FOREWORD

Open Records.

The Kentucky General Assembly enacted the Kentucky Open Records Act ("ORA") in 1976 — and it has not stopped tinkering with the Act since then. In response to business concerns and new technologies, the legislature substantially revised the ORA in 1986, 1992, and again in 1994.

The 1994 revisions are extensive and worth noting. Up until this time, electronically stored records were available, if at all, under the Public Access to Governmental Databases Act, Ky. Rev. Stat. 61.960 et seq. Under the Databases Act, a public agency was able to deny a request for electronic records if the records were requested for a commercial purpose. See 95-ORD-43; 95-ORD-12.

In 1994, the General Assembly scrapped this separate treatment by stretching the ORA to encompass electronic records. Unless specifically authorized by another statute, a public agency cannot deny a request for electronic records — or any other record — merely because it may be used for commercial purposes. See 61.874(4); 95-ORD-9.

The 1994 merger of the Databases Act and the ORA is good news for persons seeking access to electronic records, but it brings some bad news for persons seeking access to other records. The ORA now permits agencies to charge different fees for all records, regardless of format, depending on whether the proposed use is commercial or noncommercial. See Ky. Rev. Stat. 61.874(4).

If the records are to be used for commercial purposes, the requesters may be forced to pay the agency not only for the cost of duplication, but also for the staff time incurred in gathering the records and/or the agency's expense in creating or acquiring the records. Id. Requesters using records for commercial purposes now face stiff penalties for the misuse of those records. See Ky. Rev. Stat. 61.8745.

While publication of public records by the media is not considered a commercial use, the media may be held liable if they obtain public records and then give their express permission for a commercial use of those records. See Ky. Rev. Stat. 61.870(4)(b), Ky. Rev. Stat. 61.874(5)(c).

For the media, the most important part of the 1994 amendments to the ORA is the legislature's recognition that the State Archives and Records Act, which deals with records management and retention by public agencies, is inextricably linked with the ORA:

The General Assembly finds an essential relationship between the intent of this chapter and that of [Ky. Rev. Stat.] 171.410 to 171.740, dealing with the management of public records, and of [Ky. Rev. Stat.] 61.940 to 61.957, 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.

Ky. Rev. Stat. 61.8715.

Based on this declaration, the Kentucky Attorney General has recognized that public agencies have an obligation to establish a maintenance and retrieval scheme for their public records and that failure to do so violates the ORA: "Subversion of the intent of the Archives and Records Act thus constitutes subversion of the intent of the Open Records Act." 94-ORD-121. Consequently, the Attorney General now applies "a higher standard of review relative to denials based on the nonexistence" or destruction of requested records. 94-ORD-142. Under this standard, "the loss or destruction of a public record creates a rebuttable presumption of records mismanagement." 95-ORD-96. "In order to satisfy its statutory burden of proof, a public agency must, at a minimum, document what efforts were made to locate the missing records." 94-ORD-142.

Open Meetings.

The Open Meetings Act ("OMA") is two years older than the ORA, but has generated far fewer court decisions and Attorney General opinions than has the ORA. This might reflect the fact that most government business is conducted behind closed doors, or that aside from the media, few members of the public are interested in regularly attending public meetings.

There are many similarities between the OMA and the ORA: 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 (ORA), Ky. Rev. Stat. 61.800 (OMA).

· Both provide a citizen the option of asking the Attorney General to review the agency's action or of immediately instituting a court action. See Ky. Rev. Stat. 61.800 (ORA); Ky. Rev. Stat. 61.846 (OMA).

· Both provide numerous exemptions to the mandate of openness. See 61.878 (ORA); 61.810 (OMA).

There are also some significant differences. The ORA's definition of a "public agency" encompasses private agencies which receive significant government funding. See Ky. Rev. Stat. 61.870(1)(h). The OMA has no such provision. Cf. Ky. Rev. Stat. 61.805(2). The OMA only gives the attorney general ten days to review a complaint. Ky. Rev. Stat. 61.846(2). The ORA permits the Attorney General an initial twenty days to review a complaint, and also permits the Attorney General to obtain an additional thirty-day extension. See Ky. Rev. Stat. 61.880(2).

Finally, there are some apparent inconsistencies between the two acts. For example, the OMA permits meetings of the Kentucky Parole Board to be held behind closed doors. Ky. Rev. Stat. 61.810(1)(a). Under the ORA, the records of the parole board are not explicitly exempted from disclosure. See Ky. Rev. Stat. 61.878. Likewise, under the ORA the minutes from a public agency's meeting are public records and presumptively open to disclosure — regardless of whether that meeting was closed under the OMA. Although the attorney general has tried to reconcile these inconsistencies, it is odd that the General Assembly has not tried to do the same.

Despite their many flaws, the ORA and the OMA have been very useful to both the media and the general public in gaining access to public records and meetings. Unfortunately, the passage of time has not erased all hostility to these acts. Many officials are still prone to charge excessive fees for records and to erroneously characterize records or meetings as exempt.

The Kentucky Press Association and Dinsmore & Shohl, LLP help reporters enforce the ORA and OMA by offering the Freedom of Information Hotline, (502) 540-2300.