The Kentucky General Assembly enacted the Kentucky Open Records Act (Ky. Rev. Stat. 61.870 – 61.884) in 1976. The legislature substantially revised the Act in 1986, 1992, and again in 1994, and has made various other modifications since then, including the addition of exemptions to both Acts in 2018. Limits on who can request records, additional requirements for requestors and agencies, and limits on what records can be inspected and copied were also added in the 2021 Legislative Session.
Kentucky’s Open Meetings Act was enacted in 1974. Like the Open Records Act, Kentucky’s General Assembly has revised the Open Meetings Act several times since then.
There are many similarities between the Open Records Act and the Open Meetings Act: Both contain explicit statements favoring public access. See Ky. Rev. Stat. 61.871 ("free and open examination of public records is in the public interest"); Ky. Rev. Stat. 61.800 ("formation of public policy is public business and shall not be conducted in secret"). Both state that exceptions to public access shall be "strictly construed." See Ky. Rev. Stat. 61.871 (Open Records Act), Ky. Rev. Stat. 61.800 (Open Meetings Act).
Both provide the option of asking the Attorney General to review the public agency's action or of immediately instituting a court action. See Ky. Rev. Stat. 61.800 (Records); Ky. Rev. Stat. 61.846 (Meetings). Both also define “public agency” broadly. See Ky. Rev. Stat. 61.870 (Records); 61.805 (Meetings). Both Acts also contain numerous exemptions to the mandate of openness. See Ky. Rev. Stat. 61.878 (Records); 61.810 (Meetings).
There are also some key differences. The Open Records Act's definition of a "public agency" encompasses private companies which receive significant government funding under certain circumstances. See Ky. Rev. Stat. 61.870(1)(h). The Open Meetings Act has no such provision. Cf. Ky. Rev. Stat. 61.805(2). The Open Meetings Act only gives the Attorney General ten business days to review a complaint. Ky. Rev. Stat. 61.846(2). The Open Records Act permits the Attorney General an initial twenty business days to review a complaint, and also permits the Attorney General to obtain an extension up to an additional thirty business days. See Ky. Rev. Stat. 61.880(2).
Kentucky’s Open Records Act is codified at Ky. Rev. Stat. 61.870 to 61.884.
The basic policy of Kentucky’s Open Records Act is that “free and open examination of public records is in the public interest and the exceptions … provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.” Ky. Rev. Stat. 61.871.
Under Kentucky’s Open Records Act, "[a]ll public records shall be open for inspection by any resident of the Commonwealth, except as otherwise provided . . . and suitable facilities shall be made available by each public agency for the exercise of this right." Ky. Rev. Stat. 61.872(1).
Kentucky law defines “person” to include “bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships, joint stock companies, and limited liability companies.” Ky. Rev. Stat. 446.010(33).
Kentucky residents have an enforceable right to use the Open Records Act. Nonresidents may request and be granted records, but their requests are not enforceable. Ky. Rev. Stat. 61.872(1) & (3). A Kentucky “resident” is defined as an individual residing in Kentucky, a domestic business with a location in Kentucky (or an out-of-state business registered with the Secretary of State), a person who works in Kentucky, a person or business that owns real property within Kentucky, a person or business authorized to act on behalf of a Kentucky resident, or a news-gathering organization. Ky. Rev. Stat. 61.870(10). Kentucky law imposes various limitations on records requests submitted by incarcerated individuals. See Ky. Rev. Stat. 197.025.
The requester may be required to disclose whether he will use the records for a "commercial purpose" and, if so, may be charged a higher fee. See Ky. Rev. Stat. 61.874(4). "Publication or related use of a public record by a newspaper or periodical" and "[u]se of a public record by a radio or television station in its news or other informational programs" is not a "commercial purpose." Ky. Rev. Stat. 61.870(4)(b). Use of a public record in the preparation for litigation or claims settlement is also not a “commercial purpose.” Ky. Rev. Stat. 61.870(4)(b).
If the requester intends to use the records for a commercial purpose and is required by the public agency to certify that commercial purpose, the requester must use the records only in the manner he or she has disclosed. Similarly, a requester may not request the records for a noncommercial purpose and then permit the records to be used for a commercial purpose. See Ky. Rev. Stat. 61.874(5). Otherwise, there is no restriction on subsequent use. See 95-ORD-77 (public agency cannot direct requester to refrain from reproducing records released to her).
The definition of commercial purpose is very broad, but excludes most uses of information by the news media:
"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.
"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.
Ky. Rev. Stat. 61.870(4).
Although the agency may require a requester to state whether he or she intends to use the records for a commercial purpose, the agency cannot make a person intending to use records for a noncommercial purpose state his or her exact purpose. 02-ORD-89.
Any individual or business entity that has been authorized to act on behalf of a resident of Kentucky can request records on that resident’s behalf. Ky. Rev. Stat. 61.870(10)(f).
Every public agency is subject to the act. The term "public agency" is broadly defined to include governmental agencies and private agencies that receive significant funding from the government:
(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, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection;
(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.
Ky. Rev. Stat. 61.870(1).
Kentucky’s Open Records Act defines “public agency” to include, among others, “[e]very state or local government officer,” and “[e]very state or local government department, division, bureau, board, commission, and authority.” Thus, the Act applies to records of all executive branch officers and agencies. See, e.g., Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995) (applying the Act to records of the governor).
The General Assembly is not exempt from the Open Records Act. "The General Assembly did not exclude itself from the Open Records Act, but made the Act binding upon itself by defining the term public agency to include 'any body created by state or local authority in any branch of government.'" 98-ORD-92 (citing Ky. Rev. Stat. 61.870(1)(g)). "Every state or local legislative board" is a public agency under the Open Records Act. Ky. Rev. Stat. 61.870(1)(c). Unlike other public agencies, however, the General Assembly’s Legislative Research Commission (instead of the Attorney General) reviews appeals of open records denials by the legislature. See Ky. Rev. Stat. 7.119(3).
Despite their inclusion in the Open Records Act, Kentucky courts have held they are not subject to the Open Records Act. Ex parte Farley, 570 S.W.2d 617 (Ky. 1978). The logic of this holding rests on the Kentucky Constitution's separation of powers: "[T]he custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." Id. at 624; see also 93-ORD-122 (discussing courts and the Open Records Act). The holding has been extended to the other agencies of the Kentucky Court of Justice such as Circuit Clerks and the Administrative Office of the Courts. Separate and apart from Kentucky’s Open Records Act, the Kentucky Court of Justice has promulgated an Open Records Policy, which provides a mechanism for the public to request administrative records of the judicial branch. More information on the policy is on the Court of Justice website at https://courts.ky.gov/Pages/open-records-request.aspx.
There are several ways in which a nongovernmental body may qualify as a “public agency” subject to Kentucky’s Open Records Act.
Nongovernmental organizations that receive substantial funds from the government may qualify under Ky. Rev. Stat. 61.870(1)(h), which includes in the definition of “public agency,”
Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection.
An agency that receives only a portion of its funding from state or local authority funds, pursuant to Ky. Rev. Stat. 61.870(1)(h), will solely disclose records pertaining to the "functions, activities, programs or operations funded by state or local authority." Ky. Rev. Stat. 61.870(2).
A nongovernmental entity may also qualify as a “public agency” if a majority of its governing body is appointed by a public agency or if it is created, established, and controlled by a public agency. See Ky. Rev. Stat. 61.870(1)(i) and (j).
An interagency body of two or more public agencies where each is defined as a public agency under the Open Records Act is collectively a public agency. See Ky. Rev. Stat. 61.870(k).
The Act, Attorney General opinions, and reported court decisions do not address multistate or regional bodies.
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency established, created, and controlled are defined as public agencies and therefore subject to the Act. See Ky. Rev. Stat. 61.870(1)(j). Also, entities with governing bodies a majority of which are appointed by a public agency are public agencies. Ky. Rev. Stat. 61.870(i). However, committees of hospital medical staffs are not defined as public agencies and are not covered by the Act. Id.
"Every county and city governing body, council, school district board, special district board and municipal corporation" is a public agency under the Kentucky Open Records Act. Ky. Rev. Stat. 61.870(d).
"Every state or local government agency, including the policymaking board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution or other legislative act" is a public agency under the Kentucky Open Records Act. Ky. Rev. Stat. 61.870(f).
Kentucky’s Open Records Act defines “public record” broadly to include virtually every document (including electronic record) of a public agency. See Ky. Rev. Stat. 61.870(2).
The definition of "public records" covers virtually every record, paper or electronic or otherwise, owned or controlled by a public agency. If an entity is considered a "public agency" solely because it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds," Ky. Rev. Stat. 61.870(1)(h), then only the records that relate to the operations funded by the government are considered "public" records. The statute defines “[p]ublic record” as:
[A]ll 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.
Ky. Rev. Stat. 61.870(2).
All forms of public records are covered. See Ky. Rev. Stat. 61.870(2). Agencies may provide records in either hard copy or electronic formats, depending on the preference of the requester:
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 copies 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.
Ky. Rev. Stat. 61.874(2)(a); see also 95-ORD-12 (requester has right to choose either hard or electronic format if agency has both available).
There is no limitation on copying records after inspection: "Upon inspection, the applicant shall have the right to make abstracts of public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of [Ky. Rev. Stat.] 61.878." Ky. Rev. Stat. 61.874(1).
Telephone call logs are subject to the Kentucky Open Records Act. See 03-ORD-165.
Since 1994, the Kentucky Open Records Act has treated all public records similarly, regardless of their format. A requester is entitled to obtain a hard copy of a public record or an electronic file if available. Ky. Rev. Stat. 61.874(2)(a). As with all public records in Kentucky, a requester intending to use the information for commercial purposes may face a higher fee. Ky. Rev. Stat. 61.874(4)(b)—(c).
Electronic mail generated by public agency officials or employees is a public record as defined under the Kentucky Open Records Act § 61.870(2).
Computer software is exempted from disclosure if it constitutes “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.” Ky. Rev. Stat. 61.870(3)(b).
There are different fee limits depending on whether the public record is to be used for a commercial or noncommercial purpose. Generally, the fee for a noncommercial purpose is limited to the costs of duplication, not including the agency's staff time. Fees for commercial purposes may include other costs, including staff time:
(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.
(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 requester stating the commercial purpose for which they shall be used, and may require the requester 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 records or records;
2. Cost to the public agency of the creation, purchase or other acquisition of the public records.
Ky. Rev. Stat. 61.874.
The Attorney General has held that public agencies may not charge sales tax for copies. "Providing copies of nonexempt public records is not a sale of the records. There is no provision in the Open Records Act that authorizes an agency to charge a sales tax for copies of public records provided pursuant to an open records request." 98-ORD-88.
Public agencies are limited to charging a "reasonable fee" for making copies of public records. Ky. Rev. Stat. 61.874(3). For a noncommercial use, the only permissible fee is "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." Id.
In an administrative regulation adopted long before the 1994 amendments, the Finance and Administration Cabinet stated that "all state administrative agencies" were limited to charging "ten (10) cents a page for each record." 200 KAR 1:020 § 3(1).
For a commercial use, the fee must also be "reasonable," but the public agency is permitted to charge for staff time and/or the cost of acquiring the records:
The fee provided for in subsection (a) of this section may be based on one or both of the following:
Ky. Rev. Stat. 61.874(4)(c).
If there is no cost to a public agency in providing a record for inspection, the agency may not charge any fee, regardless of whether the requester has a commercial purpose. See 94-ORD-145.
County clerks are authorized to charge up to $.50 (fifty cents) per page for copies of public records. See Ky. Rev. Stat. 64.019.
Agencies may not charge for the labor or time incurred in searching for records when those records have been requested for a noncommercial use; search charges are permitted for commercial uses.
Duplication costs are limited to the actual costs of reproduction. In Friend v. Rees, 696 S.W.2d 325 (Ky. Ct. App. 1985), 10 cents per page was found to be a reasonable charge for reproduction. See also 200 KAR 1:020 § 3(1) (directing state agencies to charge 10 cents per page for copies).
Agencies may not charge for redactions made for reporters. Commonwealth v. Courier Journal, 601 S.W.3d 501 (Ky. Ct. App. 2020).
An agency cannot charge a fee for copies and postage when it provides hard copies to a requester in lieu of providing onsite inspection via computer access as requested. The requester should be allowed to view the hard copies onsite. 00-ORD-8.
Computer access, printouts. Requesters seeking online computer access may be required to sign contracts or licensing agreements with the public agency and to pay fees for the access. The exact fee depends on whether the requester intends to use the public records for noncommercial or commercial uses:
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.
Ky. Rev. Stat. 61.874(6).
Computer printouts are treated the same as hard copies of any other public record.
Microfiche. Treated as any other public record.
Non-print audio and audio-visual records. Treated as any other public record.
There is no provision for waiving fees. See 94-ORD-90 (finding reporter not entitled to waiver of fees for copying records).
Public agencies may demand advance payment for providing copies: "When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate." Ky. Rev. Stat. 61.874(1). An administrative regulation directs state agencies to produce copies "on payment" of the fee. See 200 KAR 1:020 § 3(1).
Aside from any individual agency internal policy, the Kentucky Attorney General and the Circuit Courts enforce the Kentucky Open Records Act via an appeals process that becomes available when an agency denies a records request or the public agency circumvents the purpose of the Act. See Ky. Rev. Stat. 61.880, 61.882.
The Open Records Act provides obligations upon public agencies and the “official custodians” of public agencies’ records. See Ky. Rev. Stat. 61.870(5).
State agencies post certain contracts, budgets, salary and other information on Kentucky’s “Transparency” website, https://transparency.ky.gov.
Records retention schedules for state and local agencies are established by the Kentucky State Archives and Records Commission and published by the Department of Libraries and Archives. The schedules can be found at http://kdla.ky.gov/records/recretentionschedules/Pages/stateschedules.aspx.
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 . . . shall be sustained by clear and convincing evidence. Ky. Rev. Stat. 61.872(6).
The exemptions to Kentucky’s Open Records Act are set forth at Ky. Rev. Stat. 61.878(1).
Certain records are excluded from the Kentucky Open Records Act’s mandate of disclosure and may only be viewed pursuant to court order. If, however, a public record contains both exempt and non-exempt material, a public agency must omit the exempted information from the record and provide a redacted copy of the nonexempt material. Ky. Rev. Stat. 61.878(4).
No exemption in the section can be construed to prevent the disclosure of statistical information not descriptive of any readily identifiable person. Ky. Rev. Stat. 61.878(2).
The exemptions in Ky. Rev. Stat. 61.878(1) are specific. The exemptions are also discretionary in nature: "[T]he exceptions to the Open Records Law are permissive rather than mandatory." 94-ORD-120.
Some similarities exist between the Kentucky Open Records Act and the Freedom of Information Act ("FOIA"), and Kentucky courts and the Attorney General often look to the FOIA for guidance when state law is scarce. See, e.g., 94-ORD-108 (looking to cases interpreting "the federal analogue to Ky. Rev. Stat. 61.878(1)(i) which is found at 5 U.S.C. § 552(b)(5)").
The Kentucky Open Records Act’s exemptions were modified and renumbered when the Act was amended in 1992 and again in 1994. Judicial opinions and Attorney General opinions issued prior to these dates cite to the pre-amendment numbering of the exemptions.
Ky. Rev. Stat. 61.878(1): "The following public records are excluded from the application of [Ky. Rev. Stat.] 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:"
This limitation does not prevent a non-party from using the Open Records Act to obtain public records relating to litigation involving a public agency. Department of Corrections v. Courier-Journal & Louisville Times Co., 914 S.W.2d 349 (Ky. Ct. App. 1996); see also 95-ORD-18 (discussing limitation). In Dept. of Revenue v. Wyrick, the Kentucky Supreme Court further clarified that this limitation does not prevent even a party to a lawsuit from obtaining records that are open to others. 323 S.W.3d 710, at 714 (Ky. 2010). Rather, the court held the limitation “is an explanation of a court’s authority to order inspection of documents otherwise exempted from disclosure under Ky. Rev. Stat. 61.878(1)(a)-(n). It is not an exception to an agency’s duty to disclose nonexempted records.” Id. (emphasis in original).
Ky. Rev. Stat. 61.878(1)(a): "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
Kentucky courts apply a two-step balancing test when weighing whether disclosure constitutes a clearly unwarranted invasion of privacy. First, the information must be of a personal nature. If so, second,
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute 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. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327-28 (Ky. 1992).
The Kentucky Supreme Court applied this test in Cape Publ’ns., Inc. v. Univ. of Louisville Found., when it held that the names of donors to a university foundation were open, except for the donors who had specifically requested anonymity and who believed, at the time of the gift, that the donation was being made to a private entity. 260 S.W.3d 818, 824 (Ky. 2008). There, the court said:
“When weighed against the public’s interest in the source of Foundation funds – and ultimately, University funds – we conclude that the anonymous donors’ interest in privacy are superior in this instance.”
The court went on to say that future donors’ names would not be closed to the public, because the court’s opinion had put donors on notice that they were giving their money to a public institution. Id.
In applying the balancing test, the courts have given greater weight to the privacy interests of private individuals and low-level public employees than to those of high-level public officials and employees. This is because courts view the Open Records Act as being designed to monitor the activities of government, and not of private individuals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however 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.
Zink v. Kentucky Dept. of Workers' Claims, 902 S.W.2d 825, 829 (Ky. Ct. App. 1994).
In Zink, the court refused an attorney's request to examine injury reports submitted to the Kentucky Department of Workers' Claims. The court found this would constitute an unwarranted invasion of privacy because the records were of private citizens and included their names, marital status, dates of birth, number of dependents, salaries, Social Security numbers, home addresses and telephone numbers. Id. at 827.
The court later distinguished Zink in Palmer v. Driggers, 60 S.W.3d 591, 598-99 (Ky. Ct. App. 2001), finding that a former Owensboro police officer's records revealing alleged misconduct in the form of an inappropriate relationship with another officer while on duty was in the public interest and therefore subject to disclosure. Id. The court held that the public had a legitimate interest in "knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct." Id.
Another example of the public interest tilting toward disclosure can be found in 98-ORD-45 ("we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant").
Similarly, the Attorney General has held that public officials' salaries are subject to disclosure. 99-ORD-209 ("The principle that the salary of a public servant is a matter of legitimate public interest, and records reflecting a public servant's salary must be made available for inspection, is as old as the Open Records Act itself"). See also 85-94; 86-38; 87-76; 88-13; 89-97; 93-ORD-144; 97-ORD-85; and 98-ORD-184.
With regard to settlement agreements, the exemption is not invoked by placing a confidentiality clause within the agreement. Central Kentucky News-Journal v. George, 306 S.W.3d 41, 45 (Ky. 2010); Lexington-Fayette Urban County Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469, 473 (Ky. 1997). In Lexington-Fayette Urban County Government, the Kentucky Supreme Court held that “settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize." 941 S.W.2d at 473. The Kentucky Supreme Court further clarified that point in Central Kentucky News-Journal, when it held that confidentiality clauses within such agreements do not make them exempt from disclosure under the personal privacy exemption to the Open Records Act. 306 S.W.3d at 45.
If the confidentiality clause contains a provision requiring the public agency to notify the affected party upon receipt of an open records request for the settlement agreement, the public agency must do so within the three business days with which it has to comply with the open records request. 98-ORD-24.
Ky. Rev. Stat. 61.878(1)(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;"
Ky. Rev. Stat. 61.878(1)(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;"
In a case of first impression, the Supreme Court determined that records of the Department of Insurance relating to health insurance rates and form filings are subject to the Open Records Act. Documents that constitute confidential or proprietary information, which would give a competitor an unfair advantage, however, are exempt from disclosure under this exception. Southeastern United Medigroup Inc. v. Hughes, 952 S.W.2d 195, 198-99 (Ky. 1997).
Audited financial records submitted by Marina Management Services ("MMS") to the Cabinet for Tourism are exempt from the Open Records Act. Marina Management Services Inc. v. Kentucky Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995). The records were submitted in connection with MMS's license agreement with the state to operate marinas in state parks; they included asset values, rental amounts on houseboats, profit margins, net earnings and capital income. Id. at 319; see also 92-66 (withholding audit of private hospital).
Ky. Rev. Stat. 61.878(1)(c)(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:
To successfully raise this exception an agency must establish that the records "1) are confidentially disclosed to the agency or required by the agency to be disclosed to it; 2) are generally recognized as confidential or proprietary; and 3) are compiled and maintained for the grant or review of a license to do business." 99-ORD-220.
Financial records that General Electric submitted to the Kentucky Industrial Revitalization Authority for investment tax credits are exempt from disclosure. Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766 (Ky. 1995). The 61.878(1)(c)(2) exemption is designed "to protect those companies which participate in the revitalization and development of industry in Kentucky." Id. at 769.
An application for a racing license does not satisfy the requirements for this exception. The agency may redact those portions of the application, however, which concern the "inner workings" of the business and are "generally recognized as confidential and proprietary." 99-ORD-220.
Similarly, the Attorney General found that a Hardin County Drug Task Force grant application must be released in part under the Act. The agency was not required to disclose, however, the "names of investigators; geographic target areas; types of targeted substances; and strategic plans of attack." 97-ORD-132.
A private agency's proposal to the state Department for Social Services concerning the use of refugee resettlement funds is not exempt: "We believe such records are of uniquely public interest, insofar as they substantiate that federal funds will be put to proper use, and cannot be characterized as confidential or proprietary." 93-ORD-43; see also 95-ORD-107 (stressing that exception only applies where records are confidential).
Ky. Rev. Stat. 61.878(1)(c)(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;"
Ky. Rev. Stat. 61.878(1)(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;"
Ky. Rev. Stat. 61.878(1)(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;"
Ky. Rev. Stat. 61.878(1)(f): "The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition or property, until such time as all of the property has been acquired. The law of eminent domain shall not be affected by this provision;"
This exception only applies to real property, and not to personal property. See 95-ORD-98 (holding records relating to the planned acquisition of computers cannot be withheld under this exception).
Ky. Rev. Stat. 61.878(1)(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;"
"Given the importance of the KIRIS exam as a tool for measuring the efficiency and improvement of [Kentucky's] schools, [the Court of Appeals held that] the KIRIS exam should not be open for general public viewing without a special showing of necessity beyond simple curiosity as to its content." Triplett v. Livingston County Board of Education, 967 S.W.2d 25, 34 (Ky. Ct. App. 1997).
Ky. Rev. Stat. 61.878(1)(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 [Ky. Rev. Stat.] 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 [Ky. Rev. Stat.] 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 [Ky. Rev. Stat.] 61.870 to 61.884;"
A convicted murderer may not obtain the Commonwealth Attorney's file while preparing a petition for habeas corpus: "[T]he defense of the prospective habeas corpus proceedings is a part of the 'law enforcement action' in the appellant's case." Skaggs v. Redford, 844 S.W.2d 389, 390 (Ky. 1992); see also 99-ORD-170.
Ky. Rev. Stat. 61.878(1)(i): "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;"
This exception and 61.878(1)(j) "are intended to insure the integrity of an agency's decision making process by protecting its pre-decisional documents." 93-ORD-37.
Correspondence means "communication by exchange of letters" and does not apply to "oral complaints or communications recorded on an audio tape." 94-ORD-133.
"Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as take a disciplinary action against a licensee, or enter into a government contract based on bids." 99-ORD-220.
The governor's daily schedule is a preliminary document exempt from disclosure: "We view the Governor's appointment schedule as nothing more than a draft of what may or may never take place; a notation for inter or intra office use, so the daily affairs of the chief executive can be conducted with some semblance of orderliness; and all of which should be free from media interference." Courier-Journal & Louisville Times Co. v. Jones, 895 S.W.2d 6, 10 (Ky. Ct. App.1995).
This section does not prevent the disclosure of a previous open records request and the agency's response to another requester. 92-ORD-1440.
Ky. Rev. Stat. 61.878(1)(j): "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
This exception "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations." Id. (citing 94-ORD-132, p.3); see also 90-97; 89-39; 88-85; 88-24; and 86-64.
This exception includes drafts, notes and outlines. A draft is defined as "a preliminary outline, plan or version." 97-ORD-183 (citing Webster II New Riverside University Dictionary 402 (1988)). The term “note” is defined as "a brief record, especially one written down to aid the memory." Id. (citing Webster at 804). An outline is "a tentative version, sketch or outline of a formal and final written product such as the draft report dealt with in 89-34, 93-ORD-125, and 94-ORD-38." Id.
While preliminary drafts, recommendations and memoranda are exempt under Ky. Rev. Stat. 61.878(1)(i) and Ky. Rev. Stat. 61.878(1)(j), those materials must be disclosed if the agency adopts them as part of its final action:
The public has a right to know what complaints have been made to a public agency once final action is taken. Once notes or recommendations are adopted by the public agency as part of its action the preliminary characterization of those notes or recommendations is lost. Such records would lose their exemption . . . and would become releasable . . . .
Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 956 (Ky. Ct. App. 1983); see also University of Kentucky v. Courier-Journal, 830 S.W.2d 373, 378 (Ky. 1992) ("[I]nvestigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action.").
Even though a memorandum may have been the final or last memorandum on a particular topic by a particular individual or department, it remains preliminary as long as the final decision maker does not incorporate that memorandum into his or her final action. For instance, a report by a police department's internal affairs department remains preliminary if the chief of police does not adopt its recommendations as part of the chief's final action — even though the report is the "final" report by the internal affairs department. See City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App. 1982); see also 94-ORD-132 (discussing the "dichotomy" between final department reports and final agency actions); 94-ORD-89 (finding a post-decisional memorandum to be preliminary).
An example of a preliminary document that lost its preliminary status is the annual evaluation of the director of the Jefferson County Health Department by the Health Board. See 94-ORD-120. The county judge had the choice of accepting the board's evaluation or formulating his own. When he chose to go with the board's evaluation, the evaluation lost its preliminary status and was no longer exempt from disclosure. Id.
In a second example, the Attorney General found that a use of force inquiry was no longer preliminary in nature "[b]ecause the Commissioner adopted the findings and recommendations of the investigating officer by affixing his signature to the report." 97-ORD-168.
Ky. Rev. Stat. 61.878(1)(k): "All public records or information the disclosure of which is prohibited by federal law or regulation;"
An example of a federal law prohibiting disclosure of information is The Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g. See 94-ORD-17 (finding Act, as incorporated by Open Records Act, prohibits disclosure of students' home addresses and telephone numbers). See also 98-ORD-1 (The Drivers' Privacy Protection Act, 18 U.S.C. § 2721 et seq. "prohibits the release and use of certain personal information from state motor vehicle records"); and 97-ORD-178 (a state correctional facility is prohibited from disclosing FBI Rap Sheets pursuant to 28 USC § 534); 05-ORD-128 (finding that pursuant to Ky. Rev. Stat. 61.878(k)(1) and by incorporation of 49 C.F.R. Part 24.9(b) federal regulation prohibits disclosure of information pertaining to financial data regarding the airport expansion program and a subsequent voluntary relocation program operated by the Louisville International Airport.)
Ky. Rev. Stat. 61.878(1)(l): "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
An example of a state law prohibiting disclosure under the Open Records Act is Ky. Rev. Stat. 610.320(3), which mandates confidentiality for law enforcement records regarding juveniles. See 93-ORD-42 (discussing Ky. Rev. Stat. 610.320(3) and the Open Records Act); see also 95-ORD-121 (discussing Ky. Rev. Stat. 197.025, which permits nondisclosure of some jail records); 94-ORD-97 (discussing Ky. Rev. Stat. 365.880, the Uniform Trade Secrets Act).
Ky. Rev. Stat. 61.878(1)(m): "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 terroristic act and limited to:
Ky. Rev. Stat. 61.878(1)(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.”
Ky. Rev. Stat. 61.878(1)(o): “Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:
Ky. Rev. Stat. 61.878(1)(p): “Communications of a purely personal nature unrelated to any governmental function.”
Ky. Rev. Stat. 61.878(1)(q): “[P]hotographs or videos that depict the death, killing, rape, or sexual assault of a person. However, such photographs or videos shall be made available by the public agency to the requesting party for viewing on the premises of the public agency, or a mutually agreed upon location, at the request of:
Police body camera footage is not covered by exemption Ky. Rev. Stat. 61.878(1)(q), and is instead governed by Ky. Rev. Stat. 61.168.
Various state statutes dealing with specific records make those records confidential. Ky. Rev. Stat. 61.878(1)(l) incorporates these into the Open Records Act.
Records protected by the attorney-client privilege have been held exempt from the Kentucky Open Records Act’s mandate of disclosure. See Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001).