of attorney work product, a request to inspect all documents generated in the course of a criminal prosecution which contained the requesting party's name. OAG 91-214.
A public agency's denial of a request to inspect a document consisting of an opinion of the general counsel to the parole board is justified under the concepts of the attorney-client privilege and the work product of the attorney. OAG 88-49.
Documents which come within the attorney-client relationship may be withheld from public inspection. OAG 88-32.
Documents which involve the "work product" concept of the attorney-client relationship and which are preliminary to a final decision in an investigatory situation may be withheld from public inspection; however, such exception to public inspection is no longer applicable when litigation is completed or no longer contemplated. OAG 88-25.
Documents which constitute attorney work product and come within the attorney-client relationship may be excluded from public inspection. Correspondence between the legal divisions of state and federal agencies pertaining to an ongoing investigation of a state agency need not be made available for public inspection by the state agency. OAG 87-28.
A city properly denied a request to inspect a letter received by the city from its legal counsel that constitutes the work product of the attorney in the course of advising the city. OAG 85-20.
20. Exchange between public agencies
There is no unqualified right for one governmental agency to demand or to examine the total personnel files of another governmental agency. A court shall ultimately determine whether certain withheld material is pertinent to a pending litigation. Board of Ed. of Fayette County v. Lexington-Fayette Urban County Human Rights Commission (Ky.App. 1981) 625 S.W.2d 109.
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).
Members of a local board of education enjoy the same, but no greater, right of access to personnel files of classified and certified employees as do members of the general public, in order to avoid the appearance of impropriety, in view of the fact that the general assembly has vested exclusive responsibility for personnel actions on school superintendents. OAG 92-141.
Correspondence between two agencies pertaining to an investigation of a state agency need not be released by the state agency when it consists of preliminary documents containing observations, opinions, and comments of various personnel of the two agencies. OAG 87-28.
Documents which constitute attorney work product and come within the attorney-client relationship may be excluded from public inspection. Correspondence between the legal divisions of state and federal agencies pertaining to an ongoing investigation of a state agency need not be made available for public inspection by the state agency. OAG 87-28.
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 exemptions of KRS 61.878(1) are permissive in nature; therefore, a state agency has the discretion of whether it should release the social security numbers of its licensees. The Kentucky state racing commission should continue its policy of releasing such information to the horseman's benevolent and protective association to aid the operation of its benevolence program. A state agency must release such information to another state agency under the KRS 61.878(4) mandate that public agencies exchange public records for a legitimate government function. OAG 84-115.
A state agency is entitled to have access to the social security numbers of city employees for a governmental purpose. OAG 79-193.
The city of Louisville may withhold entries on informal complaints against police officers where the basis for the denial is articulated in terms of the requirements of the statutes; the city is not required to share unredacted records with another public agency. 96-ORD-177 (8-22-96).
The department of corrections improperly denies a request for correspondence between the department and the U.S. corrections corporation relating to complaints about two institutional parole officers. 94-ORD-27 (3-2-94).
The human resources cabinet improperly denies the nursing board's request for records relating to the cabinet's investigation of adult abuse by a nurse; KRS 61.878(5) mandates agency sharing of otherwise exempt public records in the discharge of a legitimate public function. 93-ORD-131 (11-9-93).
21. Separation of exempt and nonexempt material
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).
Northpoint Training Center's reliance on KRS 61.878(1)(j) as the basis for denying an employee's request for the investigative report generated after she filed a hostile environment complaint was only partially justified - because the employee who was the subject of the investigation, and against whom she complained was an unclassified employee who was dismissed without cause, there was no basis in the record for a determination that the report was adopted as the basis of his dismissal; but because the requester was a public employee, and portions of the report related to her, she was entitled to see those portions pursuant to KRS 61.878(3). 03-ORD-030 (2-18-03).
Cities must release sanitized versions of ambulance run reports containing general information on the runs but may continue to withhold information of a personal nature which appears in the reports. OAG 92-75.
A university's denial of a request to inspect an investigative file is proper where the investigation is not complete and a determination has not been made as to whether legal action will be initiated, but the university should release police incident reports after masking exempt information since these cannot be considered part of the investigative file. OAG 92-46.
A city correctly advises a requesting party that the portion of his request relating to ambulance run reports is moot inasmuch as it had agreed to release the reports after personal information was redacted. OAG 92-5.
The board of nursing must release names and addresses of all nurses it licenses, as well as information pertaining to educational qualifications and employment, but may withhold personal information such as age, gender, and race under KRS 61.878(1)(a). OAG 91-202.
The human resources cabinet acts consistently with the Open Records Act by blanking out the names of complainants and certain interviewees on copies of forms regarding complaints concerning possibly unlicensed day care facilities. OAG 90-12.
The general rule that the public is entitled to inspect the "original" of a public record does not hold where the record contains some information of a personal nature and some that is public, thus requiring separation of confidential information from public information; therefore, masking and copying of an original may be employed where feasible, or a list or transcript may be provided to satisfy inspection requirements for requested records that contain both public and confidential information. OAG 89-97.
A blanket denial of inspection of school personnel records by a county board of education is improper. Inspection of employment applications and resumes and records of educational qualifications must be permitted, provided that confidential information is masked or separated so as not to constitute an unwarranted invasion of personal privacy; employee "evaluations," inasmuch as they involve opinions, are not subject to inspection. OAG 89-90.
The transportation cabinet should allow review of driving records beyond the three-year policy deadline, but records containing any violation of the law, injury, or damage beyond the three years pursuant to KRS 187.310 should be separated out by the cabinet as excepted material. OAG 89-78.
A university properly denies a request to respect a job applicant's prior request for tenure and grade disputes, and should deny a request to inspect the job applicant's resume, vita, and job application, except to the extent they can be sanitized of all information of a personal nature. OAG 89-17.
A board of education properly and sufficiently responds to a request for materials pertaining to payroll and financial data concerning officers and employees of a school district by limiting such response to a list containing annual salaries and hourly wage figures of those officers and employees. OAG 88-13.
Where county occupational tax records contain material excepted from public inspection along with nonexcepted material such as names of contractors or construction companies licensed to exist, the county may make a list of such nonexcepted information, separate from the excepted information pursuant to KRS 61.878(4), to provide to the requesting party. OAG 87-57.
A public agency's denial of a request to inspect a list of names and addresses of coal companies which paid coal severance taxes is improper, as the agency may either separate exempt material from nonexempt material and permit the requesting party to inspect and compile a list or the agency may prepare a list itself and charge for its preparation time. OAG 86-11.
A student has the right to inspect records relating to him, but if the records contain non-exempted material (such as other students' names, disclosure of which involves an invasion of privacy under KRS 61.878(1)(a)), then that material must be separated from that to which access is allowed. OAG 83-427.
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. 97-ORD-66 (4-17-97).
It is improper for a police department to charge requester for programming time to delete confidential information from an existing database where police are obligated, pursuant to KRS 61.878(4), to separate exempt material contained in public records and make the nonexempt material available for inspection. 95-ORD-82 (5-24-95).
A university properly redacted information regarding opinions given in the evaluation of tenure progress of an employee where the opinions were not adopted by the university as basis for its action. 94-ORD-108 (9-19-94).
22. Court orders and records
An agency properly denies a request for records which fall within the terms of a protective order entered by a federal district court. OAG 92-119.
Records generated by or for the courts are not subject to the Open Records Act, and the "reasonable fee" provision of that Act does not apply to court records. OAG 91-193.
A public agency properly denies a request to inspect a document prohibited from disclosure by a protective order entered by a court of competent jurisdiction in an action pending before it in which the agency is a party. OAG 91-121.
The human resources cabinet improperly denies a request to inspect a document identified as an "audit program" by invoking exemptions under the federal Freedom of Information Act, 5 USC 552, as federal legislation authorizing nondisclosure pursuant to KRS 61.878(1)(i). OAG 91-56.
Pleadings filed with a court and in the possession of a public agency are subject to public inspection. OAG 90-77.
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.
Control of court records is reserved to the various courts by KRS 26A.200 and 26A.220; such records are thus not subject to provisions of the Open Records Act. OAG 87-53.
Court records are not subject to the terms and provisions of the Open Records Act. OAG 85-105.
Court records, including the records of agencies of the court, are under the exclusive jurisdiction of the court of justice and are not subject to statutory regulation. The board of bar examiners is an agency of the court, and a person who wishes to examine its records must contact the court of justice for information relative to a consistent policy of handling records of the board of bar examiners. OAG 85-9.
The insurance department improperly denies a request for documents revealing the identities of bidders for an insurance company under court ordered rehabilitation. 93-ORD-113 (10-7-93).
23. Public employees and licensees
23A. In general
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
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)
Information relating to academic credentials of public employees is not exempt from disclosure pursuant to KRS 61.878(1)(a). OAG 92-121.
The state police properly respond to a request for employee disciplinary actions, employment applications, duty assignments, background investigations, and evaluation reports by releasing such records with appropriate exclusions pursuant to KRS 61.878(1)(a), 61.878(1)(g), and 61.878(1)(h). OAG 92-85.
The state police properly denies a request to inspect the entire personnel file of a former employee since some information therein is personal in nature; the requesting party must identify specific documents sought so the custodian can determine if the requested records are exempt under KRS 61.878(1)(a). OAG 91-203.
The workforce development cabinet improperly denies inspection of documents pertaining to layoffs of employees after final action has been taken and the documents have been incorporated into such final agency action. OAG 91-154.
A university improperly denies a request to inspect findings and recommendations prepared by a grievance committee for submission to the president for final decision; such findings and recommendations lose their preliminary status when adopted by the president on the university's final action. OAG 91-090.
The personnel department may adopt a policy prohibiting disclosure of state employees' home addresses pursuant to KRS 61.878(1)(a). OAG 91-81.
The Kentucky horse park acts consistently with the Open Records Act in making available for inspection those documents relative to the use of mowing equipment by agency personnel; it need not honor requests to examine entire personnel files of employees or blanket requests for material. OAG 90-83.
A city acts inconsistently with the open records law in refusing inspection of employee time and attendance records that underlie public safety payments. OAG 90-34.
A refusal to furnish records pertaining to disbursements by the Kentucky state police legal fund which identify the officer on whose behalf the expenditure was made and the law firm or attorney who received a particular payment is supported by the privacy exception to public inspection, since the legal fund consists of voluntary contributions by police personnel of their personal funds. OAG 87-70.
In the absence of a court decision in this state requiring the disclosure of the home addresses of governmental employees, a county government may adopt a policy whereby it refuses to disclose such information. OAG 87-37.
A public agency improperly denies a request to inspect and obtain copies of photographs of a particular police officer as the public agency cannot invoke the invasion of personal privacy exemption to impose a uniform ban on all requests for photographs of police officers taken in connection with their official positions and functions. OAG 87-31.
A public agency may adopt a records and documents policy pertaining to the names of persons involved in a summer youth employment program for low income persons that prohibits the release of the names of program applicants and participants. OAG 86-62.
A superintendent's denial of a request to inspect teacher attendance records for a particular time period is improper, as such documents are not protected by the privacy exemption because teachers as public employees are only entitled to compensation for services rendered and the attendance sheets verify their presence on the job during any particular time period. OAG 86-55.
A public agency acts improperly when it deletes from records made available for public inspection all the telephone numbers called from designated state telephone numbers when such numbers appear on the K.A.T.S. printouts of telephone calls, and although there may be situations where the exceptions to public inspection apply, a public agency cannot, under a blanket application of the privacy exemption of the Open Records Act, refuse to release these telephone numbers. OAG 86-21.
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.
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 public employee's time sheet confirms time spent in public service for which public funds were received in consideration. A time sheet, therefore, is subject to public inspection under the open records law. KRS 61.878(1)(a) does not apply to exemption of time sheets from inspection because no personal privacy is involved and no protection against an unwarranted invasion thereof is required. OAG 84-161.
A request by the EEOC for the personnel files of ten teachers who are not involved in a discrimination case before the commission may be denied on the grounds of a policy making personnel records confidential. OAG 83-329.
Proposals and counterproposals submitted in the negotiating process by a school board and an organization representing teacher employees are not required to be open to public inspection. OAG 79-326.
The home address of a state employee is a private matter and should not be released to the public by the department of personnel; other various examples of private information exempted from the open records law are discussed. OAG 76-717.
City of Louisville division of police properly denied an unsuccessful applicant for police recruit access to the background investigation. 00-ORD-118 (6-1-00).
23B. Job applications, classifications and pay
Resumes, job applications, and attendance sheets of school employees are subject to public inspection. OAG 91-176.
The transportation cabinet properly denies inspection of records of state government attorneys containing information of a personal nature, but improperly denies inspection of resumes and employment applications from which personal information can be redacted. OAG 91-155.
A university properly denies a request to inspect salary recommendations under KRS 61.878(1)(h). OAG 91-133.
A board of education properly denies a request for copies of recommended salary increases, under KRS 61.878(1)(h), and for "media packets" consisting of agenda item materials, because it constitutes a "standing request" and fails to identify with reasonable particularity the documents the requesting party wishes to inspect. OAG 91-78.
A water district may properly exempt from inspection a letter of reference of an employee, but may not exempt a resume of an employee insofar as it relates to prior work experience and educational qualifications, although personal information contained in the resume is exempt and should be redacted. OAG 91-48.
Applications of unsuccessful applicants for state jobs are exempt from public inspection and copying pursuant to KRS 61.878(1)(a) and 61.878(1)(g). OAG 90-113.
A university properly denies a request to inspect a job applicant's prior request for tenure and grade disputes, and should deny a request to inspect the job applicant's resume, vita, and job application, except to the extent they can be sanitized of all information of a personal nature. OAG 89-17.
A board of education properly and sufficiently responds to a request for materials pertaining to payroll and financial data concerning officers and employees of a school district by limiting such response to a list containing annual salaries and hourly wage figures of those officers and employees. OAG 88-13.
A school system's refusal to release for public inspection the resume of one of its employees is supported by the exception to public inspection relating to protection against an unwarranted invasion of personal privacy. OAG 87-77.
A public agency's denial of a request to inspect and copy those records relative to salary figures of police department personnel is improper; however, a denial of a request to inspect a police department's operations manual is supported by KRS 61.878(1)(h), as it is an intra-agency document setting forth policies and recommendations. OAG 86-38.
A public agency's denial of a request to inspect contracts, retainer agreements, and other documents pertaining to the employment relationship between the agency and its attorney was improper. The denial of a request to inspect records of payments from the agency to its attorneys other than as contained in regular income and accounting records was also improper. OAG 85-91.
The reports of two fires, made by the fire chief to the city manager, are not open to public inspection under KRS 227.370 and 61.878(1)(h). Resumes of the fire chief, assistant fire chiefs, and city manager are also not open to public inspection due to personal privacy under KRS 61.878(1)(a). OAG 84-19.
Departmental reports to the department of personnel concerning possible inequities or disparities which have resulted from the restructuring of the state classification and pay plans are exempt from mandatory public inspection. OAG 82-431.
Intra-office memoranda are exempt from public inspection. The salary of a public employee is not protected information under the privacy exemption. OAG 79-469.
A university properly denies a requester access to amounts of outside athletically related income earned by the athletic department staff where such information is required to be on file by NCAA regulation, but the university improperly denied access to the records of the sources of such outside income because individuals do not work in secret, such that their place of employment will rise to the level of personal information. 97-ORD-85 (5-27-97).
The personnel department properly denies a request for the state register of eligible applicants for public employment pursuant to KRS 61.878(1)(a), where the unsuccessful applicant's privacy interests outweigh the benefits of disclosure. 96-ORD-1 (1-9-96).
An agency improperly denies a request by an applicant to review background investigation reports relative to his application for cadet trooper classes absent statutory language making the reports confidential. 95-ORD-84 (5-25-95).
A request for post-decisional memoranda relating to job classification plan are subject to disclosure under the open records law; in order to fall within the "deliberative process" exception, a document must be antecedent to adoption of agency policy and must be related to the process by which policies and formulated. 94-ORD-89 (7-19-94).
23C. Discipline
Open Meetings Act, which allowed closure of meetings at which specific personnel issues relating to specific public employees would be discussed, did not preclude disclosure of disciplinary complaint against police officer, after final action was taken in disciplinary action, namely acceptance of officer's resignation, where complaint would not needlessly subject reputation of witnesses to public scrutiny, but rather, only people who could have reputations harmed were police officers who were accused of neglecting duties. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Municipal Corporations 92; Records 60
Provision of Open Records Act, which allowed disclosure of disciplinary complaint against police officer after final action on disciplinary issue was taken, did not conflict with Open Meetings Act, which precluded public access to meetings at which personnel issues relating to specific employees were discussed, given that once agency took final action in disciplinary proceeding, complaint that initially spawned that proceeding was subject to public scrutiny. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Municipal Corporations 92; Records 60
Personal privacy exemption of Open Records Act did not apply to preclude newspaper from gaining access to complaint against police officer, which alleged that officer neglected duty to public by having inappropriate relationship with another officer while on duty, where public had legitimate interest in complaint, which did not contain information concerning any innocent, private citizen, complaint was embarrassing or humiliating to only police officer and fellow officers, and police officer had been sworn to protect public. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Records 58
Entire complaint filed against former police officer was subject to public scrutiny under Open Records Act, without redaction of names and addresses, where no private citizen would be subject to embarrassment or humiliation by release; only names that police officer sought to have redacted were those of police officers who were either allegedly involved in inappropriate conduct with officer or involved in investigation itself as witnesses. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Records 58; Records 66
Decision of city commission to end disciplinary hearings against police officer upon resignation constituted "final action," and thus complaint filed against officer was no longer subject to preliminary matters exception to disclosure under Open Records Act; had commission proceeded with disciplinary proceedings after resignation, nothing further could have been gained, commission would have been wasting government resources, and resignation was last action to be taken in matter. Palmer v. Driggers (Ky.App. 2001) 60 S.W.3d 591. Records 60
Kenton County Fiscal Court failed to meet its statutorily assigned burden of proof in denying a request for records relating to the dismissal of the Director of Kenton County Animal Control. 04-ORD-031 (2-13-04).
A city improperly withholds records reflecting charges against a police officer and final action taken thereupon; the public's right to be informed outweighs the employee's privacy interest in keeping such information secret. OAG 92-34.
A school superintendent is not authorized by KRS 61.878(1)(a) to withhold from public inspection documents pertaining to teacher discipline. OAG 91-198.
A university improperly denies a request to inspect tape recordings of investigatory proceedings involving employee misconduct. OAG 91-109.
A school superintendent properly denies a request for access to documents compiled in an investigation of a school employee's misconduct where the documents were not incorporated into the final agency action. OAG 91-102.
Records concerning the discipline of university employees for job-related misconduct are not exempt from public inspection under KRS 61.878(1)(a). OAG 91-41.
A water district's refusal to permit inspection of polygraph test results is justified as such documents may be excluded from public inspection pursuant to KRS 61.878(1)(a). OAG 90-144.
The privacy exception to public inspection in KRS 61.878(1)(a) does not apply to final disciplinary action taken against a public employee as such final action taken by a public agency is a matter of public record. OAG 88-25.
Where a teacher requests that a hearing on the termination of his contract be public, a tape recording of such hearing should be made available for public inspection. OAG 87-62.
A board of education's denial of a request to inspect a letter of disciplinary recommendation from a school principal to the board of education was proper because the denial appears to be covered by the privacy exemption and is covered by the exemption for preliminary recommendations, unless the letter represents final action by the board or it is incorporated into a final decision or report of the board. OAG 85-90.
An agency's denial of a request to inspect a portion of a tape recording involving a firefighter's disciplinary hearing before the civil service board was proper under KRS 61.878(1)(a), as the release of that particular testimony would constitute a clearly unwarranted invasion of the firefighter's personal privacy. OAG 85-83.
Agency's denial of a request to inspect written instructions of the acting director to an employee relating to employee conduct and the agency's denial of a request to inspect the instructions of a supervisor (if written) to an employee relating to employee conduct were improper because such instructions, if written, are not intra-office memoranda or preliminary recommendations excluded from the application of the open records law pursuant to KRS 61.878(1)(h). OAG 85-59.
The matter of disciplining a state employee does not come within the exception of personal privacy. The admission of the truthfulness of the charges does not make the charges forever confidential. When final action is taken on the charges, the charges should be made available for public inspection. OAG 78-133.
University of Louisville improperly denied an open records request for a university employee since the university was not a party to the litigation and the records are discoverable, nonexempt records. 00-ORD-97 (4-13-00).
23D. Evaluations
Limited disclosure to newspaper of performance evaluations of county employee and director of county parks department, who was employee's supervisor, with personal information redacted, was warranted under Open Records Act, where employee allegedly committed a crime, since by committing a crime, the employee to some extent forfeited his privacy interest in non-personal information contained in his evaluations, and public interest in the operation of the agency justified access to the non-personal information in the evaluations of the supervisor. Cape Publications v. City of Louisville (Ky.App. 2006) 191 S.W.3d 10. Records 66
The performance of an agency head is of significant public interest, and the disclosure, under the Open Records Act, of a performance evaluation of someone in such a position of authority serves that public interest, but on the other hand, the performance of an ordinary employee or even one of comparatively high rank is not of such significant public interest that it should be subject to disclosure. Cape Publications v. City of Louisville (Ky.App. 2006) 191 S.W.3d 10. Records 58
Performance evaluations can contain a great deal of personal information, and should not be subject to disclosure under the Open Records Act without the most pressing of public needs. Cape Publications v. City of Louisville (Ky.App. 2006) 191 S.W.3d 10. Records 58
The confidentiality of performance evaluations allows evaluators to speak more frankly about an employee than they might if the evaluations were known to be open to public disclosure pursuant to the Open Records Act. Cape Publications v. City of Louisville (Ky.App. 2006) 191 S.W.3d 10. Records 58
Metro Parks Department's disclosure of employees' personnel files in public's interest with exception of the employees' performance evaluations, disclosure of which is an unwarranted invasion of personal privacy. 02-ORD-197 (10-25-02).
A university properly denies a request to inspect the annual review of the president by the board of trustees where no written report was generated, personal notes used by the chairman in summarizing the review for the full board were preliminary memoranda in which opinions were expressed, and documents contained opinions of evaluators disclosure of which would constitute invasion of personal privacy. OAG 91-161.
The personnel department properly denies a request for "personnel file" of a named individual under KRS 61.878(1)(a) where the requesting party does not identify specific documents. Employee evaluations are exempt from disclosure under KRS 61.878(1)(a). OAG 91-62.
The transportation cabinet acts inconsistently with the Open Records Law in denying inspection of a promotional bulletin comparison sheet for a position in question even though evaluation recommendation comments contained on such sheets are not generally subject to public inspection. OAG 90-35.
A city acts inconsistently with the Open Records Act in making a blanket denial of a request to inspect a performance evaluation and related documents regarding the police chief. OAG 90-1.
A city may exclude from public inspection an evaluation of a policeman prepared by his superiors. OAG 87-64.
A school system acts in conformity with the open records law when it denies a former teacher's request to inspect her personnel file because if it contains no evaluations the question is moot and if it does contain evaluations, denial is proper according to KRS 61.878(1)(a). OAG 86-15.
Public agency's denial of request to inspect a report of the management evaluation of the state police's auto theft section, prepared by state police inspections and evaluations section, for submission to state police commissioner for such final action or decision as he deems appropriate, was proper under KRS 61.878(1)(g) and 61.878(1)(h) so long as the report neither indicates final action by the state police nor involves a preliminary report incorporated into a final report by the state police. OAG 85-138.
Incident reports and daily log sheets on specific individuals in a residential service facility are exempt from public inspection as a protection against an unwarranted invasion of privacy. Evaluative memorandum of the residential service facilities is also exempt due to the right of privacy of the subject and author, as well as the memorandum being a preliminary memorandum in which opinions are expressed. OAG 83-286.
A college professor does not have a right to review the letters from other members of the faculty evaluating him. OAG 82-204.
Personnel files contain material of a personal nature where the public disclosure thereof would constitute an invasion of personal privacy; thus the evaluation of a teacher's performance is a matter of opinion and a teacher is entitled to have this information withheld from the public; therefore, a teacher has no more right than the public to inspect an evaluation under the open records law. OAG 77-394.
A notice from a university chancellor to a dean notifying the dean of disapproval of recommendation to promote a faculty member was improperly redacted; a predecisional document incorporated into final agency action forfeits the preliminary status and makes them subject to disclosure. 94-ORD-108 (9-19-94).
A university properly denies a request for those portions of student evaluations of instructor performance "which were used in determining whether a professor received any particular benefit or detriment" or "which have a direct bearing on the management and functions of the department." 93-ORD-17 (2-12-93).
A school superintendent improperly denies a request for access to his annual performance evaluation in toto; the public's interest in reviewing those portions of the evaluation which have a direct bearing on his management of the school system, and the progress of the school system generally, is superior to the reduced expectation of privacy in that document which the superintendent might have. 92-ORD-1145 (9-10-92).
23E. Complaints
Once final disciplinary action has been taken by the Kentucky state board of medical licensure, any complaint, report, memorandum, or letter made part of the record in the action must be open to public inspection as the documents are no longer within the exceptions of KRS 61.878(1)(g) and 61.878(1)(h). Kentucky State Bd. Medical Licensure v. Courier-Journal and Louisville Times Co. (Ky.App. 1983) 663 S.W.2d 953.
The health department must release for inspection a complaint which spawned an investigation but may adopt a policy of withholding the identity of the complainant. OAG 91-160.
The human resources cabinet may not deny inspection of a written complaint which spawns an investigation of child abuse pursuant to KRS Ch 620, but the names of informants contained within the written complaint or spawning the investigation may be exempted from inspection. OAG 91-33.
"Citizen complaints" are public records and are not exempt from public inspection under KRS 61.878(1)(a), 61.878(1)(g), or 61.878(1)(h). Intra-office memoranda containing oral allegations of a citizen against a public employee and in which opinions are expressed are exempt from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h) as preliminary drafts, recommendations, and memoranda. OAG 90-58.
A city which refuses to make available for public inspection those complaints which spawned investigations or resulted in hearings involving the named chief of the fire department violates the terms and provisions of the Open Records Act. OAG 89-74.
The natural resources and environmental protection cabinet's refusal to disclose the identity of any citizen complainant who has requested confidentiality in relation to a complaint made of an alleged violation is supported by law, and thus those complaints are not subject to inspection, and the remaining portions of the citizen's complaints may be withheld, subject to the cabinet's judgment, only until the cabinet decides to take no action or the action taken is completed. OAG 89-73.
A city properly responds to a request for copies of all complaints filed against a particular peace officer when it only makes available for public inspection copies of the documents setting forth the city's final action relative to the disciplinary case pertaining to the policeman and a copy of the letter of complaint which initially spawned the investigation involving that officer. OAG 87-32.
A public agency properly denies a request to inspect and copy public documents, pertaining to a complaint and the subsequent investigation of the complaint, which consist of names, addresses, and telephone numbers of persons contacted and other material of a preliminary nature. OAG 86-60.
A document which constitutes the complaint which initially spawned a board's investigation is not properly excluded from public inspection. OAG 86-46.
It is proper to prohibit the inspection of documents pertaining to complaints against a psychologist licensed by the psychologists board where the board's examination of this individual was not finite before the individual's resignation from practice in the Commonwealth. OAG 85-147.
The public inspection of charges and complaints which spawned an investigation should have been permitted because the investigation had been concluded and a final determination already made; the letter of resignation of a public employee should have been made available for public inspection. OAG 85-136.
A public agency's denial of a request to inspect documents described as investigatory documents, memoranda, notes, and preliminary recommendations of a public agency was proper as such materials are exempt from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h). The denial of a request to examine the complaints that spawned the investigation was proper until such time as the public agency completes its enforcement action or makes a decision to take no such action, at which time the complaints, minus complainants' names, must be made available for public inspection. OAG 85-126.
A complaint filed by a citizen against a police officer and the final report of the police chief concerning the disposition of the complaint are open to public inspection; however, the investigatory report arising out of the complaint is open to inspection only if the report was incorporated into the final report. OAG 85-77.
A citizen's complaint to the Louisville department of housing is preliminary and excluded from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h) until final action is taken by the department. Final action was demonstrated by an order to board issued by the department, thereby opening the complaint to public inspection. The complainant's name, however, is exempted from public inspection pursuant to KRS 61.878(1)(a) as a protection against an unwarranted invasion of personal privacy. OAG 84-315.
Once an agency renders a final report and thereby takes final action, the final report and any investigatory documents incorporated into the final report are open to public inspection. Investigatory documents which are not incorporated into a final report remain closed as preliminary documents pursuant to KRS 61.878(1)(g) and 61.878(1)(h). Complaints which spawned the final action are, however, open once the final report is issued. OAG 83-425.
After an internal affairs investigation, the public cannot inspect the investigative report, but may inspect the final action taken on the complaint. Inspection of the initial complaint must be decided on a case by case basis. OAG 83-39.
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.
A county judge/executive improperly relies on KRS 61.878(1)(a) and 61.878(3) as the statutory basis for denying a request for a former jail employee's job application, complaints filed against the employee and the final disposition of the complaints and a letter of termination, where such documentation is of unique public concern and overrides the employee's privacy interest. 02-ORD-140 (8-2-02).
24. Workers' compensation and unemployment records
Information contained in "Employer's First Report of Injury" forms, submitted to Department of Workers' Claims under Workers' Compensation Act, contained information of personal nature, for purposes of determining whether request for such information under Open Records Act constituted clearly unwarranted invasion of personal privacy, where forms contained information regarding worker, including name, marital status, date of birth, number of dependents, wage rate, social security number, home address and telephone number. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet (Ky.App. 1994) 902 S.W.2d 825, review denied. Records 58; Workers' Compensation 1255
An urban-county government properly denies inspection of medical records, investigative reports, and attorney work product found in a workers' compensation claim file. OAG 91-185.
Preliminary records of investigations of unemployment insurance claims are exempt from disclosure requirements of the Open Records Act pursuant to KRS 61.878(1)(g) and 61.878(1)(h). OAG 90-111.
The unemployment division improperly denies a request to inspect records pertaining to the names of specific persons who have filed claims for benefits under the provisions of the unemployment insurance program. OAG 88-68.
The human resources cabinet acts properly in denying a request to inspect records pertaining to unemployment insurance claims and material collected and compiled in connection therewith, pursuant to KRS 61.878(1)(j), where such records have been made confidential by statute pursuant to KRS 341.190(3). OAG 87-49.
A public agency's denial of a request to inspect and copy records pertaining to unemployment insurance claims of two individuals is proper as such records are excluded from public inspection. OAG 86-56.
Final order of the Kentucky unemployment insurance commission is open to public inspection as evidence of a final agency action. OAG 83-405.
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.
The department of revenue may properly deny inspection of adjusted cost reports filed by group self-insured employers for workers' compensation purposes. KRS 131.190(1) makes tax reports to the department confidential. OAG 83-78.
25. Administrative investigations
A state university's official response to the national collegiate athletic association's (NCAA) allegations concerning rule violations by university athletic staff members in sending $1,000 in cash to an out-of-state basketball recruit is not exempt under KRS 61.878(1)(f) since that exemption applies only to law enforcement agencies or agencies involved in administrative adjudication; the university itself conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication" and the exemption does not apply after enforcement action is complete or a decision is made to take no action. University of Kentucky v. Courier-Journal & Louisville Times Co. (Ky. 1992) 830 S.W.2d 373.
A state university's official response to the national collegiate athletic association's (NCAA) allegations concerning rule violations by university athletic staff members in sending $1,000 in cash to an out-of-state basketball recruit is not exempt under KRS 61.878(1)(g) and 61.878(1)(h) since these subsections exempt only documents which are preliminary in nature and the response signed by the university's president and submitted to the NCAA constituted the final result of an extensive investigation; the submission of the response prior to final action by the NCAA is irrelevant since the agency subject to the provisions of KRS 61.878 is the university, nor does it matter that the university's response contained investigatory materials that were once preliminary in nature since preliminary investigatory materials lose their exempt status once they are adopted by the agency as part of its action. University of Kentucky v. Courier-Journal & Louisville Times Co. (Ky. 1992) 830 S.W.2d 373.
Once final disciplinary action has been taken by the Kentucky state board of medical licensure, any complaint, report, memorandum, or letter made part of the record in the action must be open to public inspection as the documents are no longer within the exceptions of KRS 61.878(1)(g) and 61.878(1)(h). Kentucky State Bd. Medical Licensure v. Courier-Journal and Louisville Times Co. (Ky.App. 1983) 663 S.W.2d 953.
The exemption for "correspondence with private individuals" does not exempt from inspection or copying correspondence from a member of a certified public accounting firm to a school superintendent and members of a local school board pertaining to an audit by the firm conducted pursuant to a contract with the school board. OAG 92-44.
The justice cabinet properly denies a request to inspect documents identified by general character only as opposed to by particular subject, but improperly withholds documents consisting of annual compliance reports. OAG 92-16.
The state police properly deny a former trooper's request for access to internal affairs files. OAG 91-124.
A city properly denies a request to inspect a report prepared by a fire chief subsequent to a fire, pursuant to KRS 61.878(1)(j) and 227.370 and as a preliminary document. The city improperly denies a request to inspect a list of fire and building code violations since these are not preliminary. OAG 91-100.
Where sexual harassment victims testify in open hearings, they do not have a cognizable personal privacy interest, and recommended findings and orders of the personnel board need not be redacted to preserve the privacy of victims. OAG 91-094.
A metropolitan sewer district properly denies inspection of internal guidelines used to evaluate potential sewer treatment sites and negotiation strategy pursuant to KRS 61.878(1)(h). OAG 91-31.
Recommendations from elected public officials to the parole board containing opinions on whether inmates should receive a parole hearing or be granted parole are exempt from public inspection pursuant to KRS 61.878(1)(h). Records compiled in the process of the detection and investigation of violations may be exempt from public inspection pursuant to KRS 61.878(1)(f) even though the agency which possesses the records is not conducting the investigation. OAG 90-97.
A tentative denial of a permit by the natural resources cabinet does not terminate the administrative adjudication, and records pertaining to such matter may be withheld from public inspection pursuant to KRS 61.878(1)(f). OAG 90-72.
The waste management division acts inconsistently with the Open Records Act by issuing a blanket denial of inspection of a computer printout which contains some information subject to public inspection and some information which can be properly withheld as "notes." OAG 90-10.
A county human rights commission acts improperly in denying a request to inspect investigative files. OAG 89-18.
The labor cabinet properly withholds all documents and records pertaining to an investigation which is the subject of an ongoing administrative proceeding. OAG 89-13.
A county human rights commission improperly denies a request to inspect its complete investigative case file. OAG 88-69.
Where an administrative proceeding has not yet been completed and a tentative settlement has not yet been approved, the labor cabinet may withhold all documents pertaining to the investigation which is the subject of the administrative proceeding. OAG 88-36.
The authority of the workplace standards department commissioner to "question privately any employee" in an occupational safety and health investigation under KRS 338.101(1)(a) implies that records of such employee interviews are protected from public inspection. OAG 88-9.
The labor cabinet's denial of a request to inspect and copy a compliance officer's worknotes and two employee interview statements in an occupational safety and health investigative file is proper under KRS 61.878(1)(g), 61.878(1)(h), 61.878(1)(j), and 338.101(1)(a). OAG 87-79.
Where a teacher requests that a hearing on the termination of his contract be public, a tape recording of such hearing should be made available for public inspection. OAG 87-62.
A public agency's denial of a request to inspect records in question is proper where the investigations pertaining to a death and fire have not yet been completed and a determination has not yet been made as to whether legal action will be taken. Once the investigation has been completed and legal action has been completed or a decision has been made to take no legal action, the documents in question will be subject to public inspection unless exempted by another statutorily recognized exception to public inspection. OAG 87-35.
A public agency's denial of a request to inspect and copy documents in the agency's investigative file is proper under KRS 61.878(1)(f) when the matter under investigation is to be assigned for hearing and thus the administrative proceedings have not been completed. OAG 87-29.
A denial of a request to inspect and copy documents in a public agency's investigative file is proper under KRS 61.878(1)(f) when such agency is involved in an active and ongoing investigation, the matter pertaining to back wages has not been resolved, and the agency has not yet issued its tenative finding of fact which will officially conclude the investigation. OAG 87-26.
Until the superintendent and his staff complete the investigation of a matter and he makes his decision relative to what recommendation he will present to the education board, the entire investigatory file pertaining to a matter may be kept confidential. OAG 87-23.
A denial by the state police of a request to inspect intraoffice memoranda concerning an ongoing investigation is proper. OAG 87-10.
A public agency's denial of a request to inspect records is proper where the investigation of the fire has not been completed and no determination has been made as to whether legal action will be taken. OAG 86-81.
A public agency's denial of a request to inspect and copy a report pertaining to an internal affairs investigation conducted by state police is proper. OAG 86-78.
A public agency properly denies a request to inspect and copy monthly and annual reports submitted to the central state government from one of its agencies in the field, and requests to inspect various management reviews of a field agency, providing the documents in question neither indicate final agency action nor are incorporated into a final agency report. OAG 86-64.
Since the facts and materials supplied subsequent to the rendering of OAG 85-136 indicate that the board of trustees has not yet made a final determination relative to the charges and complaints filed against the fire district's fire chief, such charges and complaints need not be made available for public inspection at this time. OAG 85-144.
Public agency's denial of request to inspect a report of the management evaluation of the state police's auto theft section, prepared by state police inspections and evaluations section, for submission to state police commissioner for such final action or decision as he deems appropriate, was proper under KRS 61.878(1)(g) and 61.878(1)(h) so long as the report neither indicates final action by the state police nor involves a preliminary report incorporated into a final report by the state police. OAG 85-138.
A public agency's denial of a request to inspect documents described as investigatory documents, memoranda, notes, and preliminary recommendations of a public agency was proper as such materials are exempt from public inspection pursuant to KRS 61.878(1)(g) and 61.878(1)(h). The denial of a request to examine the complaints that spawned the investigation was proper until such time as the public agency completes its enforcement action or makes a decision to take no such action, at which time the complaints, minus complainants' names, must be made available for public inspection. OAG 85-126.
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.
Request to inspect complaints and other documents received by a local human rights commission concerning the Lexington-Fayette urban county housing authority and its employees was properly denied where the complaints have not progressed to the point where an order of dismissal or a conciliation agreement has been entered or a hearing has been held. OAG 85-5.
The labor cabinet properly denied access to an audit report compiled during an investigation that has not yet been completed. OAG 84-225.
Once an agency renders a final report and thereby takes final action, the final report and any investigatory documents incorporated into the final report are open to public inspection. Investigatory documents which are not incorporated into a final report remain closed as preliminary documents pursuant to KRS 61.878(1)(g) and 61.878(1)(h). Complaints which spawned the final action are, however, open once the final report is issued. OAG 83-425.
Police active case files and internal affairs memoranda are exempt from public inspection. Active case files are closed while a case is pending and certain documents are still exempt from inspection after the case is closed. Police internal affairs memoranda are exempt from inspection. Only internal affairs reports indicating a final action and the underlying complaint are open. OAG 83-366.
Kentucky department of labor's audit report of the city of Shively is exempt from public inspection until prospective administrative adjudication is complete or a decision is made to take no action. Supporting documents remain preliminary even after the audit is open to inspection. OAG 83-326.
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.
The department for human resources cannot make public a list of parents against whom the Commonwealth has received a subrogated claim for recovery of support payments made in connection with the aid to families with dependent children program. OAG 82-641.
Departmental reports to the department of personnel concerning possible inequities or disparities which have resulted from the restructuring of the state classification and pay plans are exempt from mandatory public inspection. OAG 82-431.
The report of the annual audit of a city should be made available for public inspection under the open records law and also under the statute pertaining to cities. OAG 82-340.
The records of cases before the KOSH review commission are generally open to public inspection. OAG 78-400.
The file on a complaint of a housing violation is a public record and should be open to inspection. OAG 76-650.
The detailed line-item budget of a school district is a public record and is not exempt from the open records law. OAG 76-551.
Taped interviews of the oral history commission made with the understanding that they will not be made public for a period of time are not open records subject to public inspection. OAG 76-419.
Although KRS 61.878(1)(k) and (l) authorize Bullitt County Public Schools to redact names of students appearing in a document prepared by a teacher concerning alleged misconduct of a fellow teacher, the school system must otherwise disclose entire document to the teacher who was the subject of the document, and subsequent disciplinary action, on the basis of KRS 61.878(3). 03-ORD-068 (4-7-03).
The human resources cabinet improperly relies upon KRS 61.878(1)(h) in denying an agency employee's request to inspect records relating to the employee as the exception applies only to administrative adjudications initiated by the employee. 95-ORD-97 (7-7-95).
The transportation cabinet improperly denies a request for records relating to a rural roads program under KRS 61.878(1)(h) on the basis that the records have been subpoenaed as the Transportation Cabinet is not a law enforcement agency or an agency involved in an administrative adjudication. 95-ORD-95 (7-7-95).
An agency properly denies a request to inspect accident reports, such reports are confidential and disclosure is prohibited by KRS 61.878(1)(l) and 189.635(5). 95-ORD-17 (2-17-95).
The corrections department administrator of offender records improperly denies a request for documents relating to an inmate's job assignment and disciplinary write ups, since KRS 61.878(1) provides an exemption from disclosure under the Open Records Act for parties involved in a lawsuit; the requesting party in this case is not a party to the lawsuit and is entitled to access to the records. 94-ORD-19 (2-25-94).
City of Louisville division of police properly denied an unsuccessful applicant for police recruit access to the background investigation. 00-ORD-118 (6-1-00).
26. Inspection of own records
There is a compelling reason for not releasing a copy of the presentence investigation report to a criminal defendant, namely the protection of confidential sources, and as KRS 532.050(4) specifies that the court shall advise the defendant of the factual information contained in the report and not that the court shall release a copy of the report, and since the report is excluded from public inspection as confidential and privileged by statute, defendants are not entitled to a copy of their presentence investigation report at presentence and postconviction stages. Com. v. Bush (Ky. 1987) 740 S.W.2d 943.
Provision of Open Records Act that states no court shall authorize inspection by party of materials pertaining to civil litigation beyond that which is provided by Rules of Civil Procedure governing pretrial discovery overrode provision of Act that allows public agency employees to inspect and copy records relating to themselves, and thus, Act operated conclusively to prevent disclosure to former county employee of records that were protected by attorney-client and attorney-work-product privileges where employee did not show that he had substantial need of the materials and that he was unable without undue hardship to obtain substantial equivalent of the materials by other means. Meriwether v. Lexington Fayette Urban County Government (Ky.App. 2002) 2002 WL 10192, rehearing denied, review denied, opinion not to be published.
A defendant convicted of murder who waives preparation of a presentence investigation report at the time of his final sentencing, and who is informed in prison by his caseworker that such a report had been prepared and is being used for purposes of classification and determination of eligibility for involvement in programs at the institution, is entitled to be informed of the factual material in the report and to a reasonable time to controvert that information, but not to a copy of the report, since sources of confidential information must be protected. Com. v. Bush (Ky. 1987) 740 S.W.2d 943. Sentencing And Punishment 294
An assistant Commonwealth attorney is not a "state employee" within the meaning of KRS 61.878(3) since he is exempted from the classified service by KRS 18A.115(w) and is not governed by KRS Ch 18A. OAG 92-112.
The workforce development cabinet improperly denies a request for the employment application and resume of a public employee under KRS 61.878(1)(a). OAG 92-59.
A university properly denies a professor's request to inspect peer evaluation materials since the requesting party is not a state employee governed by KRS Ch 18A. OAG 91-128.
The labor cabinet acts improperly under KRS 61.878(3) in denying a request by a state employee to inspect preliminary worknotes prepared by such employee's supervisor and pertaining to such employee. OAG 87-50.
A public agency's denial of a request to inspect reports pertaining to the alleged child abuse of a requesting party's children is proper as the requesting party does not meet requirements as to persons or agencies with whom such reports may be shared. OAG 86-4.
An agency's denial of a request to inspect all the reports and materials that pertain to the requesting party and all relevant materials not otherwise specified was proper because blanket requests for information on a particular subject without a specification of the documents that are desired need not be honored. OAG 85-107.
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 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.
Although the Oldham County Judge/Executive properly characterized her letter to a congressman relating to Oldham County's Domestic Violence Unit as a preliminary memorandum or recommendation, within the meaning of KRS 61.878(1)(j), the requester is entitled to inspect the otherwise preliminary record because he is a public agency employee to whom the record relates within the meaning of KRS 61.878(3). 05-ORD-181 (8-24-2005)
Lexington Fayette Urban County Government's partial denial of a request for records relating to a pay equity study and the point system for compensation was only partly consistent with the requirements of the Open Records Act, since as a public agency employee, the requester is entitled to a copy of and record relating to her, and the LFUCG should furnish her with the entry that pertains to her from the otherwise exempted record; LFUCG's response was also procedurally deficient in failing to notify the requester promptly that its search yielded no results. 04-ORD-108 (7-19-04).
The Cabinet for Health Services, Department for Public Health properly relied on KRS 218a.202(6) in denying a request for KASPER data in its Controlled Substances Monitoring System notwithstanding the fact that the requested data related to the requester. 03-ORD-227 (11-3-03)
A state university's denial of a former employee access to records relating to his employment is not justified under KRS 61.878(3) as the requirement mandating public employee access to any records relating to the employee is not invalidated because he is no longer employed by the university. 97-ORD-87 (6-3-97).
A school board member would be entitled to records of the school system which relate to a legitimate governmental purpose and the board member's public function; a board member who makes an open records request for copies of records may be charged a reasonable fee for the copies. 96-ORD-110 (5-14-96).
The human resources cabinet improperly relies upon KRS 61.878(1)(h) in denying an agency employee's request to inspect records relating to the employee as the exception applies only to administrative adjudications initiated by the employee. 95-ORD-97 (7-7-95).
Records requested on behalf of a public agency employee relating to an ongoing administrative investigation of which he is the subject are properly withheld by the human resources cabinet; although KRS 61.878(3) mandates release of records to a public agency employee when they relate to the employee, that provision excludes examinations and "documents relating to ongoing criminal or administrative investigations by an agency." 93-ORD-37 (3-25-93).
A university improperly withholds preliminary handwritten notes prepared by an affirmative action officer in an interview with the complaining professor who filed the open records request. 93-ORD-19 (2-23-93).
27. Government expenditures, budgets
Attorney General had statutory authority to conduct in camera inspection and review of records of Cabinet for Economic Development pertaining to incentive contract with corporation, even if documents were confidential for purposes of Open Records Act, where Attorney General sought documents for valid purpose of determining whether corporation broke incentive contract and if so whether corporation owed moneys to treasury. Strong v. Chandler (Ky. 2002) 70 S.W.3d 405. Attorney General 6; Records 66
The City of Hiseville did not meet its statutory burden of proof in denying a portion of a request to inspect records of the Cemetery Caretaker Committee where the requester has agreed to provide all manpower necessary to collect the information sought, eliminating much of the burden associated with production of the desired records; however, the city's denial of the second subpart of the request is affirmed in part because the legal issues it raises is currently before the Kentucky Court of Appeals in a case involving public access to donor records of the University of Louisville Foundation. 04-ORD-066 (4-23-2004).
Jefferson County Public Schools improperly relied on KRS 61.878(1)(a) in redacting personal telephone numbers called on cell phones assigned to a high school principal where the record demonstrates widespread personal use of a public cell phone on public time, and an attempt to avoid reimbursing JCPS for calls made on the cell phone by characterizing them as school business calls. 04-ORD-065 (4-22-2004).
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). 03-ORD-214 (10-14-03).
To the extent that tapes of city council meetings are made at the direction of the council and are purchased with city funds, they are public records and must be made available for inspection. OAG 92-111.
The Owensboro riverport authority acts inconsistently with the Open Records Act in withholding from inspection invoices it submitted to its lessee for services rendered; such invoices are not exempt from disclosure under either the privacy or the trade secret exemption. OAG 91-70.
The finance and administration cabinet's records of payments made to attorneys for service as guardians ad litem in juvenile court are not exempt from the Open Records Act as juvenile court records. OAG 90-62.
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.
Pricing proposals submitted by vendors in response to a request by the lottery corporation for proposals that contain end price quotations, not "costing and pricing strategy" information, for major categories of a public procurement, do not contain information of a "trade secret" character; thus, inspection of records containing such information must be allowed when all proposals have been rejected or when the contract is awarded. (See also OAG 89-44.) OAG 89-43.
Public agencies incorrectly withhold from public inspection, pursuant to KRS 61.878(1)(a) and 61.878(1)(c), the list of names of persons who stayed at various hotels at state expense, and the list of names of persons who attended pre- and post-Kentucky Derby parties at the governor's mansion. OAG 88-62.
A university's refusal to release the names of donors and potential donors on whose behalf the university expended money in connection with fund-raising efforts is supported by the privacy exception to public inspection, since the university has already released the actual amounts of money spent. OAG 86-76.
Orders of the treasurer, which are not actual bills received by the school system but are documents prepared by the treasurer primarily for internal use relative to a school board's bill approval process, retain a preliminary characterization which permits a school system to deny public inspection until such time as a school board formally considers such orders and adopts and incorporates as its course of action and final decision the terms, conditions, and recommendations contained in the orders. OAG 86-42.
A public agency's denial of a request to inspect records involved in an ongoing competitive negotiation process was correct. OAG 85-68.
Current and past city budgets are open to public inspection. Current budgets, although "working" budgets, are indicative of final action. Past budgets are closed and lose any "preliminary" quality through their finality. Budget ordinances are likewise open as indicative of final action. Agreements under the Interlocal Cooperation Act are also open, as they constitute final action by the city. OAG 84-217.
As long as no final action has been taken by the department of corrections at the Kentucky State Reformatory, purchase orders or recommendations to purchase motors for the exhaust system in the geriatrics unit are exempt from public inspection as preliminary recommendations in which opinions or policies are expressed. OAG 83-313.
A county judge/executive does not have to make available for public inspection a draft copy of the proposed budget which has been circulated among the members of the fiscal court. OAG 83-166.
The detailed line-item budget of a school district is a public record and is not exempt from the open records law. OAG 76-551.
28. Procedural issues
Affected consumer's ability to intervene in public hearing on allegedly excessive health insurance rates does not altogether foreclose protection of some information submitted in setting process from unlimited disclosure to public, including regulated entity's competitors; hearing provision did not abolish exceptions from disclosure under Open Records Act. Southeastern United Medigroup, Inc. v. Hughes (Ky. 1997) 952 S.W.2d 195.
Under provision of Open Records Act pursuant to which circuit court has jurisdiction to enforce provisions of Act by injunction or other appropriate order on application of any person, employees of board of education had standing to challenge board's release of personnel records upon request of newspaper on grounds that records contained personal information whose release would constitute unwarranted invasion of personal privacy, notwithstanding contention by newspaper that provision only provided remedy for denial of access. Beckham v. Board of Educ. of Jefferson County (Ky. 1994) 873 S.W.2d 575. Records 63
KRS 61.878 contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof, and given the privacy interest on one hand and on the other, the general rule of inspection and its underlying policy of openness for the public good, the only available mode of decision is by comparative weighing of the antagonistic interests. Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co. (Ky. 1992) 826 S.W.2d 324.
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).
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.
29. Student records
A school system has a duty to release an investigative report, involving disciplinary action taken against a student, to his parent, under the federal Buckley Amendment. OAG 91-177.
A school district acts improperly in denying a request of the public advocacy department to inspect material pertaining to an internal investigation conducted by school authorities regarding disciplinary proceedings involving a student. OAG 91-22.
A school system may refuse to disclose the home addresses of students but may not withhold the names of students attending the school; a list of names should be furnished if available or the school system should prepare such a list or let the requesting party prepare a list from school system records. OAG 88-50.
Public agency's denial of the request to inspect records of a former student, now deceased, including that student's applications for admission and scholastic transcripts, where no parental consent has been obtained, was proper under the Open Records Act and applicable state and federal statutes pertaining to the confidentiality of such records. OAG 85-140.
A student has the right to inspect records relating to him, but if the records contain non-exempted material (such as other students' names, disclosure of which involves an invasion of privacy under KRS 61.878(1)(a)), then that material must be separated from that to which access is allowed. OAG 83-427.
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)
Kentucky State University properly relied on KRS 61.878(1)(k), incorporating 20 USC #1232g(b)(1) (the family Education Rights and Privacy Act) in denying a request for student disciplinary records maintained by the office of Student Affairs; such records are protected education records and not unprotected law enforcement records for purposes of FERPA notwithstanding the fact that some of the records originated with the University's police department. 02-ORD-201 (9-16-03).
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. 02-ORD-61 (3-21-02).
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. 00-ORD-119 (6-8-00).
A public school may properly deny an open records request for response cards submitted by parents of children who had requested that their children be transferred to another school under the Family Education Rights and Privacy Act. 99-ORD-73 (5-10-99).
An agency properly denies a request to inspect a child's enrollment application in the head start program, since the Buckley Amendment, incorporated into the Open Records Act by KRS 61.878(1)(j), prohibits release of an education record to a third party absent a parent's prior written consent even though the third party believes himself to be the child's natural father. 92-ORD-1640 (12-10-92).
61.880 Denial of inspection; role of Attorney General
(1) If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
(2) (a) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
(b) In unusual circumstances, the Attorney General may extend the twenty (20) day time limit by sending written notice to the complaining party and a copy to the denying agency, setting forth the reasons for the extension, and the day on which a decision is expected to be issued, which shall not exceed an additional thirty (30) work days, excepting Saturdays, Sundays, and legal holidays. As used in this section, "unusual circumstances" means, but only to the extent reasonably necessary to the proper resolution of an appeal:
1. The need to obtain additional documentation from the agency or a copy of the records involved;
2. The need to conduct extensive research on issues of first impression; or
3. An unmanageable increase in the number of appeals received by the Attorney General.
(c) On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(3) Each agency shall notify the Attorney General of any actions filed against that agency in Circuit Court regarding the enforcement of KRS 61.870 to 61.884. The Attorney General shall not, however, be named as a party in any Circuit Court actions regarding the enforcement of KRS 61.870 to 61.884, nor shall he have any duty to defend his decision in Circuit Court or any subsequent proceedings.
(4) If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
(5) (a) A party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882.
(b) If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
HISTORY: 1994 c 262, § 6, eff. 7-15-94; 1992 c 163, § 6, eff. 7-14-92; 1976 c 273, § 6
NOTES OF DECISIONS AND OPINIONS
Notification of agency decision 1
Denial of inspection 2
Denial of inspection - In general 2a
Denial of inspection - Specific exceptions; applicability of exceptions 2b
Documents open to inspection 3
Documents not open to inspection 4
Availability and timely inspection of records 5
Attorney general duties 6
Procedural issues 7
Constitutional issues 8
1. Notification of agency decision
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-4-ORD-090 (6-22-2004).
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. OAG-04-ORD-088 (6-17-2004).
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).
The University of Louisville violated KRS 61.880(1) in failing to respond to a request for statistical compilations relating to female breast cancer incidence rates by zip code; although the University was actuated by its commitment to strictly observe the privilege for information codified at KRS 214.556(6), its reliance on that provision, incorporated into the Open Records Act by KRS 61.878(1)(l) was misplaced, since the statistical compilation sought would not enable the public to readily identify persons whose condition or treatment has been reported to the Kentucky Cancer Registry. OAG-04-ORD-077 (5-25-2004).
A city that fails to assert adequate grounds for temporarily denying requester access to certain records in its custody violates the provisions of the Open Records Act. OAG 96-ORD-12 (1-17-96).
A public agency violates the Open Records Act to the extent that it fails to notify the attorney general pursuant to KRS 61.880(3) that actions relative to the enforcement of the Open Records Act have been filed against the agency in circuit court. OAG 95-ORD-59 (4-6-95).
The lottery corporation violates the Open Records Act in responding to requests for various records relating to employees and contracts by failing to explain how the information is proprietary and therefore failing to meet its statutory burden of proof. OAG 95-ORD-27 (2-27-95).
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).
The state police properly respond to a request for employee disciplinary actions, employment applications, duty assignments, background investigations, and evaluation reports by releasing such records with appropriate exclusions pursuant to KRS 61.878(1)(a), 61.878(1)(g), and 61.878(1)(h). OAG 92-85.
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.
A public agency must respond to a request for inspection of records within three days. OAG 91-178.
A circuit court clerk must respond to a request to inspect records either by providing access to the requested records or by providing a statement of the specific statutory exception authorizing the withholding of the records and a brief explanation of how the exception applies to the records withheld. OAG 90-99.
A public agency must respond to a request to inspect certain records, even if the response only indicates that the requested records do not exist. OAG 90-74.
A public agency acts in accordance with KRS 61.880(1) by responding in a timely manner, by citing statutory exceptions to the public inspection requirement, and by giving brief explanations as to how such exceptions apply to the records withheld. (See also OAG 89-86; OAG 89-88.) OAG 89-96.
The labor cabinet acts consistently with open records provisions in KRS 61.880 by promptly responding in writing to a request to inspect certain of its records and by citing KRS 61.878(1)(f), the statutory exemption, for a file under submission by the compliance officer and not completed, in that action to be taken had not been finally determined, and advising that when the file is completed, copies of releasable material will be sent. OAG 89-80.
While information derived from the property tax rolls may not be used for commercial or business purposes unrelated to property valuation or assessment, such ban does not apply to information obtained from other types of records of the property valuation administrator's office, and the property valuation administrator fails to act consistently with open records provisions by not making a written response, in keeping with KRS 61.880, to a request to inspect records of his office; request for information, as distinguished from records, and requests that particular methods of inquiry into public records be provided, are outside the scope of the open records provisions. OAG 89-77.
A county human rights commission fails to act consistently with provisions of KRS 61.870 to 61.884 where it fails to make a response to a request to inspect certain of its records in accordance with KRS 61.880. (See also OAG 89-72.) OAG 89-71.
A public agency is required to notify the requesting party of its decision in writing within three days. OAG 89-68.
A public agency violates KRS 61.880(1) by refusing to respond in writing to a request to inspect public records within the statutorily mandated time period. (See also OAG 89-59; OAG 89-63.) OAG 89-67.
The pendency of litigation does not suspend application of the independent statutory requirement that a response be made to a request to inspect records held by a public agency, but the Open Records Act should not be used as a substitute for discovery where litigation is involved. OAG 89-65.
A school board acts consistently with the Open Records Act when it promptly responds to a request and truthfully answers that no records exist regarding an executive session review of a complaint that a police officer used profanity in a classroom. OAG 89-32.
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's response to a request to inspect documents does not conform to the requirements of KRS 61-880(1) where it is overly broad, does not identify the specific documents withheld from inspection, and makes no attempt to identify what particular documents the requesting party sought to inspect. OAG 88-53.
A public agency violates KRS 61.880(1) by refusing to respond in writing to a request to inspect public records within the statutorily mandated time period. OAG 88-22.
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.
Where a public agency does not provide a party requesting public inspection of records with an adequate written response to such request as required by KRS 61.880(1) and 61.880(2), it will be ordered to do so. OAG 88-6.
A public agency violates KRS 61.880(1) by its insufficient response to a requesting party's original letter and its failure to respond at all to three subsequent letters, and it should immediately advise the requesting party in writing whether he may inspect the records in question and, if the request is denied, the statutorily authorized exceptions to public inspection which are relied on must be set forth. OAG 87-83.
A school system's response to and rejection of a request to inspect must be communicated to the requesting party in writing within three working days of receipt of the request. OAG 87-77.
A public agency violates the Open Records Act by its refusal to respond in writing to a request to inspect public records. OAG 87-60.
A sheriff's denial of a request to make available documents setting forth salaries of himself and his deputies where he did not advise the requesting party within the required time of a specific reason why the records could not be inspected is improper. OAG 86-75.
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.
While a public agency should have responded in writing to a requesting party's letter pertaining to a request for copies of documents, a public agency is not required to send copies of records to a requesting party by mail, when the requesting party has not first inspected the items to be copied, particularly when numerous documents are involved. OAG 86-24.
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.
A public agency's failure to state in writing its reason for refusing to permit a requesting party to inspect documents and the agency's failure to send a copy of the letter of denial to the attorney general's office were violations of the open records law. Also, the agency's denial of a request to inspect certificates required by KRS 161.020 to be filed with the board of education was improper; however, that information, if any, on the certificates that is of a personal nature, such as social security numbers, home addresses, and telephone numbers need not be released. OAG 85-109.
A public agency is required to notify the requesting party of its decision in writing within three days. OAG 85-47.
2. Denial of inspection
2A. In general
Eastern Kentucky University did not comply with procedural requirements and the Open Records Act in disposition of a records request, as EKU's partial denial of the request for parking citation appeals on the basis of 20 U.S.C. sec. 1232g was proper, but the invocation of attorney client privilege without sufficient proof that the records qualified for protection was improper. 05-ORD-136 (6-30-2005).
The Crittenden County Board of Education violated the Open Records Act in denying a request for investigative records relating to the Superintendent's removal for alleged sexual improprieties, and her subsequent employment by the Jefferson County Public Schools, on the basis that the Superintendent requested that the records remain confidential and, alternatively, that the records were discussed in a closed session, and the Board should take immediate measures to rectify the violation. 05-ORD-046 (3-24-05).
By failing to respond to the request by a licensee for a copy of his file and related documentation, the Kentucky Board of Medical Licensure violated KRS 61.880(1); although the requester previously received some or all of the requested records during the course of related litigation, that fact does not relieve the Board of its duty under the Open Records Act to provide the requester with copies of any records in its possession which are responsive to the request at issue. 04-ORD-220 (11-22-04).
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).
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 Hiseville did not meet its statutory burden of proof in denying a portion of a request to inspect records of the Cemetery Caretaker Committee where the requester has agreed to provide all manpower necessary to collect the information sought, eliminating much of the burden associated with production of the desired records; however, the city's denial of the second subpart of the request is affirmed in part because the legal issues it raises is currently before the Kentucky Court of Appeals in a case involving public access to donor records of the University of Louisville Foundation. OAG-04-ORD-066 (4-23-2004).
Actions of the Earlington Police Department and Pennyrile Narcotics Task Force violated provisions of the Open Records Act relative to a request for records relating to the identity of an unknown officer at a precisely identified road check. OAG 04-ORD-050 (3-26-04).
Kenton County Fiscal Court failed to meet its statutorily assigned burden of proof in denying a request for records relating to the dismissal of the Director of Kenton County Animal Control. OAG 04-ORD-031 (2-13-04).
Although the Attorney General makes no finding relative to the Laurel County Sheriff's Department's compliance with procedural requirements of the Open Records Act, due to ambiguities in the record on appeal, the AG finds that the Department violated the Act in failing to address each of the applicant's requests for records and erroneously equating the disclosure made in criminal discovery with access to public records under ORA. OAG 03-ORD-213 (10-10-03).
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).
Although its denial was procedurally deficient, the Kentucky Athletic Commission properly relied on KRS 61.878(1)(a) in redacting the height and weight of an applicant for licensure as a professional wrestler; because KRS 229.121 prohibits issuance of a license to a person under 18 years of age, the Commission improperly redacted the applicant's date of birth inasmuch as disclosure of this item of information serves an open records related public interest in regulation that outweighs the applicant's privacy interests. 03-ORD-080 (4-17-03).
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).
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).
Correspondence from or to a contractor under a public contract on issues relating to the administration of that contract can not be properly characterized as correspondence with a private individual, and such correspondence becomes an open record upon issuance. OAG 00-ORD-98 (4-13-00).
A correctional complex properly denied inmate's open records request for his FBI rap sheet where both state and federal statutes prohibit such disclosure, a correctional complex's failure to enumerate the specific sections authorizing nondisclosure procedurally deficient. OAG 97-ORD-178 (11-26-97).
A circuit court clerk properly denies a request for jury lists from 1986 through 1991 by advising the requesting party that the lists have been destroyed. OAG 93-ORD-122 (10-25-93).
The question of whether a public agency properly denies a request to inspect records becomes moot when the agency subsequently releases the records for inspection. OAG 91-140.
A public agency properly treats a request to inspect a record as moot where the document described does not exist. OAG 91-138.
A public agency may not deny inspection or copying of its denial of an open records request. OAG 91-130.
A public agency properly treats a request to inspect a record as moot where the document described does not exist. OAG 91-112.
A public agency is not estopped from denying a copy of a public record which has been inadvertently released for inspection. (See also OAG 90-107.) OAG 90-117.
A public agency that has custody or control of public records that are requested pursuant to the Open Records Act does not meet its obligations thereunder by referring the requesting party to another public agency for the records. OAG 90-71.
A city acts inconsistently with the open records law in responding to a request to inspect records regarding settlement of an action against the city by indicating that the city manager possessed only one document, without addressing records within the scope of the request that were or may have been possessed by the city generally; records setting forth amounts paid or payable in such settlement are subject to public inspection. OAG 90-36.
The purpose of the person requesting to inspect public records has no bearing on whether the public agency should grant or deny the request, and thus the transportation cabinet cannot deny a request to inspect records because information from those documents may or will be used in some future legal action, as such a denial is a violation of the Open Records Act, as is the agency's improper handling of requests submitted to it by its failure to respond timely and in the proper manner, and its reliance upon an exception to inspection requiring support by clear and convincing evidence which is not produced. OAG 89-79.
A county human rights commission's failure to provide copies of certain records after it indicated that it would do so is a denial of the right to inspection, and thus the agency does not act consistently with the provisions of KRS 61.870 to 61.874. OAG 89-70.
The attorney general will defer ruling on the correctness of a university's denial of a newspaper's request to inspect the NCAA "Supplemental Official Inquiry" where inspection of the same record is the subject of a lawsuit pending in a circuit court concerning the denial of another newspaper's request to inspect the same record. OAG 88-78.
The unemployment division improperly denies a request to inspect records pertaining to the names of specific persons who have filed claims for benefits under the provisions of the unemployment insurance program. OAG 88-68.
A public agency properly denies a request to inspect and copy monthly and annual reports submitted to the central state government from one of its agencies in the field, and requests to inspect various management reviews of a field agency, providing the documents in question neither indicate final agency action nor are incorporated into a final agency report. OAG 86-64.
A public agency's denial of a request to inspect and copy those records relative to salary figures of police department personnel is improper; however, a denial of a request to inspect a police department's operations manual is supported by KRS 61.878(1)(h), as it is an intra-agency document setting forth policies and recommendations. OAG 86-38.
A public agency's denial of a request to inspect documents is proper where the documents consist of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda including intra-office memoranda, and other documents not representing final action of the agency. OAG 86-32.
A public agency acts improperly when it deletes from records made available for public inspection all the telephone numbers called from designated state telephone numbers when such numbers appear on the K.A.T.S. printouts of telephone calls, and although there may be situations where the exceptions to public inspection apply, a public agency cannot, under a blanket application of the privacy exemption of the Open Records Act, refuse to release these telephone numbers. OAG 86-21.
A public agency's denial of a request to inspect the employment contract between the district health department and the executive director of that department violated the Open Records Act. Every public agency should make every attempt to comply with the letter and spirit of the Open Records Act. OAG 85-85.
A public agency failed to act in accordance with KRS 61.880(1) when it neither made the requested records available for inspection nor advised the requesting party of a specific reason why the records could not be inspected. OAG 85-71.
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.
The bureau for social services properly denied the office of public advocacy's request to inspect an investigative report on an alleged child abuse case when the request was not for a governmental purpose. OAG 83-48.
2B. Specific exceptions; applicability of exceptions
Provision of Kentucky Open Records Act directing agency action where custodian of records believes that records are not subject to disclosure requires that custodian provide particular and detailed information in response to request for documents. Edmondson v. Alig (Ky.App. 1996) 926 S.W.2d 856. Records 62
Response by county attorney to letter which sought disclosure of documents of which county was custodian under Kentucky Open Records Act which stated only that information sought was exempt and gave statutory citation did not even remotely comply with requirement under Act that custodian provide particular and detailed information, much less amount to substantial compliance. Edmondson v. Alig (Ky.App. 1996) 926 S.W.2d 856. Records 62
The attorney-client privilege cannot be used to close an otherwise public meeting unless the attorney-client discussions relate directly to proposed or pending litigation. OAG 97-001.
A denial of an inspection request issued by a corrections officer is legally insufficient where it is not issued within three days, does not cite an exception authorizing nondisclosure or explain how the exception applies to the records withheld, and is not issued by the custodian of records or copied to the attorney general. OAG 92-109.
A public agency acts inconsistently with the open records law in failing to briefly explain how statutory exceptions cited as a basis for denying inspection of public records apply to such records. (See also OAG 90-34.) OAG 90-35.
A public agency acts inconsistently with the Open Records Act in failing to provide a brief explanation of how exceptions cited in denying inspection applied to the records so withheld from inspection. (See also OAG 90-16; OAG 90-15.) OAG 90-1.
A public agency fails to act in accordance with KRS 61.880(1) by not citing the specific exception upon which it relied to deny inspection. OAG 89-95.
A public agency acts in accordance with KRS 61.880 by citing statutory exceptions to the public inspection requirement and by giving brief explanations as to how such exceptions apply to the records withheld. OAG 89-64.
The human resources cabinet violates KRS 61.880 by denying inspection of affirmative action plans of the employment services department without adequate explanation. OAG 89-60.
A school system may refuse to disclose the home addresses of students but may not withhold the names of students attending the school; a list of names should be furnished if available or the school system should prepare such a list or let the requesting party prepare a list from school system records. OAG 88-50.
Where a public agency fails to respond in writing to a requesting party and fails to advise that requested records are available for inspection and that there is a specific exception to public inspection, the agency does not act in accordance with KRS 61.880(1). OAG 86-86.
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.
KRS 61.880(1) requires that a public agency denying a request to inspect its records shall include a statement of the specific exception under the open records law authorizing the withholding of the record and a brief explanation as to how the exception applies to the record withheld. OAG 84-376.
Louisville Metro Planning and Design Services improperly relied on KRS 61.878(1)(i) and (j) in denying a request for "preapplication" zoning materials; Metro Planning's reliance on KRS 61.8781)(d) is similarly misplaced in the absence of specific proof supporting the invocation of the exception. 05-ORD-179 (8-19-2005).
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).
The University of Louisville properly relied on KRS 61.878(1)(a) in withholding the names of private donors, but not the amounts donated; the University did not meet its burden of proving personal privacy interests in the corporate donations of sufficient weight to overcome the public's interest in disclosures of the identities of the two corporate donors that requested anonymity, for the purpose of monitoring the University to assess how its decisions may be influenced by the corporate funding. 05-ORD-104 (6-1-2005).
The Winchester Police Department did not meet its statutory burden of proof in applying a policy of blanket nondisclosure of criminal complaints filed on a certain day, including all information on page two of the uniform offense report on the basis of KRS 61.878(1)(a) and (h), by failing to identify the specific exceptions to public inspection upon which it relied in partially denying the newspaper's request and by failing to explain the application of those exceptions to the records withheld. 05-ORD-003 (1-10-05).
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).
Although the Transportation Cabinet violated KRS 61.880(1) by initially failing to cite the applicable exceptions, the Cabinet ultimately satisfied its burden of proof relative to the requested files and handwritten notes by invoking KRS 91.878(1)(i) and (j), and adequately explaining how those exceptions apply to the records withheld; with respect to the "older files" still at issue, the requester failed to frame his request with "reasonable particularity" so as to enable the Cabinet to identify and locate any responsive records and therefore the Cabinet properly denied his request for those records. 04-ORD-193 (10-20-04).
The Covington Police Department improperly relied on KRS 61.878(1)(a) and the Health Insurance Portability and Accountability Act in partially denying The Kentucky Enquirer's requests for specifically identified accident and incident reports by redacting all personal information and not citing the specific exception authorizing nondisclosure of the record or portion thereof, as the Police Department is not a covered entity for purposes of HIPAA analysis, and its records generated in discharging its duty to protect public safety do not contain protected health information" and are therefore not governed by the Privacy Rule; however, there was no violation in the redaction of addresses and dates of birth from the records, since the purpose of the disclosure policy is to serve the public interest, not to satisfy the public's curiosity. 04-ORD-143 (8-24-04).
The Kentucky Commerce Cabinet violated the Kentucky Open Records Act in denying a request for hard copies of the final presentations made by six advertising companies in response to a request for proposal issued by the Cabinet in conjunction with other state cabinets for an advertising/research agency to consolidate services across cabinet lines and develop a brand" for the Commonwealth, as the requested records do not constitute preliminary drafts, notes, or correspondence with private individuals", and this exception does not extend to all writings from individuals to a government agency; in addition, the Cabinet merely parroted the language of the statutory exception without giving any explanation of how the cited exception applies to the requested records as required by KRS 61.880(1), and therefore the Cabinet must provide the requester with the requested copies in accordance with KRS 61.874(1). 04-ORD-125 (8-6-04).
Lexington Fayette Urban County Government's partial denial of a request for records relating to a pay equity study and the point system for compensation was only partly consistent with the requirements of the Open Records Act, since as a public agency employee, the requester is entitled to a copy of and record relating to her, and the LFUCG should furnish her with the entry that pertains to her from the otherwise exempted record; LFUCG's response was also procedurally deficient in failing to notify the requester promptly that its search yielded no results. 04-ORD-108 (7-19-04).
The Commerce Cabinet's reliance on KRS 61.878(1)(h) was partially misplaced where the record on appeal demonstrated that much of the information contained in a park ranger incident report, relating to the death of a visitor to a state park, had already been made known to the public through news accounts, and the Cabinet did not otherwise describe the harm that would flow from premature disclosure; therefore, the Commerce Cabinet must release pages one and three of the report and the accompanying written statement filed by the park employee who discovered the victim's body, but may withhold page two and the second written statement accompanying the report, since it identifies witness and contains information that might be used in a prospective law enforcement action. 04-ORD-104 (7-13-04).
The University of Louisville properly relied on KRS 61.878(1)(a) and 61.878(1)(k), incorporating 20 U.S.C. Section 1232g, in denying a request for anonymous handwritten student surveys of a graduate English program insofar as the surveys constituted educational records and the students' handwriting made the record "easily traceable" within the meaning of federal legislation. 04-ORD-052 (3-31-2004).
By invoking KRS 61.878(1)(h) and establishing that the requested records related to an open investigation, the Kentucky State Police met the burden imposed by KRS 17.150(3) in conjunction with KRS 61.878(1)(h) to justify its denial of the subject request to inspect investigatory records with specificity. Although a public agency cannot indefinitely postpone access to investigative records by labeling the investigation open, the Attorney General has consistently recognized that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive or finally closed." Once the investigation is completed or a determination not to prosecute has been made, however, the records in question will be subject to public inspection pursuant to KRS 17.150(2) unless excluded from application of the Open Records Act by another statutory exception. 04-ORD-041 (3-2-04).
Because the Administrative Office of the Courts is part and parcel of the judicial department of the state, its records are not subject to statutory regulation; the AOC therefore did not violate the Open Records Act in denying a request for records relating to construction of judicial facilities. 04-ORD-037 (2-24-04).
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). 03-ORD-214 (10-14-03).
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 public school may properly deny an open records request for response cards submitted by parents of children who had requested that their children be transferred to another school under the Family Education Rights and Privacy Act. OAG 99-ORD-73 (5-10-99).
A county board of education properly denies a request for pass/fail information on school bus driver drug tests where disclosure of this information is prohibited under the federal department of transportation and highway administration's Omnibus Employee Drug Testing Act. OAG 97-ORD-002 (1-8-97).
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).
Kentuckiana regional planning and development agency (KIPDA) offered no proof, beyond a bare allegation, that the disputed records were generally recognized as confidential or proprietary, and that the disclosure would result in competitive harm to the private entity submitting them. OAG 96-ORD-135 (6-12-96).
A request for post-decisional memoranda relating to job classification plan are subject to disclosure under the open records law; in order to fall within the "deliberative process" exception, a document must be antecedent to adoption of agency policy and must be related to the process by which policies and formulated. OAG 94-ORD-89 (7-19-94).
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).
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).
An internal affairs investigation report is not subject to the Open Records Law where the police chief does not incorporate the findings of the report into the disciplinary action. OAG 01-ORD-83 (5-3-01).
3. Documents open to inspection
Because the requested records contained "personal information", the Transportation Cabinet did not violate the Open Records Act in making the disclosure of Medical Review Board records concerning an individual's driving record contingent upon receipt of her written consent; 18 U.S.C. sec. 2721-2725, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), in requiring the requester to verify that he is authorized to receive the records, and any less would constitute a violation of 18 U.S.C. sec. 2721(b)(13). 05-ORD-131 (6-28-2005).
Where records requested are of a limited class, to wit personnel records, and are identified by name, the request is sufficiently specific and the agency must discharge its KRS 61.880(1) duties; overruling OAG 88-53 and succeeding opinions/decisions establishing a high standard of specificity for requests for personnel files (and by extension inmate folders). 03-ORD-012 (1-14-03).
The city of Louisville improperly denies a request for travel expense records of a city attorney who attends a seminar on the grounds that the records were shielded from disclosure by the attorney/client privilege and the work product doctrine. OAG 95-ORD-18 (2-21-95).
The transportation cabinet may not deny a request for records compiled for safety enhancement at railroad crossings under 23 USC 403 where the requester does not intend to use the records in a civil action for damages. OAG 94-ORD-124 (10-25-94).
A public agency may not deny inspection or copying of its denial of an open records request. OAG 91-130.
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.
The general bond of a sheriff, and entries in regard to it, are public records subject to inspection without a court order, and a clerk failing to respond to a request to inspect such records fails to act consistently with the Open Records Act. OAG 89-47.
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 public agency's denial of a request to inspect and copy those records relative to salary figures of police department personnel is improper; however, a denial of a request to inspect a police department's operations manual is supported by KRS 61.878(1)(h), as it is an intra-agency document setting forth policies and recommendations. OAG 86-38.
A public agency acts improperly when it deletes from records made available for public inspection all the telephone numbers called from designated state telephone numbers when such numbers appear on the K.A.T.S. printouts of telephone calls, and although there may be situations where the exceptions to public inspection apply, a public agency cannot, under a blanket application of the privacy exemption of the Open Records Act, refuse to release these telephone numbers. OAG 86-21.
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.
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.
Death certificates are not exempt from public inspection under the open records law. OAG 81-400.
Inspection of records of a housing agency cannot be denied or delayed pending clearance by HUD. OAG 81-4.
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.
4. Documents not open to inspection
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 proprietary 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).
A public agency properly denies a request to inspect and copy monthly and annual reports submitted to the central state government from one of its agencies in the field, and requests to inspect various management reviews of a field agency, providing the documents in question neither indicate final agency action nor are incorporated into a final agency report. OAG 86-64.
A public agency may adopt a records and documents policy pertaining to the names of persons involved in a summer youth employment program for low income persons that prohibits the release of the names of program applicants and participants. OAG 86-62.
Orders of the treasurer, which are not actual bills received by the school system but are documents prepared by the treasurer primarily for internal use relative to a school board's bill approval process, retain a preliminary characterization which permits a school system to deny public inspection until such time as a school board formally considers such orders and adopts and incorporates as its course of action and final decision the terms, conditions, and recommendations contained in the orders. OAG 86-42.
A public agency's denial of a request to inspect and copy those records relative to salary figures of police department personnel is improper; however, a denial of a request to inspect a police department's operations manual is supported by KRS 61.878(1)(h), as it is an intra-agency document setting forth policies and recommendations. OAG 86-38.
A public agency's denial of a request to inspect documents is proper where the documents consist of preliminary notes (whether handwritten or typed), preliminary drafts of letters, reports and other documents, preliminary memoranda including intra-office memoranda, and other documents not representing final action of the agency. OAG 86-32.
It is proper for a school system to refuse to allow a child's parents to inspect a copyrighted examination given to that child when the exam is expected to be used again. OAG 86-2.
A public agency's denial of a request to inspect a designated trade secret, materials relative to a proposed Union Carbide PCB removal plant, was proper under the confidentiality provision of KRS 224.035. OAG 86-1.
"Correspondence with a private individual" which is not "intended to give notice of final action of a public agency," such as a letter from the president of a company with whom the state has executed a contract, is not open to public inspection without a court order; the language of KRS 61.878 is clear and controlling, and this opinion is appealable pursuant to KRS 61.880. OAG 85-148.
Since the facts and materials supplied subsequent to the rendering of OAG 85-136 indicate that the board of trustees has not yet made a final determination relative to the charges and complaints filed against the fire district's fire chief, such charges and complaints need not be made available for public inspection at this time. OAG 85-144.
The bureau for social services properly denied the office of public advocacy's request to inspect an investigative report on an alleged child abuse case when the request was not for a governmental purpose. OAG 83-48.
Information concerning the identity of parents against whom the Commonwealth has a claim for recovery of support payments is made confidential by statute, and a request for such information by the public must be denied. OAG 82-539.
A college professor does not have a right to review the letters from other members of the faculty evaluating him. OAG 82-204.
Charges for which a state trooper is punished are subject to public inspection after the action has been taken. OAG 78-133.
Personnel files contain material of a personal nature where the public disclosure thereof would constitute an invasion of personal privacy; thus the evaluation of a teacher's performance is a matter of opinion and a teacher is entitled to have this information withheld from the public; therefore, a teacher has no more right than the public to inspect an evaluation under the open records law. OAG 77-394.
School board meetings considering the appointment of a new superintendent should be open to the public. OAG 77-69.
A criminal trespass list compiled and maintained by the housing authority of Louisville must be disclosed, the antagonistic interests of the public's interest in knowing whether its agencies are properly executing their statutory function outweighs the individual's interest in nondisclosure of records containing their names, since a person's name is the least private thing about them and should only be withheld when there is a special reason provided by statute or court order. OAG 02-ORD-159 (9-3-02).
Records of the administrative office of the courts are not public records within the meaning of KRS 61.870(2), however, these records by statute and case law are placed under the exclusive jurisdiction of the court and disputes concerning access must be resolved by the court. OAG 02-ORD-24 (2-07-02).
5. Availability and timely inspection of records
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 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).
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).
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.
An agency response to a party requesting inspection of records must advise the requesting party whether the documents exist. OAG 91-101.
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.
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.
A school system may refuse to disclose the home addresses of students but may not withhold the names of students attending the school; a list of names should be furnished if available or the school system should prepare such a list or let the requesting party prepare a list from school system records. OAG 88-50.
The director of a public agency did not comply with the open records law (KRS 61.880) when, within the time specified, he neither made the records available for inspection nor advised the requesting party in writing of a specific reason why the records could not be inspected. OAG 85-43.
A police department violates the Open Records Act when it fails to respond to records requests where a virus destroys departmental records, the department has a duty to conduct a search for hard copies or records maintained in a back-up system; the police department must timely notify the Kentucky department for libraries and archives, by submission of a destruction certificate, when such records are destroyed. OAG 02-ORD-149 (8-21-02).
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. OAG 02-ORD-144 (8-8-02).
A school system's response placed in mail on the third day, where the postmark and delivery not intentionally delayed but a mere failure to insure that the mail picked up by post office on same day not constituting a subversion of the intent of the act. OAG 02-ORD-094 (5-16-02).
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).
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).
A school council subverts the intent of the Open Records Act by providing copies of requested records on computer disk where the requesting party does not own a computer and is not skilled in the use of computers, and is thus effectively denied access to the records; the council must either provide copies in paper form or arrange for the requesting party to use its computer to review the records. OAG 93-ORD-46 (4-19-93).
6. Attorney general duties
The open records statutes do not provide that records offered for inspection must show information that perhaps should be shown upon such records in accordance with KRS 132.530, or that is called for by the terms of a particular record form, and the open records provisions also do not empower the attorney general to order an agency to provide information or prepare records that contain such information. OAG 89-66.
Under the Open Records Act, the attorney general deals with an actual denial of a specific request by an agency, not with hypothetical or abstract questions or situations, and the handling of release forms relative to employee interview statements is beyond the scope of an opinion. OAG 86-57.
The attorney general's office does not have the duty or the authority to conduct an investigation where there has been no denial of a request to inspect public records but rather where the requested items apparently do not exist. OAG 86-35.
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 percent 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.
The attorney general is not authorized to entertain a third-party claim that disclosure of public records is prohibited by statutory exemption. OAG 96-ORD-148 (7-1-96).
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).
7. Procedural issues
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).
With the exception of a procedural violation, the Cabinet, a hybrid entity under HIPAA, has fully complied with governing state and federal law in responding to the requests for copies of "any and all complaints" made by a named individual or others related to the treatment of a specific patient while at Kindred Hospital in Louisville, KY; Adult Protective Services properly conditioned release of the requested records upon completion of a HIPAA complaint form, and the Office of the Inspector General properly denied access on the basis of 45 CFR sec. 164.512(c) in conjunction with KRS 61.878(1)(a),(k) and (l) and KRS 194a.060(l). 05-ORD-054 (3-30-05).
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).
An inmate's appeal of the department of corrections' denial of his request that is not initiated within twenty business days of denial, as required by KRS 197.025(3), is time barred. OAG 02-ORD-54 (3-14-02).
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).
Issues relating to enforcement of an attorney general's open records decision are not properly justiciable in a subsequent appeal to the attorney general. OAG 95-ORD-19 (2-21-95).
An appeal from a denial of public inspection of records filed by an inmate at a correctional facility is not ripe for review by the attorney general, where the denial was not issued by the custodian of records and must, therefore, be treated as a nullity. OAG 92-51.
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.
When a request for inspection of records is denied by the transportation cabinet, the requesting party appeals such denial, and then changes his request while the appeal is pending, the attorney general will remand the appeal to the cabinet for consideration of the amended request. OAG 90-110.
8. 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. 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. 96-ORD-168 (7-31-96).
61.882 Jurisdiction of Circuit Court in action seeking right of inspection; burden of proof; costs; attorney fees
(1) The Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884, by injunction or other appropriate order on application of any person.
(2) A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court.
(3) In an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the court shall determine the matter de novo. In an original action or an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency. The court on its own motion, or on motion of either of the parties, may view the records in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
(4) Except as otherwise provided by law or rule of court, proceedings arising under this section take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date.
(5) Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reas