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Kentucky

Open Courts Compendium

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Author

Jeremy S. Rogers
DINSMORE & SHOHL LLP
101 S. Fifth Street, Suite 2500
Louisville, Kentucky 40202
Telephone: (502) 540-2300
Fax: (502) 585-2207
jeremy.rogers@dinsmore.com
www.dinsmore.com

Last updated February 2018

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I. Introduction: Access rights in the jurisdiction

Kentucky law provides strong protection to the public’s right of access to court records and court proceedings.  The right in Kentucky is derived from several sources, including the First Amendment to the United States Constitution, the Kentucky Constitution, the common law, and court rules.  As a general matter, Kentucky law provides for the presumption of openness and places a high burden on those who argue for closure of court records or proceedings.

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A. The roots of access rights

Kentucky law recognizes both a constitutional and common law right to access court records and proceedings. Kentucky has a long tradition of ensuring free access to its court proceedings and court records.  In 1968, Kentucky’s highest court recognized the vital importance of open court proceedings by stating:

The principle that justice can not survive behind walls of silence is so deeply imbedded in our Anglo-American judicial system as to give our people in today’s modern society a deep distrust of secret trials.  One of the strongest demands of a democratic system is that the public should know what goes on in their courts.  This demand can only be met by permitting them to be present in person and by permitting the press who have the facilities to properly inform them to be present upon their behalf.

Johnson v. Simpson, 433 S.W.2d 644, 646 (Ky. 1968) (citations omitted).  Applying the “open courts” provision at Section 14 of Kentucky’s Constitution, the Kentucky Court of Appeals has held that “[t]he precept that courts shall be open embodies not only the idea that the courts shall be available to all citizens who seek redress for wrongs but that the courts shall be ‘public, open, no hiding place about them.’”  Ashland Publ’g Co. v. Asbury, 612 S.W.2d 749, 752 (Ky. Ct. App. 1980).

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B. Overcoming a presumption of openness

The presumption that the public should have access to court proceedings and records may be overcome if the party seeking closure satisfies a series of requirements set forth by the Kentucky Supreme Court.  Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky. 1983).  The party seeking closure must specifically identify a fundamental right that so outweighs the public’s constitutional and common law rights of access that “in no other way can justice be served” but by closure.  Lexington Herald-Leader Co. v. Tackett, 601 S.W.2d 905, 906 (Ky. 1980).  The party must prove that “the asserted right or interest probably cannot be adequately protected by less restrictive alternatives to closure” and that closure will actually protect the asserted right.  Meigs, 660 S.W.2d at 663.

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C. Procedural prerequisites to closure

Generally, there is a presumption of openness “for everything filed with the courts.”  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).  The burden to justify closure must be borne by those who seek to seal court records.  Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 661 (Ky. 1983) (citing Neb. Press Assn. v. Stuart, 427 U.S. 539, 558–59, 569–70 (1976)); see also Cline v. Spectrum Care Academy, Inc., 316 S.W.3d 320, 325-326 (Ky. Ct. App. 2010). There must be a hearing prior to closing a court proceeding or record.  Before closure, the “trial judge should consider the utility of other reasonable methods available to protect the rights of the [party] short of closure.”  Meigs, 660 S.W.2d at 661.  If the Court decides that closure is essential to protect the interest alleged by the party seeking closure, the Court must make specific written findings as to why closure is necessary.  Id.

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

When court records or court proceedings are closed from the public and the news media in a civil or criminal case, the Kentucky Supreme Court has held that news media entities have the “fundamental right” to intervene and to have “a hearing to decide whether the hearing should be closed or the record sealed from access to the public and the media.”  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 129 (Ky. 1988).  A special exception to the normal rules of standing applies to the news media in such cases, permitting news media entities to intervene and demand access even though a nonparty, and, if denied intervention or refused a hearing, to attack the decision in the appellate court by immediate use of a writ of prohibition or mandamus in the Court of Appeals.  Id. at 127–28.  Over more than a quarter century, the Kentucky Supreme Court has consistently reaffirmed the news media’s fundamental right to intervene for the purpose of seeking access on behalf of the public.  See Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011); Cent. Ky. News-Journal v. George, 306 S.W.3d 41, 44–45 (Ky. 2010); Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 847 (Ky. 2009); Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 728 (Ky. 2002).

The Kentucky Supreme Court has emphasized, however, that “[t]he only exception in our law for intervention by someone without an interest in the litigation is for news media attempting to examine court records.”  Bailey v. Bertram, 471 S.W.3d 687, 691–92 (Ky. 2015) (emphasis added).  However, Kentucky’s appellate courts have not provided any criteria or legal test for who may qualify as “news media” for purposes of standing to seek access.

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B. Procedure for requesting access in criminal cases

In Kentucky, the procedures for requesting access in civil cases are the same as in criminal cases. There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts.”  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).  All of Kentucky’s state court proceedings are video/audio recorded, and the recordings are generally available to the public at the court clerk’s office in the same manner that court records are available.  The video record is typically available within a few days after a court proceeding. Requests by the media to have cameras in the courtroom may generally be made informally to the presiding judge either orally or by letter.

Kentucky’s general rule is that news media entities do not have access to court records or court proceedings beyond those which are accessible to the general public.  However, a common law rule has made the news media an exception to the usual rules regarding standing to intervene in a case in order to seek access or oppose closure as well as standing to seek mandamus where access is denied.  In order to seek access to sealed court records or closed hearings, a news media entity ordinarily should file a motion to intervene for the limited purpose of seeking access.  This applies to both criminal and civil cases.  If the news media entity is denied intervention, refused a hearing, or denied access, the news media entity is permitted immediately to appeal the trial court’s decision to the Court of Appeals by writ of prohibition or mandamus.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 127–28 (Ky. 1988).  Further, a news media entity has the right to appeal a Court of Appeals decision in such a case to the Kentucky Supreme Court.  See Kentucky Rule Civ. P. 76.36(7).  This is in contrast with most Kentucky Court of Appeals decisions, where the Kentucky Supreme Court exercises discretion whether to hear the appeal.

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C. Procedure for requesting access in civil matters

In Kentucky, the procedures for requesting access in civil cases are the same as in criminal cases. There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts.”  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).  All of Kentucky’s state court proceedings are video/audio recorded, and the recordings are generally available to the public at the court clerk’s office in the same manner that court records are available.  The video record is typically available within a few days after a court proceeding. Requests by the media to have cameras in the courtroom may generally be made informally to the presiding judge either orally or by letter.

Kentucky’s general rule is that news media entities do not have access to court records or court proceedings beyond those which are accessible to the general public.  However, a common law rule has made the news media an exception to the usual rules regarding standing to intervene in a case in order to seek access or oppose closure as well as standing to seek mandamus where access is denied.  In order to seek access to sealed court records or closed hearings, a news media entity ordinarily should file a motion to intervene for the limited purpose of seeking access.  This applies to both criminal and civil cases.  If the news media entity is denied intervention, refused a hearing, or denied access, the news media entity is permitted immediately to appeal the trial court’s decision to the Court of Appeals by writ of prohibition or mandamus.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 127–28 (Ky. 1988).  Further, a news media entity has the right to appeal a Court of Appeals decision in such a case to the Kentucky Supreme Court.  See Kentucky Rule Civ. P. 76.36(7).  This is in contrast with most Kentucky Court of Appeals decisions, where the Kentucky Supreme Court exercises discretion whether to hear the appeal.

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D. Obtaining review of initial court decisions

In Kentucky, denial of access is reviewed by mandamus action, an original action in the Court of Appeals brought pursuant to Kentucky Rule of Civil Procedure 76.36.  The party pursuing the Court of Appeals review is the “petitioner.”  The action is pursued against the trial court judge, who is listed as the “respondent,” and all other parties whose interests may be affected are listed as “real parties in interest.”  See Ky. R. Civ. P. 76.36(1) & (8).

The Kentucky Supreme Court has held that, “[n]ews is news when it happens and the news media needs access while it is still news and not history.”  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 130 (Ky. 1988).  If denied intervention, refused a hearing, or denied access, a news entity is permitted immediately to appeal the trial court’s decision to the Court of Appeals by writ of prohibition or mandamus.  Peers, 747 S.W.2d at 127–28.  Kentucky’s civil rules also provide for expedited review in extraordinary cases.  Ky. R. Civ. P. 76.36(4).

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III. Access to criminal proceedings

In Kentucky, the rights of access and procedures for requesting access in criminal cases are the same as in civil cases.

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A. In general

There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts” in civil or criminal cases.  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).

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B. Pretrial proceedings

In Kentucky, the public right of access has been extended to include pre-trial criminal proceedings.  Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 752 (Ky. Ct. App. 1980).  The right also extends to jury selection.  Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky. 1983).  The right of access also applies to contempt hearings within criminal cases.  Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011).

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C. Criminal trials

In Kentucky, the right of access has been held to apply to virtually all aspects of a criminal trial. In Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905 (Ky. 1980), the Kentucky Supreme Court held that a trial court improperly closed a portion of a criminal trial in which several young boys testified about the defendant allegedly sodomizing them.  Where witnesses, “child and adult alike, will be greatly embarrassed and traumatized by testifying publicly . . . this embarrassment and trauma has not been deemed sufficient justification” for closure.  Tackett, 601 S.W.2d at 907.

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D. Post-trial proceedings

The right of access applies to post-trial proceedings in the same manner as pre-trial proceedings and trials.  Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011) (applying right of access to contempt hearing involving juror after conclusion of criminal trial).

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E. Appellate proceedings

There are no Kentucky cases dealing specifically with the right of access to appellate proceedings.  However, such proceedings are presumptively open to the public.

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IV. Access to criminal court records

There is a presumption that both criminal and civil court proceedings and records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts” in civil or criminal cases.  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).

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A. In general

Criminal court records are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

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B. Arrest records

In Kentucky, virtually all court records in criminal cases are open for public inspection.  Most jurisdictions within Kentucky do not require the filing of arrest records or other police records or criminal discovery materials prior to their being entered into evidence at trial or at some other pre-trial motion or evidentiary proceeding.  To the extent that such records are not within a court file, they may be requested from police departments, sheriff’s departments, county jails, or other public agencies under Kentucky’s Open Records Act, KRS 61.870, et seq.  However, Kentucky’s Open Records Act provides an exception to disclosure for records of law enforcement agencies compiled in the process of criminal investigation if the disclosure would harm the agency by revealing the identity of confidential informants or by premature release of information to be used in a prospective law enforcement action.  See KRS 61.878(1)(h).

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C. Dockets

Kentucky trial court dockets are generally open to the public and are available at the court clerk’s office in hard copy and on computer terminals.  Court dockets, in limited format, may also be accessed online at https://kcoj.kycourts.net/kyecourts/login/guestlogin.  Dockets of the Kentucky Court of Appeals and Kentucky Supreme Court are available on the Court of Justice website, http://courts.ky.gov/Pages/legal.aspx.

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In Kentucky’s state courts, warrants, returns on warrants, and copies of the complaint or affidavit pursuant to which warrants are issued are to be returned to the issuing court “within a reasonable time” of a warrant’s execution.  Ky. R. Crim. P. 2.12(1).  Returned warrants and accompanying materials are generally available to the public as court records.  Ky. R. Crim. P. 3.02(4).

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E. Discovery materials

Most jurisdictions within Kentucky do not require criminal discovery materials to be filed in the court record.  Further, in Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846 (Ky. 2009), the Kentucky Supreme Court held that the mere filing of criminal discovery in the court file (without any action or review by the judge) does not trigger the constitutional right of access but does trigger the common law right of access.

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F. Pretrial motions and records

All criminal court records are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

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G. Trial records

All criminal court records are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

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H. Post-trial records

All criminal court records are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

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I. Appellate records

All criminal court records are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); see also Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).  Criminal and civil appellate dockets are publicly available at https://courts.ky.gov/Pages/legal.aspx.

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J. Other criminal court records issues

Kentucky’s state trial courts are transitioning to electronic filing and electronic access to court records.  Electronic filing is not yet mandatory.  Attorneys in Kentucky who are registered to file electronically have access to the electronically-filed court records in Kentucky’s trial courts.  The general public does not (yet) have such access.  However, criminal dockets are available online at http://kcoj.kycourts.net/dockets.  Kentucky’s state court proceedings have all been recorded audio-visually (in lieu of court reporters making written transcripts) since the 1990s, and those video recordings are publicly available in the same manner as other court records.

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V. Access to civil proceedings

In Kentucky, the rights of access and procedures for requesting access in civil cases are the same as in criminal cases.

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A. In general

All civil court proceedings are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988).

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B. Pre-trial proceedings

In Kentucky, there is no recognized right of public access to deposition proceedings themselves.  However, many jurisdictions within Kentucky require, by local rule, deposition transcripts in civil cases to be filed with the clerk’s office in the official court record, which is publicly available.  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014); see also Ky. R. Civ. P. 30.06.

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C. Trials

Civil trials are presumptively open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988).

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D. Post-trial proceedings

Post-trial proceedings are open to the public.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988).

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E. Appellate proceedings

There are no Kentucky cases dealing specifically with the right of access to civil appellate proceedings.  However, such proceedings are presumptively open to the public.

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VI. Access to civil records

There is a presumption that both civil and criminal court records are open and accessible to the public and press, and this presumption generally applies to “everything filed with the courts.”  Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).

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A. In general

In Kentucky, the right of access to civil court records has been recognized under the common law, the First Amendment, and the Rules of Civil Procedure.  Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 732 (Ky. 2002); Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014).

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B. Dockets

Civil dockets in Kentucky state courts are open to public inspection at the clerk’s office both in the hard-copy files and on computer terminals.  Civil dockets are generally open to the public and are available at the court clerk’s office in hard copy and on computer terminals.  Court dockets, in limited format, may also be accessed online at http://kcoj.kycourts.net/dockets. Dockets of the Kentucky Court of Appeals and Kentucky Supreme Court are available on the Court of Justice website, http://courts.ky.gov/Pages/legal.aspx.

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C. Discovery materials

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D. Pre-trial motions and records

In Kentucky, the right of access to court records has been extended to include civil cases.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 128 (Ky. 1988).  Generally, court records (whether civil or criminal) cannot be closed without specific written findings by the trial court demonstrating that closure is justified.  Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 731 (Ky. 2002).  Kentucky’s common law right of access generally follows the rule announced in United States v. Amodeo, 71 F.3d 1044 (2nd Cir. 1995), that “the weight given to the presumption of access must be governed by the role of the material at issue in the exercise of . . . judicial power and the resultant value of such information to those monitoring the . . . courts.”  Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 732 (Ky. 2002) (citing Amodeo, 71 F.3d at 1079).  Under this sliding-scale approach, documents and records that play an important role in determining the litigants’ substantive rights are accorded the greatest weight and only “the most compelling reasons” can justify denying access to such documents.

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E. Trial records

Presumptively open.  Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 128 (Ky. 1988); Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 731 (Ky. 2002).

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F. Settlement records

Kentucky’s seminal case on access to court records, Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), involved a settlement agreement between county government and county officials and a former police officer who sued them.  The court held that “[t]hese circumstances weigh in favor of requiring the record to be open to public inspection.”  Id. at 130.  Similarly, in Lexington-Fayette Urban Cty. Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997), the Kentucky Supreme Court held that Kentucky’s Open Records Act required disclosure of a settlement agreement between a public agency and a private litigant despite the fact that the settlement agreement contained a confidentiality clause.  The Supreme Court reaffirmed that holding in Cent. Ky. News-Journal v. George, 306 S.W.3d 41 (Ky. 2010).

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G. Post-trial records

Presumptively open. See Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988); Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433, 439 (Ky. Ct. App. 2014) (“presumption of openness” applies to “everything filed with the courts”).

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H. Appellate records

No Kentucky cases deal specifically with appellate records.  However, they are presumptively open under the principles set forth in Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), and Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014).  Appellate dockets, along with limited appellate records, are publicly available online at https://courts.ky.gov/Pages/legal.aspx.

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I. Other civil court records issues

Kentucky state court proceedings are recorded by audio-visual means.  The audio-visual recordings can be copied and are subject to public access in the same manner as other court records.  Kentucky does not have electronic access to court records, but court dockets are generally open to the public and are available at the court clerk’s office in hard copy and on computer terminals.  Court dockets, in limited format, may also be accessed online at http://kcoj.kycourts.net/dockets.  Dockets of the Kentucky Court of Appeals and Kentucky Supreme Court are available on the Court of Justice website, http://courts.ky.gov/Pages/legal.aspx.

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VII. Jury and grand jury access

Generally, the proceedings and records of a grand jury are closed, while trial jury (petit jury) selection and records relating to jury selection are public. All jury deliberations are conducted in secret.

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A. Access to voir dire

The voir dire and impaneling of grand jurors and petit jurors in Kentucky’s trial courts are matters traditionally open to the public.  Kentucky Administrative Procedures of the Court of Justice, Part II, § 5(2) provides that “the names of jurors obtained from the randomized jury list shall be made available to the public”; and § 10(9) of the same rule provides that “the names of jurors selected as grand and petit jurors shall be made available to the public unless the Chief Circuit Judge, or his designee, determines that in the interest of justice, the names shall be kept confidential.”  The impaneling of grand juries in open court, with the names of the prospective grand jurors disclosed to the public, has long been a part of Kentucky criminal practice.  Head v. Commonwealth, 289 Ky. 39, 40 (1941); Kitchen v. Commonwealth, 275 Ky. 564, 570 (1938).

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B. Juror identities, questionnaires and other records

Kentucky Administrative Procedures of the Court of Justice, Part II, § 10(9) provides that “[t]he names of jurors selected as grand and petit jurors shall be made available to the public unless the Chief Circuit Judge, or his designee, determines that in the interest of justice, the names shall be kept confidential.”  However, § 13 of the same rule provides that “[t]he contents of any records or papers used by the clerk in connection with the selection process and not required to be made public under this chapter shall not be disclosed . . . .”  This includes jury questionnaires and similar jury records.

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C. Grand jury proceedings and records

Kentucky’s grand jury proceedings and records are generally “secret” under Ky. R. Crim. P. 5.24.

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D. Interviewing jurors

Kentucky law recognizes the right of the news media to contact and attempt to interview jurors as well as the right of jurors to refuse to speak with news media representatives.  Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823 (Ky. 2001).  A court order restricting the news media’s right to contact jurors constitutes a prior restraint on news gathering and can only be justified by “a compelling governmental interest” and must be “narrowly tailored to serve that interest.”  Id. at 826.

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VIII. Proceedings involving minors

Under Kentucky law, there are numerous types of court proceedings which could involve minors as parties, witnesses, or victims.  Public access to such proceedings and court records generally depends on the type of proceeding.

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A. Delinquency

In Kentucky, hearings and records in juvenile delinquency cases are presumptively closed.  See KRS 610.070 & KRS 610.340.  Under KRS 610.340(1)(a), a juvenile court may allow juvenile court records to be disclosed “for good cause.”

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B. Dependency

In Kentucky, hearings and records in juvenile dependency, abuse and neglect cases are presumptively closed.  See KRS 610.070 & KRS 610.340.  Under KRS 610.340(1)(a), a juvenile court may allow juvenile court records to be disclosed “for good cause.”

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C. Other proceedings involving minors

Adoption and paternity cases in Kentucky are presumptively closed.  See KRS 625.045.  Divorce cases are presumptively open.  However, child custody proceedings in divorce cases may be closed by the court upon a finding “that a public hearing may be detrimental to the child’s best interests.”  KRS 403.310(3).  Also, “[i]f the court finds it necessary to protect the child’s welfare that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the court may make an appropriate order sealing the record.”  KRS 403.310(4).

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D. Prohibitions on photographing or identifying juveniles

Kentucky law does not prohibit photographing or identifying juveniles generally.  However, most cases in juvenile court are presumptively closed to the public.  See KRS 610.070 & KRS 610.340.

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E. Minor testimony in non-juvenile courts

The Kentucky Supreme Court has held that an adult criminal trial should be open to the public, even during the testimony of minor victims of charged sexual crime.  Lexington Herald Leader Co. v. Tackett, 601 S.W. 2d 905 (Ky. 1980).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

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B. Probate

Probate proceedings are generally open to the public under the principles set forth in Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988), and Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014).

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C. Competency and commitment proceedings

In Kentucky, guardianship proceedings involving incompetent or disabled individuals are partially open.  For example, KRS 387.770 provides that determinations of disability and orders of appointment, modification, and termination are public court records and that all other court records are closed.  Section 3 of the statute allows a person to file a written motion for an order to disclose confidential information upon a showing that the disclosure is appropriate under the circumstances and in the best interest of the person or the public.

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D. Attorney and judicial discipline

In Kentucky, attorney disciplinary matters are confidential.  Kentucky Supreme Court Rule 3.150 provides that, in a discipline matter, prior to a rendition of a finding of a violation and the recommendation of the imposition of a public sanction, the proceeding is confidential.  Judicial discipline proceedings are generally closed unless and until formal charges are filed and an answer is filed.  See Ky. Sup. Ct. R. 4.130.  Final decisions imposing discipline upon attorneys and judges are publicly reported by the Kentucky Supreme Court.

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E. Immigration proceedings

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F. Other proceedings

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

The Kentucky Supreme Court has held that “the right to gather news is clearly entitled to First Amendment protection, otherwise freedom of the press would be severely compromised.”  Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 826 (Ky. 2001).  Restrictions upon the news media’s ability to gather news from participants in court proceedings are treated as a prior restraint on news gathering and must be “necessitated by a compelling governmental interest” and “narrowly tailored to serve that interest.”  Id.

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B. Gag orders on the press

There is no express authority under Kentucky law for gag orders on the press.  The Kentucky Supreme Court has held that “[m]embers of the press, in common with the public in general, are free to report whatever takes place in open court . . . .” Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 828 (Ky. 2001).

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C. Gag orders on participants

There is not much Kentucky case law directly addressing gag orders on participants.  The Kentucky Supreme Court’s decision in Roman Catholic Diocese v. Noble, 92 S.W.3d 724 (Ky. 2002), suggests that gag order on participants may be subject to scrutiny that is only slightly less exacting than the presumptively unconstitutional gag orders directed at the news media.  See also Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky. 2010) (denying the trial court’s ability to preliminarily enjoin alleged libelous speech).

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D. Interviewing judges

There is no Kentucky law directly addressing interviews of judges.  Kentucky state court judges typically will not give interviews concerning ongoing cases or specific matters that may come before them in a judicial capacity because of various provisions in the Kentucky Code of Judicial Conduct, Ky. Sup. Ct. R. 4.300.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

The most often cited interest opposing the presumption of access is the concern that public access may adversely affect a party’s right to a fair trial.  See, e.g., Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846 (Ky. 2009); Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658 (Ky. 1983).  Reputational interests have been asserted, but they do not ordinarily outweigh the public right of access.  See, e.g., Fiorella v. Paxton Media Grp., LLC, 424 S.W.3d 433 (Ky. Ct. App. 2014); but see Roman Catholic Diocese v. Noble, 92 S.W.3d 724 (Ky. 2002) (affirming a trial court order sealing a pleading that was stricken for its “irrelevant and scandalous allegations”).

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B. Cameras and other technology in the courtroom

Kentucky allows video and still cameras in the courtroom at the discretion of the presiding judge.  Kentucky’s Supreme Court has promulgated Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings which govern video, still photography, and audio recording of judicial proceedings.  Kentucky’s Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings do not specifically address webcasting, live blogging or tweeting.  However, Kentucky’s trial courts have permitted webcasting and live blogging of trials by the news media in particular cases.  Section 1 of Kentucky’s Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings limits the number of video, still photography and audio recording devices in a given proceeding.  Section 1(e) requires that any “pooling” arrangements among media representatives as a result of the limits on the number of cameras or recording devices are the sole responsibility of the media.  Section 1(b) of Kentucky’s Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings limits the number of still photographers to one, and limits the number of still cameras to two with not more than two lenses each.

Also, all Kentucky state trial court proceedings are recorded via audiovisual means, and copies are available to the public from the clerks’ offices.

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C. Tips for covering courts in the jurisdiction

Generally, Kentucky state courts do not have transcripts of proceedings.  The proceedings are video/audio recorded, and the recordings constitute the record of proceedings.  Copies of the recordings are generally available to the public from the clerks’ offices.

There are four levels of court in Kentucky.  The appellate courts include the Supreme Court and the Court of Appeals.  The trial courts are divided into Circuit Court, which has general jurisdiction, and District Court, which has limited jurisdiction.

District Court has jurisdiction over juvenile matters, child abuse and neglect, and domestic violence cases, city and county ordinances, traffic offenses, misdemeanor criminal cases, probate, commitment/guardianship cases, felony preliminary hearings, and civil cases involving $5,000 or less.

Circuit Courts have general jurisdiction and preside over civil matters involving more than $5,000, capital offenses and felonies, divorces, adoptions, termination of parental rights, real estate title cases, contested probate cases, and appeals from the District Court and from most administrative agencies.

Family Court is a division of Circuit Court and became a permanent part of Kentucky’s state court system with the 2002 passage of the Family Court Amendment to Kentucky’s state constitution.  Family Court judges are judges of the Circuit Court, but Family Court hears only cases involving families and children and its jurisdiction includes divorce, child support and visitation, paternity, adoption, domestic violence cases, dependency, neglect and abuse cases, termination of parental rights, and runaways and truancy (status offenses).

Kentucky’s Open Records Act, KRS 61.870, et seq., has been held not to apply to the courts of Kentucky, including the courts’ administrative records, because of constitutional separation of powers.  Ex parte Farley, 570 S.W.2d 617, 618 (Ky. 1978).  The Supreme Court of Kentucky has enacted an Open Records Policy for the Administrative Office of the Courts.  For a copy of the policy, see https://courts.ky.gov/courts/supreme/Rules_Procedures/201709.pdf.

Contact information and additional information pertaining to all of Kentucky’s state courts is available online at https://courts.ky.gov.  Kentucky’s Court of Justice also has an Office of Public Information and publishes a Reporter’s Handbook.  See https://courts.ky.gov/aoc/publicinformation/Pages/default.aspx.  The Court of Justice also maintains a separate page specific to the news media.  See https://courts.ky.gov/Pages/media.aspx.

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