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Kentucky

Open Government Guide

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Author

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

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Foreword

Open Records.

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.

Open Meetings.

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).

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Open Records

Kentucky’s Open Records Act is codified at Ky. Rev. Stat. 61.870 to 61.884.

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I. Statute

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.

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A. Who can request records?

Under Kentucky’s Open Records Act, "[a]ll public records shall be open for inspection by any person, 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).

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1. Status of requester

There is no requirement that a person making a records request be a Kentucky citizen or resident.  As a general matter, the Open Records Act does not treat requests differently based on the status of the requester. However, Kentucky law imposes various limitations on records requests submitted by incarcerated individuals. See Ky. Rev. Stat. 197.025.

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2. Purpose of request

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).

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3. Use of records

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.

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

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).

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1. Executive branch

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).

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2. Legislative bodies

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).

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3. Courts

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.

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4. Nongovernmental bodies

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).

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5. Multi-state or regional bodies

The Act, Attorney General opinions, and reported court decisions do not address multistate or regional bodies.

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6. Advisory boards and commissions, quasi-governmental entities

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.

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7. Others

"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).

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C. What records are and are not subject to the act?

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).

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1. What kinds of records are covered?

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).

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2. What physical form of records are covered

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).

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).

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3. Are certain records available for inspection but not copying?

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).

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4. Telephone call logs

Telephone call logs are subject to the Kentucky Open Records Act. See 03-ORD-165.

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5. Electronic records (e.g., databases, metadata)

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. As with all public records in Kentucky, a requester intending to use the information for commercial purposes may face a higher fee.

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a. Can the requester choose a format for receiving records?

The requester may obtain a hard copy or an electronic copy of a public record if the record is stored in an electronic format. The agency is not required to convert a hard copy into an electronic file:

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).

If the requester asks for a hard copy, the agency cannot instead provide a copy on a computer disk: "[P]roduction of records in a format which renders them inaccessible, at least as to the person requesting them, constitutes a subversion of the law." 93-ORD-62.

The standard format for electronic files is ASCII. See Ky. Rev. Stat. 61.874(2)(b). If the public agency's records are stored in a different format, the requester may accept a copy of the record in that format or request a hard copy:

The minimum standard format in paper form shall be defined as not less than 8-1/2 inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requester's requirements, the public record may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.

Ky. Rev. Stat. 61.874(2)(b).

If the requester desires an electronic format other than ASCII, and the public agency does not maintain the record in the requested format, the agency has the choice of complying with this request and charging the requester for its time and expenses:

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.

Ky. Rev. Stat. 61.874(3).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

If the database exists, a requester is entitled to have a search for nonexempt material in that database. However, "a public agency is not required to create a list or a database to satisfy a particular request." 93-ORD-118.

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c. Does the existence of information in electronic format affect its openness?

No, not since the 1994 repeal of Kentucky’s Public Access to Governmental Databases Act.

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d. Online dissemination

Ky. Rev. Stat. 61.874(6) provides:

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.…

However, in Commonwealth of Kentucky v. Courier-Journal, Franklin Circuit Court No. 08-CI-863 (May 15, 2009), the court held that nothing in Ky. Rev. Stat. 61.874(6) “serves to relieve the obligations of the agency under Ky. Rev. Stat. 61.874(2). Thus, although online access may be provided, the agency still must comply with requests for records in hard copy or electronic format.” Id. at 5.

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6. Email

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer software

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).

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

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.

(4)

(a) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee.

(b) The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the 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.

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2. Particular fee specifications or provisions

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:

  1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;
  2. Cost to the public agency of the creation, purchase or other acquisition of the public records.

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).

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.

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3. Provisions for fee waivers

There is no provision for waiving fees. See 94-ORD-90 (finding reporter not entitled to waiver of fees for copying records).

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4. Requirements or prohibitions regarding advance payment

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).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Agencies continue to charge excessive fees, but such fees have been struck down when challenged: "In spite of repeated admonitions that a public agency can only assess a reasonable copying charge . . . a number of public agencies continue to impose clearly excessive fines." 94-ORD-77 (striking down $5 per page copying fee); see also 93-ORD-44 (finding a $100 "production cost" violated the Act).

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6. Fees for electronic records

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E. Who enforces the Act?

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.

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1. Attorney General's role

If, after making a written request and waiting the required three (3) business days for a response, the public agency either denies the request or fails to respond, the requester may ask the Attorney General to review the matter. Ky. Rev. Stat. 61.880(1)-(2). The requester must forward the Attorney General a copy of the written request and a copy of the agency's denial. Ky. Rev. Stat. 61.880(2).

The Attorney General will also review a request when the requester feels the intent of the Act is "being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant." Ky. Rev. Stat. 61.880(4).

The Attorney General may request to inspect the disputed records in camera as part of the appeal process. Ky. Rev. Stat. 61.880(2)(c). The Attorney General is required to render a decision within twenty (20) business days, unless an extension of time up to an additional thirty (30) business days. Ky. Rev. Stat. 61.880(2)(a) & (b).

If either party is unsatisfied with the Attorney General's decision, the party may file an appeal with the Circuit Court within 30 days from the date of the Attorney General's decision. Ky. Rev. Stat. 61.880(5)(a). A timely appeal will be reviewed de novo and treated as if it had been brought in Circuit Court pursuant to Ky. Rev. Stat. 61.882. If not timely appealed, the Attorney General's decision has the force of law and may be enforced by the Circuit Court. Ky. Rev. Stat. 61.880(5)(b).

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2. Availability of an ombudsman

The Kentucky Open Records Act does not provide for an ombudsman.

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3. Commission or agency enforcement

Each agency is required to adopt rules regarding its compliance with the Kentucky Open Records Act and to designate an official custodian of records. Ky. Rev. Stat. 61.876.

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F. Are there sanctions for noncompliance?

A Circuit Court may award a successful requester costs and reasonable attorney fees incurred if the requester prevails against the agency and the agency willfully withheld records in violation of the Kentucky Open Records Act. Ky. Rev. Stat. 61.882(5). Courts also have discretion to "award the person an amount not to exceed twenty-five (25) dollars for each day that he was denied the right to inspect or copy said public record." Id.

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G. Record-holder obligations

The Open Records Act provides obligations upon public agencies and the “official custodians” of public agencies’ records. See Ky. Rev. Stat. 61.870(5).

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1. Search obligations

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2. Proactive disclosure requirements

State agencies post certain contracts, budgets, salary and other information on Kentucky’s “Transparency” website, https://transparency.ky.gov.

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3. Records retention requirements

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.

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4. Provisions for broad, vague, or burdensome requests

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The exemptions to Kentucky’s Open Records Act are set forth at Ky. Rev. Stat. 61.878(1).

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A. Exemptions in the open records statute

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).

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1. Character of exemptions

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)").

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2. Discussion of each exemption

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.”

Id.

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:

  1. In conjunction with an application for or the administration of a loan or grant;
  2. In conjunction with an application for or the administration of assessments, incentives, inducements and tax credits as described in Ky. Rev. Stat. Chapter 154;
  3. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae or processes, which are used for the making, preparing, compounding, treating or processing of articles or materials which are trade commodities obtained from a person; or
  4. For the grant or review of a license to do business;"

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(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:

  1. Critical lists resulting from consequence assessments;
  2. Vulnerability assessments;
  3. Antiterrorism protective measures and plans;
  4. Counterterrorism measures and plans;
  5. Security and response needs assessment;
  6. Infrastructure records that expose vulnerability referred to in this subparagraph through the disclosure of the location, configuration or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems."

Ky. Rev. Stat. 61.878(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(o): “Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:

  1. A contract is awarded; or
  2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited.”

Ky. Rev. Stat. 61.878(p): “Communications of a purely personal nature unrelated to any governmental function.”

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B. Other statutory exclusions

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.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

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).

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

The exemptions to Kentucky’s Open Records Act are set forth at Ky. Rev. Stat. 61.878(1). Unless an exemption applies, all public records are presumptively open for public inspection.

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A. Autopsy and coroners reports

Autopsy and coroner's reports are generally available under the Open Records Act. In limited circumstances when premature release would impair an ongoing law enforcement action, such records may be withheld. See Ky. Rev. Stat. 61.878(1)(h).  Autopsy photographs and similar materials may also be withheld, in certain circumstances, under the personal privacy exemption, Ky. Rev. Stat. 61.878(1)(a), based on the privacy interests of surviving family members. See 17-ORD-009; 05-ORD-075 ("proof that the subject of the autopsy photographs had no living close relatives, that his or her relatives had consented to disclosure of the photographs, or that his or her relatives had otherwise evinced a waiver of their privacy interests" would "almost certainly warrant a contrary holding").

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Records relating to ongoing or prospective investigations can be exempt from disclosure, depending upon the circumstances. Once the investigation is complete, the records are open to inspection. Ky. Rev. Stat. 61.878(1)(h). The statute exempts from disclosure:

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…

Id.

The Kentucky Supreme Court has held that the exception may be invoked “only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).

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C. Bank records

Private bank records or account numbers may be withheld or redacted under the personal privacy exemption, Ky. Rev. Stat. 61.878(1)(a). See 98-ORD-7. A public agency’s bank records are generally open, but account numbers may be redacted under the reasoning that disclosure of the account numbers could put public money at risk of theft, constituting an “unreasonable burden” to the public agency under Ky. Rev. Stat. 61.872(6). See 16-ORD-012.

Public records that reveal the audit criteria or internal examining methods of public agencies that regulate financial institutions are exempt. See Ky. Rev. Stat. 61.878(1)(e).

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D. Budgets

Budgets that are prepared, owned, used, in the possession of, or retained by a public agency are open records and are not exempt from disclosure. Ky. Rev. Stat. 61.870(2).

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E. Business records, financial data, trade secrets

May be exempt under Ky. Rev. Stat. 61.878(1)(c).

Records, which constitute the “inner workings” of the business, are generally exempt from disclosure under Ky. Rev. Stat. 61.878(1)(c). 99-ORD-220; see also Marina Management Servs. v. Cabinet for Tourism, Dep't of Parks, 906 S.W.2d 318 (Ky. 1995); Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766 (Ky. 1995).

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F. Contracts, proposals and bids

Generally, materials, correspondence, and transactions relating to bidding on a contract with a public agency are open to public inspection once the bids are open. In 2018, the Kentucky General Assembly added a specific exemption to the Open Records Act for:

Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:

  1. A contract is awarded; or
  2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited.

Ky. Rev. Stat. 61.878(1)(o).

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G. Collective bargaining records

Collective bargaining records are presumptively open, but an agency may be able to withhold them under Ky. Rev. Stat. 61.878(1)(i) or (j), which apply to certain preliminary records, while collective bargaining negotiations are ongoing.

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H. Economic development records

Ky. Rev. Stat. 61.878 exempts certain economic development records from the Open Records Act. Ky. Rev. Stat. 61.878(c)(2) provides:

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:

  1. In conjunction with an application for or the administration of a loan or grant;
  2. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in [Ky. Rev. Stat.] Chapter 154;
  3. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
  4. For the grant or review of a license to do business.

Id.

Economic development records that indicate final agency action are open, while records that are preliminary in nature – including those that relate to proposals, financial incentives, and negotiations – can be withheld under Ky. Rev. Stat. 61.878(1)(i) and (j). See OAG 87-21 (holding that records involved with an ongoing competitive negotiation process are preliminary pending final resolution of the matter); 97-ORD-62 (holding that records generated in the course of negotiations and disclosing the substance of those negotiations may be withheld pursuant to Ky. Rev. Stat. 61.878(1)(i) and (j) since “premature disclosure of records reflecting the negotiations . . . could seriously compromise the project.”); see also 04-ORD-81 (unaccepted proposals and incentives “remain preliminary and inchoate as they were never accepted and no final agreement reached”).

In 2018, the Kentucky General Assembly added a specific exemption to the Open Records Act for:

Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:

  1. A contract is awarded; or
  2. The procurement process is canceled without award of a contract and there is a determination that the contract will not be resolicited.

Ky. Rev. Stat. 61.878(1)(o).

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I. Election Records

Ky. Rev. Stat. 116.095 provides that “[t]he county clerk shall permit any citizen, at all reasonable hours, to inspect or make copies of any [voter] registration record, without any fee. He or she shall, upon request, furnish to any citizen a copy of the registration records, for which he or she may charge necessary duplicating costs not to exceed fifty cents ($0.50) per page.”

Individual voting results are closed. Ky. Rev. Stat. 118.025(1) (“voting in all elections shall be by secret ballot on voting machines.”) Aggregate voting results by precinct are open. Ky. Rev. Stat. 117.275.

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J. Emergency Medical Services records

Generally open, subject to the personal privacy exemption of Ky. Rev. Stat. 61.878(1)(a) and assuming that the agency meets the definition of a public agency under Ky. Rev. Stat. 61.870(1). However, Ky. Rev. Stat. 311A.190(5) provides “[a]mbulance provider and medical first response provider run report forms and the information transmitted electronically to the board shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form.”

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K. Gun permits

Information concerning individuals licensed in Kentucky to carry a concealed firearm is generally closed from the public. Ky. Rev. Stat. 237.110(10).

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L. Homeland security and anti-terrorism measures

The Attorney General has found that records relating to security measures taken for protection of a high United States Government official are not covered by Open Records Act, pursuant to Ky. Rev. Stat. 61.878(1)(m), which exempts records regarding antiterrorism protective measures and plans; and security and response needs assessment. 05-ORD-119, upheld by Associated Press v. Governor Ernie Fletcher, Franklin Circuit Court No. 05-CI-00959 (December 5, 2005).

Certain records deemed to have a "reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terroristic act" are exempt from the Open Records Act. Ky. Rev. Stat. 61.878(1)(m). The records are limited to:

a. Criticality lists resulting from consequence assessments

b. Vulnerability assessments;

c. Antiterrorism protective measures and plans;

d. Counterterrorism measures and plans;

e. Security and response needs assessments;

f. Infrastructure records that expose a vulnerability referred to in this subparagraph through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage, and gas systems;

g. The following records when their disclosure will expose a vulnerability referred to in this subparagraph: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems of any building or facility owned, occupied, leased, or maintained by a public agency; and

h. Records when their disclosure will expose a vulnerability referred to in this subparagraph and that describe the exact physical location of hazardous chemical, radiological, or biological materials.

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M. Hospital reports

A hospital's medical records of individual patients are not public records. See Hardin County v. Valentine, 894 S.W.2d 151 (Ky. Ct. App.1995).

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N. Personnel records

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1. Salary

The salaries of public employees are open. 10-ORD-226 (“In a line of open records opinions/decisions dating from the earliest days of the Act, this office recognized that "[a]mounts paid from public coffers are perhaps uniquely of public concern . . . . [T]he public is entitled to inspect records documenting exact amounts paid from public monies to include amounts paid for . . . salaries, etc.”) (internal citations omitted).

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2. Disciplinary records

Charging documents and final reprimands of public employees are open. City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App. 1982); Palmer v. Driggers, 60 S.W.3d 591 (Ky. Ct. App. 2001). The Attorney General has held that “disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know.” OAG 91-198. However, certain statutes outside the Open Records Act may prevent disclosure. See Ky. Rev. Stat. 161.790(10) (permitting a private reprimand of a teacher).

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3. Applications

Open when the applicant is selected, but records related to the unsuccessful, unidentified job candidates may be subject to the personal privacy exemption of Ky. Rev. Stat. 61.878(1)(a). See 10-ORD-196, (a requester cannot get the application of unsuccessful, unidentified candidates for the position of district superintendent); see also 03-ORD-084, (application letter of an unsuccessful candidate to become the president of a university was open because his name had been disclosed and thus there was no longer a privacy interest).

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4. Personally identifying information

The Open Records Act exempts “records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” Ky. Rev. Stat. 61.878(1)(a). As such, agencies may redact information such as home address, telephone number, date of birth and Social Security number in records that are otherwise nonexempt. Ky. New Era v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013); Ky. Rev. Stat. 61.878(4); 93-ORD-118; 95-ORD-151.

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5. Expense reports

To the extent that expense reports are “prepared, owned, used, in the possession of or retained by a public agency,” they are open. Ky. Rev. Stat. 61.870(2).

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

Police records relating to ongoing or prospective investigations may be exempt from disclosure. Once the investigation is completed, the records are open to inspection. See Ky. Rev. Stat. 61.878(1)(h), which states:

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…

The exception may be invoked “only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).

Police records identifying juvenile suspects or defendants are exempt from disclosure. See 93-ORD-42 (discussing exemption mandated by Ky. Rev. Stat. 610.320(3)).

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1. Accident reports

Traffic accident reports are specifically exempted from the Open Records Act under Ky. Rev. Stat. 189.635(5), which provides that “[a]ll accident reports filed with the Department of Kentucky State Police … shall not be considered open records under Ky. Rev. Stat. 61.872 to 61.884 and shall remain confidential …” However, Ky. Rev. Stat. 189.635(8) permits such reports to be made available to news-gathering organizations “solely for the purpose of publishing or broadcasting news.” Ky. Rev. Stat. 189.635(8) contains other limitations on use of the reports by news-gathering organizations.

The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast.

Id.

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2. Police blotter

Open. See Cape Publications v. City of Louisville, 147 S.W. 3d 731, 733 (Ky. Ct. App. 2004) (“[P]olice incident reports are matters of public interest and are public records. 93-ORD-42, citing OAG 76-443. As a result, the public should be allowed to scrutinize the police to ensure they are complying with these statutory duties.”). However, certain information pertaining to individuals named in police records may be redacted. Ky. New Era v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013).

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3. 911 tapes

In Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. Ct. App. 2000), the Kentucky Court of Appeals affirmed a lower court decision that a recorded 911 call was exempt from disclosure under the Open Records Act because of the personal privacy exception in Ky. Rev. Stat. 61.878(1)(a). However, in a later unpublished case, the Court of Appeals found that a 911 call was not exempt because, unlike Bowling, “the 911 caller was neither an alleged victim of domestic violence nor subject to future threats from the alleged domestic violence perpetrator.” Marshall County v. Paxton Media Group, No. 2008-CA-001100MR, 2009 Ky. App. Unpub. LEXIS 399 (Ky. Ct. App. Jan. 23, 2009). See also 14-ORD-139 (finding 911 recording exempt under law enforcement records exemption, Ky. Rev. Stat. 61.878(1)(h), where agency articulated harm that would result specifically from pretrial disclosure of the recording).

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4. Investigatory records

Records of ongoing investigations may be closed. See Ky. Rev. Stat. 61.878(1)(h). The exception may be invoked “only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).

Records of concluded investigations are open. See Ky. Rev. Stat. 61.878(1)(h).

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5. Arrest records

Generally open. See Cape Publications v. City of Louisville, 147 S.W. 3d 731, 733 (Ky. Ct. App. 2004) (“[P]olice incident reports are matters of public interest and are public records.”).

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6. Compilations of criminal histories

Open, however, the primary compiler of criminal histories is the Administrative Office of the Courts, an entity not subject to the Open Records Act. Ex Parte Farley, 570 S.W.2d 617, 624 (Ky. 1978) (“[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 regulation.”).

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7. Victims

Generally open, except for the names and identifying information of victims of sexual offenses in certain cases. In Cape Publications v. City of Louisville, the Kentucky Court of Appeals held that “the Division may not withhold the identities of all crime victims as a matter of policy… .” 147 S.W. 3d 731, 732 (Ky. Ct. App. 2004). The Court went on to exclude the victims of sex crimes from the general policy of openness, because of the personal nature of the crime. Id. at 732-733. However, the Court noted that: “[W]e believe that in rare instances, such as where the victim of a sexual offense has "gone public," or other circumstances in which the victim has evidenced a waiver of privacy, that victim's privacy interests may be subordinate to the public's interest in disclosure.” Id.

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8. Confessions

See Ky. Rev. Stat. 61.878(1)(h); see also 08-ORD-016.

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9. Confidential informants

Records revealing confidential informants may be closed. See Ky. Rev. Stat. 61.878(1)(h).

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10. Police techniques

Generally open. See Ky. Rev. Stat. 61.878(1)(h).

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11. Mugshots

Generally open. In 2016, the General Assembly enacted a specific provision in the Open Records Act to prohibit use of mug shots for the commercial purpose of placing the mug shot on an internet website and charging money to remove it. See Ky. Rev. Stat. 61.8746.

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12. Sex offender records

Open. See Ky. Rev. Stat. 17.580.

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13. Emergency medical services records

Generally open, subject to the personal privacy exemption of Ky. Rev. Stat. 61.878(1)(a) and assuming that the agency meets the definition of a public agency under Ky. Rev. Stat. 61.870(1). However, Ky. Rev. Stat. 311A.190(5) provides “[a]mbulance provider and medical first response provider run report forms and the information transmitted electronically to the board shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form.”

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14. Police video (e.g, body camera footage, dashcam videos)

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

"[R]ecords containing the names of persons lodged in a jail as inmates must be released." 93-ORD-102. In addition, the visitors log of a jail and the jail's general business records are not exempt from disclosure. Id.

However, Ky. Rev. Stat. 197.025 exempts from disclosure certain jail records if release of those records would "constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution or any other person." See 95-ORD-121 (discussing Ky. Rev. Stat. 197.025). Ky. Rev. Stat. 197.025 limits the dissemination of records where “disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.”

An inmate may request copies of all non-confidential information contained in his file. Commonwealth of Kentucky, Dep’t of Corr. v. Chestnut, 250 S.W.3d 655, 658 (Ky. 2008). Though an inmate’s open records request is subject to the limitations contained in Ky. Rev. Stat. 197.025, an inmate is not required to submit a particularized open records request in order to access his own file. Id. at 662. As such, the Department of Corrections could not enforce such a limitation. Id. (“[A]n administrative agency ‘cannot by its rules and regulations, amend alter, enlarge or limit the terms of legislative enactment.’”).

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Q. Professional licensing records

Generally open. See 15-ORD-011.

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R. Public utility records

Individual usage records are closed under the personal privacy exception in 61.878(1)(a), but aggregate information is open. See 09-ORD-196 (disclosing aggregate water and sewer usage would not identify usage of specific individuals, and thus does not fall under the personal privacy exception to the Open Records Act).

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S. Real estate appraisals, negotiations

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1. Appraisals

Ky. Rev. Stat. 61.878(1)(f) exempts “[t]he contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or for a public agency relative to acquisition of property, until such time as all of the property has been acquired.”

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2. Negotiations

Records of ongoing negotiations may be withheld, depending upon the circumstances, as “Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.” Ky. Rev. Stat. 61.878(1)(i); see 12-ORD-217.

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3. Transactions

Records of completed real estate transactions are open.

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4. Deeds, liens, foreclosures, title history

Open.

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5. Zoning records

Open.

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T. School and university records

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1. Athletic records

Generally open, unless they constitute “education records” under the Family Education Rights and Privacy Act [FERPA], 20 U.S.C. § 1232. See 15-ORD-74.

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2. Trustee records

Open – there is no exception in the Open Records Act for trustee records.

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3. Student records

Closed, if they fit the definition of "education records" within the meaning of 20 U.S.C. § 1232g(4)(A). Disclosure of such records is prohibited under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), codified at 20 U.S.C. § 1232g and incorporated into the Open Records Act by operation of Ky. Rev. Stat. 61.878(1) (k), which prohibits the dissemination of “public records or information the disclosure of which is prohibited by federal law or regulation.” See 10-ORD 150. In 00-ORD-148, the Attorney General held student records “do not have to be related to academic matters to be ‘education records’ under FERPA.” Id. (citing U.S. v. Miami University, 91 F.Supp 1132, 1149 n. 17 (S.D. Ohio 2000)).

FERPA does not prohibit disclosure of “directory information.” 20 U.S.C. § 1232g(b)(1). Directory information includes: “the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.” Id. at 1232g(a)(5).

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

N/A.

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U. State guard records

Not Applicable in Kentucky.

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V. Tax records

Property tax records are generally open, but many other tax records are confidential. See 11-ORD-174; see also Ky. Rev. Stat. 131.081(15) (taxpayers “shall have the right to privacy with regard to the information provided on their Kentucky tax returns and reports, including any attached information or documents.”).

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W. Vital Statistics

Access to vital records, including birth and death records, is governed Ky. Rev. Stat. 213.131 et seq. Ky. Rev. Stat. 213.131(1) and (2) provide for limited access to vital records. Ky. Rev. Stat. 213.131(1) states:

(1) To protect the integrity of vital records, to insure their proper use, and to insure the efficient and proper administration of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose information contained in vital records or to copy or issue a copy of all or part of any record except as authorized by this chapter, by regulation, or by order of a court of competent jurisdiction. Administrative regulations adopted by the cabinet shall provide for adequate standards of security and confidentiality of vital records and shall conform to subsection (4) of this section.

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1. Birth certificates

Under Ky. Rev. Stat. 213.131(2) the state registrar is required to prepare annually an alphabetical list of all people born the preceding year. Id. The list must show the person’s name, the mother’s maiden name and the date and county of birth. Id. The list is an open record. However, Ky. Rev. Stat. 213.131(1) limits further access to birth records.  See 08-ORD-219 (denying access to State Birth Index).

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2. Marriage and divorce

Certificates of marriage and dissolution of marriage are vital records subject to Ky. Rev. Stat. 213.131, et seq. Court records relating to divorce, like all other court records, are not governed by the Open Records Act, but they are generally open. See Ex Parte Farley, 570 S.W.2d 617, 624 (Ky. 1978).

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3. Death certificates

Ky. Rev. Stat. 213.131 et seq., governs access to death certificates. See 07-ORD-003 (Cabinet of Health and Family Services satisfied the Open Records Act by offering to send the requester an alphabetical list of death records containing the only information to which he is entitled under Ky. Rev. Stat. 213.131(2)).

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4. Infectious disease and health epidemics

There is no statutory or case law addressing this issue.

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IV. Procedure for obtaining records

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A. How to start

Each public agency is required to promulgate rules and regulations which shall include the title and address of the official custodian, the fees charged for copies, and the procedures to be followed in requesting public records. Ky. Rev. Stat. 61.876; see also 200 KAR 1:020 (administrative regulation for state agencies).

In addition, each public agency is directed to provide "suitable facilities" for persons to inspect public records. Ky. Rev. Stat. 61.872(1); see also 93-ORD-39 ("public agencies must work in a spirit of cooperation with individuals wishing to inspect their records").

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1. Who receives a request?

A request for a public record should be directed to the "official custodian" of the records, which is the "chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records." Ky. Rev. Stat. 61.870(5).

If the person to whom the request is sent is not the official custodian, that person is required to notify the requester and provide the official custodian's name and address. Ky. Rev. Stat. 61.872(4).

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2. Does the law cover oral requests?

The Open Records Act does not prohibit oral requests, but the agency's official custodian "may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." Ky. Rev. Stat. 61.872(2). State agencies generally require a written request. See 200 KAR 1:020 § 3 (permitting person "on written application" to inspect records).

Regardless of whether oral requests are permissible, a request should be in writing in order to quickly enforce the Act. See Ky. Rev. Stat. 61.880.

The requester may choose to make an onsite inspection and no unreasonable restrictions may be imposed. 97-ORD-12. Nonetheless the Attorney General has held that "when there is a mechanism in place for providing public access to public records, without resorting to on site use of agency's computers, the agency discharges its duty to access under Ky. Rev. Stat. 61.872 by utilizing the alternative mechanism, and the requester's right of inspection is not abridged." 00-ORD-8.

The public agency is required to provide in writing its decision whether to provide or deny inspection of the public record. Ky. Rev. Stat. 61.880(1).  The requesting party is required to attach the public agency’s decision to any appeal to the Attorney General regarding the decision. See Ky. Rev. Stat. 61.880(2).

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

A public agency has three days, excluding holidays and weekends, after receipt of a request to notify in writing the requester of the agency's decision to allow or deny inspection of the public record. Ky. Rev. Stat. 61.880(1).

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2. Informal telephone inquiry as to status

The time limit for an agency's response does not depend on the method by which the request was made, i.e. in writing, by telephone, or in person. Cf. Ky. Rev. Stat. 61.880(1). However, written requests are generally required in order to enforce the Open Records Act. See Ky. Rev. Stat. 61.872(2); 61.880(2).

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3. Is delay recognized as a denial for appeal purposes?

If the agency refuses to provide a written response to a request within three business days, the requester may seek enforcement of the Open Records Act with the Attorney General. Ky. Rev. Stat. 61.880(2)(a). However, “[i]f the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter.” 40 KAR 1:030 § 6.

If the requester believes the intent of the Open Records Act “is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.” Ky. Rev. Stat. 61.880(4); 92-ORD-35 (finding three-month delay in redacting exempt information from records was unreasonable).

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4. Any other recourse to encourage a response

A person may bring a court action to enforce the Open Records Act. See Ky. Rev. Stat. 61.882(2). This may be done in lieu of an administrative appeal or after an unsuccessful administrative appeal. See Ky. Rev. Stat. 61.882(2).

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C. Administrative appeal

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

Each public agency is required to designate an official custodian who is the agency’s authority concerning open records requests. Ky. Rev. Stat. 61.876(1)(b); Ky. Rev. Stat. 61.870(5).  If the public agency denies a request, the requester may ask the Attorney General to review the decision. Ky. Rev. Stat. 61.880(2). The requester should forward the Attorney General a copy of the written request and a copy of the agency's denial. Ky. Rev. Stat. 61.880(2).

If either party is unsatisfied with the Attorney General's decision, the party may file an appeal with the Circuit Court within 30 days from the date of the attorney general's decision. Ky. Rev. Stat. 61.880(5)(a). A timely appeal will be treated as if it was brought in Circuit Court pursuant to Ky. Rev. Stat. 61882. If not timely appealed, the attorney general's decision has the force of law. Ky. Rev. Stat. 61.880(5)(b).

Appeals of the denial of an open records request by the director of the Legislative Research Commission (on behalf of Kentucky’s General Assembly or the Legislative Research Commission) must be made to the Legislative Research Commission instead of to the Attorney General. See Ky. Rev. Stat. 7.119(3). Otherwise, the process is the same.

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3. Fee issues

If a requester believes the agency is charging excessive fees, the requester may complain in writing to the Attorney General. See Ky. Rev. Stat. 61.880(4).

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4. Contents of appeal

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5. Waiting for a response

The Attorney General allows the public agency an opportunity to submit a written response to the appeal, which must also be sent to the requester. See 40 KAR 1:030 § 2. The public agency is required to carry the burden of proving that its actions are justified under the law. See Ky. Rev. Stat. 61.880(2)(c).

The Attorney General has twenty (20) days from the receipt of the appeal, excluding holidays and weekends, to issue a written decision stating whether the agency violated the Open Records Act. See Ky. Rev. Stat. 61.880(2)(a). The Attorney General may extend this period by an additional 30 business days if additional documentation or extensive research is needed or if there is an "unmanageable increase" in appeals to review. See Ky. Rev. Stat. 61.880(2)(b). The Attorney General is required to send copies of the decision to the agency and the requester. See Ky. Rev. Stat. 61.880(2)(c).

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6. Subsequent remedies

Once the Attorney General issues a decision, the Attorney General will not accept a request to reconsider it. 40 KAR 1:030 § 4. A party has 30 days to appeal the Attorney General's decision by filing an action in Circuit Court. Ky. Rev. Stat. 61.880(5)(a). If an appeal is not timely filed, the Attorney General's decision has the force of law and may be enforced in the Circuit Court where the public agency has its principal place of business or where the public record is maintained. Ky. Rev. Stat. 61.880(5)(b); see also Cabinet v. Todd Cty. Standard, 488 S.W.3d 1 (Ky. Ct. App. 2015).

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

A requester may file an original action in Circuit Court to enforce the Open Records Act and is not required to seek the Attorney General's review before doing so. Ky. Rev. Stat. 61.882(2).

The parties to an Open Records Act appeal or original action are typically only the requester and the public agency.  The Attorney General must be notified of original actions and appeals of Attorney General decisions, but may not be named as a party. See Ky. Rev. Stat. 61.880(3).

In Beckham v. Board of Educ. of Jefferson County, 873 S.W.2d 575 (Ky. 1994), the Court permitted teachers to intervene in an Open Records Act lawsuit brought by a newspaper against a board of education. The records which the newspaper sought included disciplinary actions and grievances against the teachers. The court literally interpreted Ky. Rev. Stat. 61.882(1), which empowers Circuit Courts to enforce the Open Records Act “by injunction or other appropriate order on application of any person.” 873 S.W.2d at 578. In Lawson v. Office of the AG, 415 S.W.3d 59 (Ky. 2013), the Court held that a person’s standing to oppose a public agency’s disclosure of public records is limited to the disclosure exemptions that are designed to protect the person’s individual interests. In that case, the Court held the individual could assert his personal privacy interests under Ky. Rev. Stat. 61.878(1)(a) but lacked standing to assert that the law enforcement exemption, Ky. Rev. Stat. 61.878(1)(h), applied because it was designed to protect the interests of law enforcement agencies and not individuals.

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2. Priority

Ky. Rev. Stat. 61.882(4) provides that, “[e]xcept as otherwise provided by law or rule of court, proceedings arising under this section take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date.”

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3. Pro se

As with any court action, the litigant has the choice of proceeding pro se. As with most court actions, this is not advisable, inasmuch as the public agency will certainly be represented by counsel.

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4. Issues the court will address

Original actions and appeals of Attorney General decisions are treated essentially the same in the Circuit Court. In both cases, the Circuit Court will examine whether the public agency violated the Open Records Act by denying access to a record, by charging excessive fees, or otherwise. The Court may inspect the disputed records before deciding the case. See Ky. Rev. Stat. 61.882(3). The public agency is required to carry the burden of proof to justify its actions. Id.

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a. Denial

The vast majority of issues addressed by courts in Open Records Act cases involve the question of whether the public agency’s denial of a records request violates the Act, i.e., whether the requested records are exempt from disclosure.

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b. Fees for records

Court actions under the Open Records Act may be brought concerning the appropriateness of fees charged by public agencies. See Ky. Rev. Stat. 61.882(1). A public agency may charge a reasonable fee for reproduction of nonexempt public records, which will not exceed the actual costs of reproduction. See Ky. Rev. Stat. 61.874(4); Woodward, Hobson & Fulton, L.L.P. v. Revenue Cabinet, 69 S.W.3d 476, 480 (Ky App. 2002). Costs of reproduction include costs of media and any mechanical processing cost, but not costs of required staff. Id. An agency may not charge sales tax for reproduction of records because "providing copies of nonexempt public records is not a 'sale' of the records." Id.

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c. Delays

Court actions under the Open Records Act may be brought concerning delays or other actions by public agencies that violate, or frustrate the intent of, the Act. See Ky. Rev. Stat. 61.882(1).

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d. Patterns for future access (declaratory judgment)

Kentucky’s Open Records Act does not include any express provisions regarding declaratory judgments.

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5. Pleading format

Kentucky’s Open Records Act does not provide for any specific pleading format. Pleading formats in Kentucky’s Circuit Courts are governed generally by the Kentucky Rules of Civil Procedure and more specifically by local rules of the various Circuits.

To receive priority on the docket the pleading should alert the Circuit Court that the lawsuit concerns the Open Records Act. See Ky. Rev. Stat. 61.882(4).

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6. Time limit for filing suit

The Open Records Act does not have a specific statute of limitations for filing suit. However, there is a 30-day deadline to appeal an Attorney General decision under the Open Records Act. See KRS 61.880(5)(a).

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7. What court?

An original action or an appeal of an Attorney General's decision must be filed in either the Circuit Court of the county where the public agency has its principal place of business or where the public record is maintained. See Ky. Rev. Stat. 61.882(1).

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

See Section IV(D)(9).

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b. Court and litigation costs

See Section IV(D)(9).

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

The losing party may file an appeal of right with the Kentucky Court of Appeals.

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2. Time limits for filing appeals

The notice of appeal must be filed within 30 days of the Circuit Court's final appealable decision. See Ky. R. Civ. P. 73.02.

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3. Contact of interested amici

Amicus curiae may not file briefs in the Kentucky appellate courts unless they first obtain an order from the courts permitting the filing of these briefs. See Ky. R. Civ. P. 76.12(7).

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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G. Addressing government suits against disclosure

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Open Meetings

Kentucky’s Open Meetings Act is codified at Ky. Rev. Stat. 61.800 to 61.850.

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I. Statute - basic application

Kentucky’s Open Meetings Act applies to all public agencies in local and state government. The Act’s “basic policy” is “that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by [Ky. Rev. Stat.] 61.810 or otherwise provided for by law shall be strictly construed.” Ky. Rev. Stat. 61.800.

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A. Who may attend?

Under Kentucky’s Open Meetings Act, any person may attend the meeting of a public agency: “All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times… ." Ky. Rev. Stat. 61.810(1).

The public agency may not impose any conditions on attendance, and may not prohibit media coverage:

No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person can be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.

Ky. Rev. Stat. 61.840.

A city may not, for example, require people attending a public meeting to identify whether they are residents of the city. 98-OMD-44. See also 92-146 ("As a general rule a public meeting of a public body is either opened to everyone under the Open Meetings Act or closed to everyone under a statutorily recognized exception to the Open Meetings Act. There is no principle of selective admission set forth in the Open Meetings Act").

Although anyone may attend a public meeting, the Act does not guarantee a person the right to address the public agency during the meeting. See 95-OMD-99; see also 94-OMD-87 (city doesn't violate Act by not providing room for everyone at a particular meeting when the facility normally accommodates all those wishing to attend).

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B. What governments are subject to the law?

State, county, and local or municipal bodies are covered by the Kentucky Open Meetings Act, as well as the governing bodies of public universities and schools:

"Public agency" means:

(a) Every state or local government board, commission and authority;

(b) Every state or local legislative board, commission and committee;

(c) Every county and city governing body, council, school district board, special district board and municipal corporation;

(d) 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;

(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution or other legislative act in the legislative or executive branch of government;

(f) Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g) or (h) of this subsection, a member or employee of a "public agency," a state or local officer, or any combination thereof;

(g) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f) or (h) of this subsection; and

(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f) or (g) of this subsection.

Ky. Rev. Stat. 61.805(2).

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1. State

The Open Meetings Act applies to the governing bodies of state agencies. See Ky. Rev. Stat. 61.810(1).

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2. County

The Open Meetings Act applies to "every county and city governing body, council, school district board, special district board and municipal corporation." Ky. Rev. Stat. 61.805(2)(c). "Any body created by or pursuant to state or local statute, executive order, ordinance, resolution or other legislative act in the legislative or executive branch of government" is also subject to the Act. Ky. Rev. Stat. 61.805(2)(e).

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3. Local or municipal

The Open Meetings Act generally applies to all local governments and municipalities pursuant to Ky. Rev. Stat. 61.805(c) & (e).

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C. What bodies are covered by the law?

Ky. Rev. Stat. 61.805(2)(a) through (h) contains the various definitions of “public agencies” which are subject to the Open Meetings Act. Generally, the governing bodies of all state and local government agencies covered by the Act.

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1. Executive branch agencies

Generally, the governing bodies of all executive branch agencies are covered by the Open Meetings Act. See Ky. Rev. Stat. 61.805(2). However, executive cabinet meetings may be held in closed session. See Ky. Rev. Stat. 61.810(1)(h).

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a. What officials are covered?

A "member" of a public agency is covered by the Open Meetings Act: "'Member' means a member of the governing body of the public agency and does not include employees or licensees of the agency." Ky. Rev. Stat. 61.805(4).

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b. Are certain executive functions covered?

"State and local cabinet meetings and executive meetings" are exceptions to the Open Meetings Act, allowing such meetings to be held in closed session. Ky. Rev. Stat. 61.810(1)(h).

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c. Are only certain agencies subject to the act?

Ky. Rev. Stat. 61.805(2) sets forth the definitions of “public agencies” which are subject to the Open Meetings Act. Certain agencies are specifically exempted from the requirement to conduct open meetings, such as the Kentucky Parole Board’s deliberations [Ky. Rev. Stat. 61.810(1)(a)], state and local cabinet meetings and executive cabinet meetings [Ky. Rev. Stat. 61.810(1)(h)], committees of the General Assembly other than standing committees [Ky. Rev. Stat. 61.810(1)(i)], and deliberations of judicial and quasi-judicial bodies [Ky. Rev. Stat. 61.810(1)(j)].

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2. Legislative bodies

"Every state or local legislative board, commission and committee" is covered. Ky. Rev. Stat. 61.805(2).

The General Assembly is a public agency for purposes of the Open Meetings Act. See 93-OMD-63 and 94-OMD-23. Committees of the General Assembly, however, other than standing committees, are exempt from the Act. Ky. Rev. Stat. 61.810(1)(i).

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3. Courts

Not covered. See Ky. Rev. Stat. 61.805(2). Also excluded are "[d]eliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments." Ky. Rev. Stat. 61.810(1)(j).

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4. Nongovernmental bodies receiving public funds or benefits

Receipt of public funds by private entities does not convert those entities into public agencies for purposes of the Open Meetings Act. See Ky. Rev. Stat. 61.805(2). However, receipt of public funds by private entities may convert the entities into public agencies for purposes of the Open Records Act. See 61.870(1)(h).

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5. Nongovernmental groups whose members include governmental officials

A nongovernmental organization may be covered by the Open Meetings Act if "the majority of its governing body" is appointed by a public agency and/or a state or local officers. Ky. Rev. Stat. 61.805(2)(f).

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6. Multi-state or regional bodies

Multistate or regional bodies are included in the Open Meetings Act. See Ky. Rev. Stat. 61.805(2).

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7. Advisory boards and commissions, quasi-governmental entities

Public agencies covered by the Open Meetings Act include "[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency . . . established, created and controlled by a 'public agency.'" Ky. Rev. Stat. 61.805(2)(g).

An advisory committee, which was appointed by the county judge-executive, is a public agency because the judge-executive is a member of a public agency. 95-OMD-124; see also Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884 (Ky. 1987) (including ad hoc committees and advisory bodies as public agencies subject to the Act).

In 95-OMD-71, the Attorney General held that the "Prestonsburg Community College Leadership Team" is not a public agency because it "exists at the sole discretion of the President of the college, and its composition, role and use are defined by the President." If the college's governing body, its board of trustees, had appointed the group, the Attorney General would have held differently. This is because the board, and not the president, is a "public agency" subject to Ky. Rev. Stat. 61.805(2). Id.  In contrast, the Attorney General held that the Eastern Kentucky University’s advisory “Faculty Committee on Dismissal” is a public agency because it was created, established, and controlled by the University’s Board of Regents. 18-OMD-125.

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8. Other bodies to which governmental or public functions are delegated

Private bodies exercising governmental functions are covered by the Open Meetings Act. See Ky. Rev. Stat. 61.805(2)(g); Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732 S.W.2d 884 (Ky. 1987).

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9. Appointed as well as elected bodies

Both appointed and elected bodies are covered by Kentucky’s Open Meetings Act. See Ky. Rev. Stat. 61.805(2).

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D. What constitutes a meeting subject to the law

A meeting is defined as "all gatherings of every kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." Ky. Rev. Stat. 61.805(1).

"For a meeting to take place within the meaning of the Act, public business must be discussed or action must be taken by the agency. Public business is not simply any discussion between two officials and the agency. Public business is the discussion of the various alternatives to a given issue about which the Board has the option to take action." Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998).

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1. Number that must be present

Generally, Kentucky’s Open Meetings Act applies to any meeting of a quorum of the members of a public agency, which is ordinarily a simple majority. See Ky. Rev. Stat. 61.810(1).  The Act also applies to a series of less-than-quorum meetings. See Ky. Rev. Stat. 61.810(2).

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a. Must a minimum number be present to constitute a "meeting"?

A meeting under Kentucky’s Open Meetings Act does not occur unless a quorum of the public agency is present: "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings . . . ." Ky. Rev. Stat. 61.810(1).

Even a quorum may not constitute a meeting where the gathering was not called by the public agency but instead takes place at a convention or social event. See 95-OMD-136 (though quorum of city council members attended convention, this did not constitute public meeting; council members were not authorized to take action affecting city or to discuss matters affecting city).

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b. What effect does absence of a quorum have?

The Open Meetings Act does not apply, generally, where less than a quorum of members is present. In Bourbon County Board of Adjustment v. Currans, 873 S.W.2d 836 (Ky. Ct. App. 1994), the Court held that the Act did not apply to a meeting of board members "[b]ecause of the absence of a quorum of board members." Id. at 839; see also 93-OMD-63 ("if a quorum was not present the meeting in question was not a public meeting under the Open Meetings Act").

However, a public agency may not avoid the purpose of the Open Meetings Act by holding a series of meetings with less than a quorum of members at the meetings:

Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

Ky. Rev. Stat. 61.810(2); see also 10-OMD-43 (finding Butler County Fiscal Court violated the Open Meetings Act by conducting a series of less than quorum meetings with the sheriff to discuss his proposed budget, under circumstances that manifested an intent to avoid the requirements of the Act.).

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2. Nature of business subject to the law

The Open Meetings Act covers all meetings of public agencies, "whether regular or special and informational or casual gatherings," Ky. Rev. Stat. 61.805(1), "at which any public business is discussed or at which any action is taken by the agency." Ky. Rev. Stat. 61.810(1).

"Action taken" is defined as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." Ky. Rev. Stat. 61.805(3); see 94-OMD-127 (city council's vote to hire architecture firm constituted "action taken" and name of firm must be released to public, even though other steps were left to make contract final);  Bd. of Comm'rs of Danville v. Advocate Commc’ns, 527 S.W.3d 803 (Ky. 2017) (holding board’s decision to bid on property at an upcoming absolute auction constituted “action taken”).

The location of a meeting is irrelevant to whether the meeting should be open to the public. A fiscal court luncheon meeting at a country club and a meeting on a boat at which public business was discussed were held to be subject to the Open Meetings Act. Fiscal Court v. Courier-Journal, 554 S.W.2d 72, 73 (Ky. 1977). Cf. 95-OMD-136 ("A quorum of the members of a public agency may attend a professional or social event, such as a convention, without violating the Open Meetings Act [although the event or meeting must be one] organized by someone other than the public agency").

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a. "Information gathering" and "fact-finding" sessions

The Open Meetings Act covers "informational or casual gatherings." Ky. Rev. Stat. 61.805(1).
A casual gathering by fiscal court commissioners for informational purposes is an open meeting for which proper notice should have been given. 94-OMD-50.

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b. Deliberation toward decisions

Deliberations are covered by the Open Meetings Act unless specifically excluded under Ky. Rev. Stat. 61.810(1).

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3. Electronic meetings

Kentucky’s Open Meetings Act provides for meetings to be conducted by video teleconference in limited circumstances. See Ky. Rev. Stat. 61.826. The same procedures with regard to notice, participation, distribution of materials, and other matters apply to meetings via video teleconference.

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a. Conference calls and video/Internet conferencing

The Open Meetings Act does not provide for audio-only or telephone conferencing. See 18-OMD-25. The Act authorizes video teleconferencing in limited circumstances. Id.; see Ky. Rev. Stat. 61.826.  The Act defines "video teleconference" as “one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment.” Ky. Rev. Stat. 61.805(5).

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b. E-mail

The Open Meetings Act does not provide for e-mail meetings. See 17-OMD-165.

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c. Text messages

The Open Meetings Act does not provide for meetings via text message. See 17-OMD-165. The Open Meetings Act is not necessarily violated when a member of the public agency sends or receives text messages during a public meeting, but discussion of agency issues among members via text message during a meeting could violate the Act.  See 18-OMD-60.

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d. Instant messaging

The Open Meetings Act does not address instant messaging and does not permit meetings to be conducted by instant message. See Ky. Rev. Stat. 61.810(2).

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e. Social media and online discussion boards

The Open Meetings Act does not address social media or online discussion boards and does not permit meetings to be conducted by social media or discussion board. See Ky. Rev. Stat. 61.810(2).

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E. Categories of meetings subject to the law

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1. Regular meetings

Differences between “regular” meetings and “special” or “emergency” meetings under Kentucky’s Open Meetings Act are set forth in Ky. Rev. Stat. 61.820 & 61.823.

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a. Definition

A "regular" meeting is one held on a regularly scheduled basis. See Ky. Rev. Stat. 61.820. In order to qualify as a “regular” meeting under Kentucky’s Open Meetings Act, the meeting must be scheduled by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency, and the schedule of regular meetings must be made available to the public. Ky. Rev. Stat. 61.820(2).

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b. Notice

Public agencies are required to make available to the public the schedules of their regular meetings:

 

(1) All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.

(2) All public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.

Ky. Rev. Stat. 61.820; see also 95-OMD-106 (finding that 9 a.m. school board meeting is convenient for public even though it is inconvenient for teacher).

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c. Minutes

A public agency must record actions taken at its meetings and make those minutes available at the end of its next meeting:

The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body.

Ky. Rev. Stat. 61.835; see also 12-OMD-67 (public agency may not vote by secret ballot; minutes must show how each member voted).

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2. Special or emergency meetings

The Open Meetings Act provisions dealing with “special” and “emergency” meetings are at Ky. Rev. Stat. 61.823.

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a. Definition

A “special” meeting is “[a]ny meeting which deviates from the regular schedule of meetings.” 92-OMD-1473. "If the public agency holds a meeting in addition to, outside of or in place of the regular schedule of meetings that meeting is a special meeting . . . ." 92-OMD-1677.

Even a regularly scheduled meeting may be a special meeting if it is rescheduled for a different time. See 92-OMD-1473; 92-OMD-1677; see also Coppage v. Ohio Co. Bd. of Educ., 860 S.W.2d 779, 784 (Ky. Ct. App. 1992) (treating rescheduled board meeting as special meeting).

To constitute an “emergency” meeting, there must be circumstances “sufficiently grave to warrant a decision to call an emergency meeting . . . Ky. Rev. Stat. 61.823(5) [which provides for alternative requirements for special meetings in the case of an emergency] may be invoked by public agencies on only the rarest of occasions, and then only when emergency conditions prevail.” 00-OMD-80. "Examples of an emergency under this definition would include, but not be limited to, occurrences such as a natural catastrophe or civil unrest. However, a determination of what constitutes an emergency is intrinsically situational, requiring a case-specific analysis directed at ascertaining whether circumstances are sufficiently serious, unexpected, and in need of immediate action to justify a suspension of the normal rules of proceeding." 00-OMD-80.

In 00-OMD-80, the Attorney General held that a community college board of directors improperly claimed its meeting was an "emergency" meeting, where it was to discuss a request that a bill be drafted, before the last date for filing new legislation in the General Assembly, to change the college's  name, reasoning that such was not "a sufficient basis for declaring that an emergency exists."  In 00-OMD-227, the Attorney General held that the Department of Insurance's Health Insurance Advisory Committee improperly characterized a meeting to discuss implementation of legislation requiring issuance of health benefit plans as an "emergency" meeting because no emergency existed on the meeting date "of the magnitude contemplated by the statute [that would otherwise] justify a suspension of the normal rules of proceeding."  In 02-OMD-91, the Attorney General disapproved of a city council's characterization of a meeting to discuss enactment of a tall structures ordinance, before the Governor signed a bill threatening the ordinance's enactment, as an "emergency" meeting, notwithstanding the council's claim of "civil unrest … resulting from opposition to the cell tower."

However, in 06-OMD-156, the Attorney General accepted the “emergency” nature of a fiscal court meeting to enact a budget before the expiration of the fiscal year. Although the delay was attributable to the fiscal court, the Attorney General found adequate proof of an imminent emergency that would result from the failure to enact a timely budget ordinance, specifically, the cessation of all vital services to the county’s citizens. Id.

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b. Notice requirements

A public agency is required to give public notice of its special meetings as soon as possible, and must post the notice in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. Ky. Rev. Stat. 61.823(4)(c).

 

The public agency must also deliver notice of the meeting to its members as well as to registered news media organization at least 24 hours before the meeting. The notice must contain the date, time, and place of the special meeting and the agenda, and discussions and action at the meeting must be limited to items listed on the agenda in the notice. Ky. Rev. Stat. 61.823(3).  A public agency may send notice via e-mail to members and media organizations that have previously filed a written request with the agency indicating that they prefer to receive notifications by e-mail. Ky. Rev. Stat. 61.823(4). There is no requirement that the news media organization must be based in Kentucky in order to file a written request for obtaining notice. See 92-OMD-1203.

If an emergency prevents the public agency from giving 24-hour notice, the public agency must make an effort to contact its members and news media organizations. The public agency must also state on the record why it could not provide the 24-hour notice:

(5) In the case of an emergency which prevents compliance with subsections (3) and (4) of this section, this subsection shall govern a public agency's conduct of a special meeting. The special meeting shall be called pursuant to subsection (2) of this section. The public agency shall make a reasonable effort, under emergency circumstances, to notify the members of the agency, media organizations which have filed a written request pursuant to subsection (4)(a) of this section, and the public of the emergency meeting. At the beginning of the emergency meeting, the person chairing the meeting shall briefly describe for the record the emergency circumstances preventing compliance with subsections (3) and (4) of this section. These comments shall appear in the minutes. Discussions and action at the emergency meeting shall be limited to the emergency for which the meeting is called.

Ky. Rev. Stat. 61.823.

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c. Minutes

Every action taken must be recorded. Ky. Rev. Stat. 61.835. If the special meeting was called without 24-hour notice, the minutes must also contain the chair person's explanation of "the emergency circumstances" that prevented such notice. Ky. Rev. Stat. 61.823(5).

Minutes of special meetings and emergency meetings are public records. See Ky. Rev. Stat. 61.835

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3. Closed meetings or executive sessions

Under the Open Meetings Act, all meetings are presumed to be open to the public unless specifically exempted by a provision of the Open Meetings Act at Ky. Rev. Stat. 61.810(1)(a) through (n).

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a. Definition

The Open Meetings Act does not specifically define the term "closed meetings" or "executive sessions." Instead, it specifies when public meetings are not open to the public. See Ky. Rev. Stat. 61.810(1).

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b. Notice requirements

Before going into closed session, a public agency must give notice in the open meeting of “the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of [Ky. Rev. Stat.] 61.810 authorizing the closed session.” Ky. Rev. Stat. 61.815(1)(a)

No matters may be discussed in a closed session "other than those publicly announced prior to convening the closed session." Ky. Rev. Stat. 61.815(1)(d).

"There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997). Discussions in closed session between Members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct which may be voided by a court. Id.

A notice which merely stated that the closed session was for discussions concerning "property and negotiations" failed to comply with the notice requirement. The notice failed to reveal whether the property was real or personal, whether the Board proposed to purchase or sell the property, and whether the publicity would affect its value. Jefferson County Bd. of Educ. v. Courier-Journal, 551 S.W.2d 25 (Ky. Ct. App. 1977); see also Reed v. City of Richmond, 582 S.W.2d 651 (Ky. Ct. App. 1979).

A court may void any action taken by a public agency if it fails to substantially comply with the notice requirements for closed meetings. See Ky. Rev. Stat. 61.848(5); Carter v. Smith, 366 S.W.3d 414 (Ky. 2012).

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c. Minutes

The Open Meetings Act directs that the minutes of "action taken at every meeting of any such public agency . . . shall be promptly recorded." Ky. Rev. Stat. 61.835. The Attorney General has opined that "the proceedings of the closed session should not be entered in the minutes except to show that the closed session was held and if a formal action was taken in the closed session." 94-OMD-110. Public agencies are prohibited from taking final action in a closed session. Ky. Rev. Stat. 61.815(1)(c).

The "minutes of a properly conducted executive or closed session of a meeting of a public agency need not be made available for public inspection or even recorded to the extent that doing so would defeat the purpose of conducting the closed session." 94-OMD-110. Minutes of an improperly conducted closed session "must be made available for inspection." See 92-ORD-1346.

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d. Requirement to meet in public before closing meeting

“Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.” Ky. Rev. Stat. 61.815(1)(a).

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e. Requirement to state statutory authority for closing meetings before closure

“Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.” Ky. Rev. Stat. 61.815(1)(a).

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f. Tape recording requirements

The Open Meetings Act does not address the audio or video recording of meetings.

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F. Recording/broadcast of meetings

The Open Meetings Act provides for the right to record and broadcast public meetings. Ky. Rev. Stat. 61.840 (“All agencies shall permit news media coverage, including but not limited to recording and broadcasting.”).

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1. Sound recordings allowed

Sound recording is allowed. See Ky. Rev. Stat. 61.840.

Although Ky. Rev. Stat. 61.840 only expressly gives the news media the right to record and broadcast a public meeting, the Attorney General has sensibly concluded that a private citizen "should be permitted to tape record a public meeting so long as that person and his or her taping equipment do not interfere with the orderly conduct of the public meeting." 96-OMD-143.

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2. Photographic recordings allowed

Photographic recordings are allowed. See Ky. Rev. Stat. 61.840.

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G. Access to meeting materials, reports and agendas

If the public agency has a written agenda for the meeting (which is required for all special meetings), the agenda is publicly available. See Ky. Rev. Stat. 61.823. In addition, public agencies are required to make publicly available the minutes of action taken at every meeting, setting forth an accurate record of votes and actions at such meetings. See Ky. Rev. Stat. 61.835. Other documents, reports, or materials pertaining to a public agency’s meetings are subject to the Open Records Act, Ky. Rev. Stat. 61.870 through 61.884.

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H. Are there sanctions for noncompliance?

In a lawsuit in which the public agency is held to have willfully violated the Open Meetings Act, the public agency is to pay "any person who prevails . . . costs, including reasonable attorney’s fees, incurred in connection with the legal action." Ky. Rev. Stat. 61.848(6). Moreover, a Circuit Court may also award the person up to $100 for every instance in which the Court finds such a violation.

In addition, “[a]ny rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of [certain provisions of the Open Meetings Act] shall be voidable by a court of competent jurisdiction.” Ky. Rev. Stat. 61.848(5).

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Kentucky’s Open Meetings Act contains various exemptions allowing public agencies to conduct certain types of meetings in closed session. See Ky. Rev. Stat. 61.810(1).

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A. Exemptions in the open meetings statute

Exemptions to the Open Meetings Act’s mandate of openness are set forth at Ky. Rev. Stat. 61.810(1)(a) through (n).

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1. Character of exemptions

The exemptions are specific in nature. Ky. Rev. Stat. 61.810(1) exempts certain categories of meetings from the requirement that they be open, but it does not explicitly require that those meetings be closed. The Attorney General has stated that the exemptions are discretionary. See 82-275. In order to go into closed session, the substance of the meeting must fall within one of the exemptions, and “[c]losed sessions may be held only after a motion is made and carried by a majority vote in open, public session.” Ky. Rev. Stat. 61.815(1)(b).

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2. Description of each exemption

Ky. Rev. Stat. 61.810(1)(a): "Deliberations for decisions of the Kentucky Parole Board;"

Ky. Rev. Stat. 61.810(1)(b): "Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency;"

A public hospital could meet in closed session to discuss sale of assets to a private purchaser because "a public discussion of the proposed purchase would likely affect the sale price of the facilities." 93-OMD-56.

The Lexington-Fayette Urban County Government violated the Open Meetings Act when it met in closed session to discuss its dispute with the state concerning the "Ben Snyder Block." 95-OMD-57. Even if the discussion concerned a sale or acquisition of property, a public discussion "would have no effect on prices of the property" which had previously been agreed upon. Id.

A board's decision to bid at an absolute auction did not fall within the Open Meeting Act’s exemption for "[d]eliberations on the future acquisition . . . of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use," because the board’s interest in bidding on the property could have been discussed in open session, giving all citizens an opportunity to discuss the idea without affecting the value of the property. Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 807 (Ky. 2017).

Ky. Rev. Stat. 61.810(1)(c): "Discussions of proposed or pending litigation against or on behalf of the public agency;"

"The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply 'any time the public agency has its attorney present' or where the possibility of litigation is still remote." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997) (quoting Jefferson County Board of Education v. The Courier-Journal, 551 S.W.2d 25 (Ky. Ct. App. 1977)).

Nonetheless, a public agency may not go into closed session to discuss litigation to which it is not a party, even though this litigation involves identical issues to litigation proposed or pending against that public agency. See 93-OMD-119.

"While a public agency may meet in a closed session to discuss proposed or pending litigation, including topics such as litigation tactics and strategy, a final decision as to whether to litigate a particular situation cannot be made in a closed session." 97-OMD-96.

An example of a meeting which did not qualify for this exception is found in Floyd County Board of Education v. Ratliff, supra. The Supreme Court held that a school board's act of going into executive session to reconsider the reorganization plan of the school district did not constitute "discussions of proposed or pending litigation against or on behalf of the public agency." Ratliff, 955 S.W.2d at 923-24.

The attorney-client privilege alone does not satisfy the requirements of this exception. 97-1.

Ky. Rev. Stat. 61.810(1)(d): "Grand jury and petit jury sessions;"

Ky. Rev. Stat. 61.810(1)(e): "Collective bargaining negotiations between public employers and their employees or their representatives;"

Ky. Rev. Stat. 61.810(1)(f): "Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee's, member's or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret;"

Under this exception, the agency must disclose whether it will be discussing the possible appointment, discipline or dismissal of personnel of that particular agency during the closed session; it cannot simply make a general reference to the exception. 97-OMD-124. See also 97-OMD-10 ("The public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.").

This exemption does not allow a general discussion concerning a school reorganization plan when it involves multiple employees. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997).

A discussion between a planning and zoning commission and a current employee as to a new employment contract falls under this exemption. See 94-OMD-63.

A school board violated the Open Meetings Act when it went into closed session to discuss the creation of a new position: "Creating a new position must be done in an open and public session while discussions as to the specific person or persons who may be selected for appointment to that position may be conducted in closed sessions." 94-OMD-106. See also 97-OMD-80 (A university's Board of Regents violated the Act when it went into closed session to discuss appointing individuals to a presidential search committee because it did not involve the appointment of employees, members or students.).

The exemption does not apply to discussions of an employee's resignation or contracts for independent contractors. Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012).

Ky. Rev. Stat. 61.810(1)(g): "Discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion or upgrading of the business;"

Once a business has publicly announced it is locating in the area, the public agency cannot invoke the exemption to close a meeting pertaining to discussions concerning that business locating in the area. 94-OMD-119.

Ky. Rev. Stat. 61.810(1)(h): "State and local cabinet meetings and executive cabinet meetings;"

Ky. Rev. Stat. 61.810(1)(i): "Committees of the General Assembly other than standing committees;"

Meeting of the House of Representatives Majority Caucus, to which all members of the Minority Caucus were also invited, constituted a meeting of the House of Representative and was not exempt as a meeting of a committee. 17-OMD-228.

Ky. Rev. Stat. 61.810(1)(j): "Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions or boards of adjustment;"

A county fiscal court is not a quasi-judicial body exempt from the Open Meetings Act. Ridenour v. Jessamine County Fiscal Court, 842 S.W.2d 532 (Ky. Ct. App.1992).

Ky. Rev. Stat. 61.810(1)(k): "Meetings which federal or state law specifically require to be conducted in privacy;"

Pursuant to this exception and the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, a University's Financial Aid Professional Judgment Committee may go into closed session to discuss financial aid appeals, 98-OMD-142, and a Housing Appeals Committee at Eastern Kentucky University is authorized to go into closed session to discuss student housing appeals. 97-OMD-139.

Ky. Rev. Stat. 61.810(1)(l): "Meetings which the Constitution provides shall be held in secret."

Ky. Rev. Stat. 61.810(1)(m): “That portion of a meeting devoted to a discussion of a specific public record exempted from disclosure under [Ky. Rev. Stat.] 61.878(1)(m). However, that portion of any public agency meeting shall not be closed to a member of the Kentucky General Assembly;”

Ky. Rev. Stat. 61.878(1)(m) exempts from the Open Records Act certain “[p]ublic records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act …”

Ky. Rev. Stat. 61.810(1)(n): “Meetings of any selection committee, evaluation committee, or other similar group established under KRS Chapter 45A or 56 to select a successful bidder for award of a state contract.”

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B. Any other statutory requirements for closed or open meetings

Various other statutes concerning specific entities make those entities' meetings confidential.

For example, under Ky. Rev. Stat. 156.557(6)(c), preliminary discussions regarding a school superintendent's annual evaluation are conducted in closed session. See 18-OMD-154.

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C. Court mandated opening, closing

There are no court-made exemptions or requirements that certain categories of meeting be open.

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III. Meeting categories - open or closed

Kentucky’s Open Meetings Act exempts certain categories of meetings and allows public agencies to conduct them in closed session. See Ky. Rev. Stat. 61.810(1)(a) through (n).

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A. Adjudications by administrative bodies

Deliberations of judicial and quasi-judicial bodies "regarding individual adjudications or appointments" are generally excluded from the provisions of the Open Meetings Act. See Ky. Rev. Stat. 61.810(1)(j). Just because an administrative body occasionally holds hearings on certain matters, does not make all of its meetings exempt from the Open Meetings Act as a quasi-judicial body. Stinson v. State Bd. of Accountancy, 625 S.W.2d 589 (Ky. Ct. App. 1981).

Disciplinary hearings of students, employees or members of a public agency are excluded from the Open Meetings Act unless the individuals being disciplined request a public hearing. Ky. Rev. Stat. 61.810(1)(f).

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1. Deliberations closed, but not fact-finding

Even if fact-finding session is open, deliberations may be closed. See Ky. Rev. Stat. 61.810(1)(j); Stinson v. State Bd. of Accountancy, 625 S.W.2d 589, 592 (Ky. Ct. App. 1981).

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2. Only certain adjudications closed, i.e. under certain statutes

If the "person involved, his representatives" or other third parties are present, the adjudication is not automatically closed. Meetings of planning commissions, zoning commissions and boards of adjustment are open. See Ky. Rev. Stat. 61.810(1)(j).

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B. Budget sessions

Open.

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C. Business and industry relations

Discussions with businesses regarding a specific proposal for the siting, retention, expansion or upgrading of the business may be closed if publicity would jeopardize the proposal. See Ky. Rev. Stat. 61.810(1)(g).

Likewise, collective bargaining negotiations may be closed. See Ky. Rev. Stat. 61.810(1)(e).

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D. Federal programs

Closed only if required by federal law. See Ky. Rev. Stat. 61.810(1)(k).

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E. Financial data of public bodies

Open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Presumptively open, but there is a possibility a meeting at which such documents were reviewed could be closed since public review of the documents is restricted by Ky. Rev. Stat. 61.878(1)(c) of the Open Records Act. See also Ky. Rev. Stat. 61.810(1)(g) (permitting closure of certain discussions concerning business siting and retention).

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G. Gifts, trusts and honorary degrees

Presumptively open.

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H. Grand jury testimony by public employees

Grand and petit jury sessions may be closed. See Ky. Rev. Stat. 61.810(1)(d).

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I. Licensing examinations

Presumptively open if a quorum of the members of a public agency are present to discuss or carry out public business [Ky. Rev. Stat. 61.810(1)], but may be closed to prevent disclosure of test questions or other examination data if the same exam is to be given again. Such records are exempt from disclosure under Ky. Rev. Stat. 61.878(1)(g) of the Open Records Act.

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J. Litigation, pending litigation or other attorney-client privileges

"Discussions of proposed or pending litigation against or on behalf of the public agency" may be closed. Ky. Rev. Stat. 61.810(1)(c); accord Fiscal Court v. Courier-Journal and Louisville Times Co., 554 S.W.2d 72 (Ky. 1977).

More than a mere remote possibility of litigation is necessary to trigger the cited exception. The statute expressly provides, however, that the litigation in question need not be currently pending and may be merely threatened. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923-24 (Ky. 1997). The attorney-client privilege alone does not satisfy the requirements of this exception. Id.

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K. Negotiations and collective bargaining of public employees

Collective bargaining negotiations may be closed. See Ky. Rev. Stat. 61.810(1)(e).

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1. Any sessions regarding collective bargaining

"Collective bargaining negotiations between public employers and their employees or their representatives" may be closed. Ky. Rev. Stat. 61.810(1)(e).

Ky. Rev. Stat. 61.810(e) does not embrace everything tangential to the topic of collective bargaining negotiations. Reports or status briefings on labor negotiations are not intended to be included under that exception. When a public agency is formulating its demands or position preparatory to collective bargaining negotiations, by deliberation or instruction of its advocates, this type of session does fall under Ky. Rev. Stat. 61.810(1)(e). See Jefferson County Bd. of Educ. v. Courier-Journal, 551 S.W.2d 25 (Ky. Ct. App. 1977).

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2. Only those between the public employees and the public body

May be closed. See Ky. Rev. Stat. 61.810(1)(e).

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L. Parole board meetings, or meetings involving parole board decisions

"Deliberations for decisions of the Kentucky Parole Board" may be closed. Ky. Rev. Stat. 61.810(1)(a). There are two other phases to parole release hearings. The victim's hearing may be closed at the discretion of the victim. Ky. Rev. Stat. 439.340(8). The interview and discussion with the prisoner must be a public session. 92-142.

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M. Patients, discussions on individual patients

No provision, except to the extent such discussions would be confidential under federal or other state law.

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N. Personnel matters

General personnel matters are not the proper subject of closed sessions. See Jefferson County Bd. of Educ. v. Courier-Journal, 551 S.W.2d (Ky. Ct. App. 1977). However, discussions concerning the "appointment, discipline or dismissal of an individual employee, member or student" may be closed. See Ky. Rev. Stat. 61.810(1)(f).

There is no distinction between the word "appointment" and "election" under Ky. Rev. Stat. 61.810(1)(f), hence, the University of Louisville Foundation Inc. could properly close a meeting to consider election of member to the position of Chairman of the Board of Trustees, since all members of the Board of Trustees were also members of the governing board of the foundation. Courier-Journal v. University of Louisville, 596 S.W.2d 374 (Ky. Ct. App. 1979).

Discussions of an employee's resignation or contracts for independent contractors are not exempt and must be conducted in public. Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012).

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1. Interviews for public employment

May be closed. See Ky. Rev. Stat. 61.810(1)(f).

A public agency must meet in an open session to discuss the qualifications of and/or negotiation strategy related to the agency's hiring of contractors. 05-OMD-148.

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2. Disciplinary matters, performance or ethics of public employees

May be closed by agency or opened at employee's request. See Ky. Rev. Stat. 61.810(1)(f).

The vote by a board of education to demote a school principal did not need to be held in public. Miller v. Board of Educ., 610 S.W.2d 935 (Ky. Ct. App. 1980).

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3. Dismissal, considering dismissal of public employees

May be closed by agency or opened at employee's request. See Ky. Rev. Stat. 61.810(1)(f).

Where a disciplinary hearing has been scheduled, the city acted improperly when it refused to grant the employee's request that the hearing be open and public. Reed v. City of Richmond, 582 S.W.2d 651 (Ky. Ct. App. 1979).

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O. Real estate negotiations

"Deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency," may be closed. Ky. Rev. Stat. 61.810(1)(b); see Bd. of Comm'rs of Danville v. Advocate Communs., 527 S.W.3d 803, 806 (Ky. 2017) (“Significantly, this section exempts ‘deliberation[],’ as opposed to ‘action taken.’”).

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P. Security, national and/or state, of buildings, personnel or other

Portion of a meeting devoted to a discussion of a specific public record exempted from disclosure under Ky. Rev. Stat. 61.878(1)(m), which exempts from the Open Records Act certain “[p]ublic records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act …”

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Q. Students, discussions on individual students

May be closed if discussion may lead to discipline or dismissal of student. See Ky. Rev. Stat. 61.810(1)(f).

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IV. Procedure for asserting right of access

The procedures for asserting the right of access under the Open Meetings Act are set forth at Ky. Rev. Stat. 61.846 & 61.848.

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A. When to challenge

Generally, challenges to Open Meetings Act violations must occur after the violation. See Ky. Rev. Stat. 61.846 and 61.848.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

There is no expedited procedure available in the Open Meetings Act regarding upcoming meetings.

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2. When barred from attending

When barred from attending an agency's public meeting, one may protest orally or in written form. However, the Open Meetings Act does not require contemporaneous objections. The Act only contemplates written complaints submitted after the fact.

A public agency violates the Open Meetings Act when it fails to make a good faith effort to handle overflow crowds because Ky. Rev. Stat. 61.840 requires that “[a]ll agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.” See 97-OMD-28.

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3. To set aside decision

Enforcement provisions are set forth in Ky. Rev. Stat. 61.846 and 61.848. "Any rule, resolution, regulation, ordinance or other formal action of a public agency without substantial compliance with the requirements of [Ky. Rev. Stat.] 61.810, 61.815, 61.820, and [Ky. Rev. Stat.] 61.823 shall be voidable by a court of competent jurisdiction." Ky. Rev. Stat. 61.848(5). See also Carter v. Smith, 366 S.W.3d 414 (Ky. 2012) (affirming trial court’s decision to void contract entered as a result of improperly closed meeting).

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4. For ruling on future meetings

A court cannot enjoin in general terms future violations of the Open Meetings Act. Fiscal Court v. Courier-Journal, 554 S.W.2d 72 (Ky. 1977). The Open Meetings Act does not specifically contemplate challenges to future meetings. However, Ky. Rev. Stat. 61.848(1) empowers Circuit Courts to enforce the Open Meetings Act “by injunction or other appropriate order on application of any person.”

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5. Other

None.

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B. How to start

The enforcement provisions of the Open Meetings Act are set forth at Ky. Rev. Stat. 61.846 and 61.848. A person bringing an Open Meetings Act challenge has the option of initiating proceedings either before the Attorney General or in Circuit Court. See Ky. Rev. Stat. 61.848(2). In either event, however, the challenger must initiate the process by making a written complaint to the presiding officer of the public agency. See Ky. Rev. Stat. 61.846(1) and 61.848(2).

The written complaint to the public agency’s presiding officer must state the circumstances which constitute an alleged violation of the Open Meetings Act and state what the public agency should do to remedy the alleged violation. Ky. Rev. Stat. 61.846(1). The public agency must respond in writing within three (3) business days. Id. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation must include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. Id.

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1. Where to ask for ruling

The Open Meetings Act provides for enforcement by allowing for appeal to the Attorney General concerning a public agency’s violation of the Act. Ky. Rev. Stat. 61.846(2). A complaining party should "forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party of the written denial." Id. The Attorney General will review the submitted materials and issue a decision within ten (10) business days. Id. The decision will state whether the public agency violated the Act. Id.

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a. Administrative forum

If a person elects administrative enforcement, that person must submit a written complaint to the presiding officer of the public agency stating the circumstances which constitute an alleged violation of the Open Meetings Act and what the public agency should do to remedy the alleged violation. Ky. Rev. Stat. 61.846(1); see 93-OMD-61 ("failure to direct the letter to the presiding officer is a mere technicality which will not prohibit the invoking of the Open Meetings Act").

The public agency must determine within three (3) business days whether to remedy the alleged violation. Within this same time period, the agency must notify in writing the person of its decision. Ky. Rev. Stat. 61.846(1). The agency's denial, in whole or part, "shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action." Id.; see also 92-OMD-1840 (demanding city's response to complaint list the specific statutes authorizing the closed meeting).

If the public agency refuses to remedy the alleged violation, the complaining party may ask the Attorney General to review the agency's decision. Ky. Rev. Stat. 61.846(2).

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b. State attorney general

To obtain the Attorney General's review of the agency's decision, the complaining party must forward a copy of the party's written complaint and a copy of the written denial to the Attorney General within 60 days after the denial was received. Ky. Rev. Stat. 61.846(2). If the agency refuses to provide a written denial, the complaining party shall provide a copy of the written complaint within 60 days from the date the written complaint was submitted to the presiding officer of the public agency. Id.

If the party does not file an appeal within 60 days, the Attorney General will refuse to hear the appeal. See 96-OMD-11 ("this office has no jurisdiction or authority to entertain the appeal and address the issues presented as it was not received within the required statutory time frame").

The complaining party may also appeal to the Attorney General if the public agency agrees to remedy an alleged violation but the complaining party believes the agency's efforts are inadequate. Ky. Rev. Stat. 61.846(3)(a).

Within ten (10) business days after receiving the written complaint and denial, if any, the Attorney General shall issue a written decision "which states whether the agency violated the provisions of [Ky. Rev. Stat.] 61.805 to 61.850. In arriving at the decision, the Attorney General may request additional documentation from the agency. On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who filed the complaint." Ky. Rev. Stat. 61.846(2).

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c. Court

The complaining party or the agency has 30 days after the Attorney General renders his or her decision to appeal the decision. Ky. Rev. Stat. 61.846(4)(a). If not timely appealed, the Attorney General's decision "shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred." Ky. Rev. Stat. 61.846(4)(b).

A complaining party has the option of bypassing the Attorney General and bringing an original action in Circuit Court. A party may not, however, simultaneously seek the Attorney General's review of a complaint while pursuing an action in Circuit Court. In such a case, the Attorney General will refuse to issue an opinion. See 93-OMD-81 ("a person cannot seek relief from this office under Ky. Rev. Stat. 61.846 when the same and additional questions are currently pending before a circuit court").

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2. Applicable time limits

There is no specific statutory deadline for submitting the written complaint to the presiding officer of the public agency. See Ky. Rev. Stat. 61.846(1). Once the public agency responds, the complaining party must request review by the Attorney General within 60 days of the public agency's response. Ky. Rev. Stat. 61.846(2). After the Attorney General issues a decision, either party has 30 days to appeal the decision by filing an action in Circuit Court.

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3. Contents of request for ruling

If the complaining party is seeking the Attorney General's review, the party must provide copies of the party's written complaint to the public agency and the agency's written denial, if any, to the party. Ky. Rev. Stat. 61.846(2).
If the public agency has agreed to remedy an alleged violation, but the efforts have been inadequate, the complaining party is required to submit the request, the denial, and a "written statement of how the public agency has failed to remedy the alleged violation." Ky. Rev. Stat. 61.846(3)(b).

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4. How long should you wait for a response

By statute, the Attorney General has ten (10) days, excluding holidays and weekends, to issue an opinion after receiving copies of the complaint and public agency’s response. Ky. Rev. Stat. 61.846(2). However, decisions are rarely rendered within 10 days. It should be noted that, in contrast, the Open Records Act provides the Attorney General with a 20-day response time, plus a 30 day extension if necessary. See Ky. Rev. Stat. 61.880(2)(a)-(b).

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5. Are subsequent or concurrent measures (formal or informal) available?

A party may appeal the decision of the Attorney General by bringing a judicial action within 30 days of the Attorney General's opinion. Ky. Rev. Stat. 61.846(4)(a). However, a party may not simultaneously seek the Attorney General's review of a complaint while pursuing an action in Circuit Court. See 93-OMD-81 ("a person cannot seek relief from this office under Ky. Rev. Stat. 61.846 when the same and additional questions are currently pending before a circuit court").

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C. Court review of administrative decision

If timely appealed, a Circuit Court may review the Attorney General’s decision under the Open Meetings Act. See Ky. Rev. Stat. 61.846(4).

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1. Who may sue?

After receiving the written response from the public agency to his or her written complaint of an alleged violation of the Open Meetings Act, a complaining party may bypass the Attorney General and proceed straight to judicial action. Ky. Rev. Stat. 61.848(2). The action is brought in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred. Ky. Rev. Stat. 61.848(1). The complaining party must file suit within 60 days from his receipt of the written denial from the public agency. Ky. Rev. Stat. 61.848(2).

Either the complaining party or the public agency may appeal the decision of the Attorney General by filing a timely action in Circuit Court. Ky. Rev. Stat. 61.848(4)(a).

The Kentucky Supreme Court has interpreted the Open Records Act to permit interested parties to intervene in Open Records Act cases, with certain limitations. See Beckham v. Board of Educ. of Jefferson County, 873 S.W.2d 575 (Ky. 1994); Lawson v. Office of the AG, 415 S.W.3d 59 (Ky. 2013). It is probable the Court would permit the same with Open Meetings Act lawsuits.

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2. Will the court give priority to the pleading?

The court is instructed to give the action priority: "Except as otherwise provided by law or rule of court, proceedings arising under this section take precedence on the docket over all other causes and shall be assigned for hearing and trial at the earliest practicable date." Ky. Rev. Stat. 61.848(4).

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3. Pro se possibility, advisability

The option is available for a litigant but not advisable, due to the complexities of the Open Meetings Act.

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4. What issues will the court address?

In an original action or timely appeal of an Attorney General open meetings decision, the court will conduct a de novo review and determine whether the public agency complied with the Open Meetings Act, and if not, whether the "rule, resolution, regulation, ordinance or other formal action of a public agency" should be voided. Ky. Rev. Stat. 61.848(3) & (5).

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a. Open the meeting

Generally, a court order instructing the agency to open its meeting is not available unless the party is aware the meeting will be closed far in advance of the meeting.

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b. Invalidate the decision

If the agency did not substantially comply with certain provisions of the Open Meetings Act, actions taken at the agency's meeting may be voided by a Circuit Court. See Ky. Rev. Stat. 61.848(5).

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c. Order future meetings open

The court may enforce agency compliance with the Open Meetings Act "by injunction or other appropriate order." Ky. Rev. Stat. 61.848(1).

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5. Pleading format

Kentucky’s Open Meetings Act does not provide for any specific pleading format. Pleading formats in Kentucky’s Circuit Courts are governed generally by the Kentucky Rules of Civil Procedure and more specifically by local rules of the various Circuits.

To receive priority on the docket the pleading should alert the Circuit Court that the lawsuit concerns the Open Meetings Act. See Ky. Rev. Stat. 61.848(4).

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6. Time limit for filing suit

If the suit is an appeal of an Attorney General opinion, it must be filed within 30 days of the Attorney General's opinion. See Ky. Rev. Stat. 61.846(4)(a). If the complaining party has chosen to bypass the Attorney General, the party must file suit within 60 days of receipt of the public agency's written denial. See Ky. Rev. Stat. 61.846(2).

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7. What court?

An appeal or an original action under the Open Meetings Act must be filed in the Circuit Court of the county where the public agency has its principal place of business or where the alleged violation occurred. Ky. Rev. Stat. 61.848(1); Ky. Rev. Stat. 61.846(4)(a).

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8. Judicial remedies available

The Circuit Court may enforce the Open Meetings Act by injunction or other appropriate order. Ky. Rev. Stat. 61.848(1). This includes the ability to void certain actions of the public agency that were taken at the illegal meeting. Ky. Rev. Stat. 61.848(5). A Circuit Court is not required to void an action, even if there was no substantial compliance with the Act. In Stinson v. State Board of Accountancy, 625 S.W.2d 589 (Ky. Ct. App. 1981), the Court chose not to void an action because the plaintiff raised no objection at the time and demonstrated no prejudice as a result of the action.

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9. Availability of court costs and attorney's fees

If the Circuit Court finds the public agency willfully violated the Open Meetings Act, the Court may, in its discretion, award "costs, including reasonable attorneys' fees, incurred in connection with the legal action." Ky. Rev. Stat. 61.848(6).

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10. Fines

Upon a finding that the public agency willfully violated the Open Meetings Act, a Circuit Court, in its discretion, may award an amount not to exceed $100 to the complaining party for each instance in which the Court finds a violation. Ky. Rev. Stat. 61.848(6). Such award will be assessed against the agency responsible for the violation. Id.

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11. Other penalties

"Any person who knowingly attends a meeting of any public agency covered by [the Open Meetings Act] of which he is a member, not held in accordance with the provisions of [the Open Meetings Act] shall be punished by a fine of not more than one hundred dollars ($100)." Ky. Rev. Stat. 61.991(1).

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D. Appealing initial court decisions

Circuit Court decisions under the Open Meetings Act are appealable to the Kentucky Court of Appeals.

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1. Appeal routes

An appeal of right is available in the Kentucky Court of Appeals.

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2. Time limits for filing appeals

The notice of appeal must be filed within 30 days of the Circuit Court's final judgment. See Ky. R. Civ. P. 73.02.

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3. Contact of interested amici

Amicus curiae may not file briefs in Kentucky’s appellate courts unless they first obtain an order from the court permitting the filing of these briefs. See Ky. R. Civ. P. 76.12(7).

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

Kentucky’s Open Meetings Act does not provide the right to comment at a public meeting.

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A. Is there a right to participate in public meetings?

There is no right to participate in a public meeting. See 98-OMD-44 ("The Open Meetings Act does not grant [members of the public] the right to participate in the meeting and address . . . members of the public agency" (citing 95-OMD-99, p. 2)).

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B. Must a commenter give notice of intentions to comment?

No provision in the Open Meetings Act concerns public comment at meetings. Some public agencies allow public comment during designated portions of public meetings, and some of those agencies require members of the public to sign in or otherwise give advance notice of their desire to make comments.

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C. Can a public body limit comment?

No provision in the Open Meetings Act deals with public comments at meetings. Generally, a public agency that allows comments from members of the public may limit the duration of such comments and may require comments to pertain to the issues addressed in the meetings. However, limiting comments based upon viewpoint of the commenter would run the risk of violating the First Amendment.

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D. How can a participant assert rights to comment?

There is no right to comment under the Open Meetings Act. Some public agencies allow public comment during designated portions of public meetings, and some of those agencies require members of the public to sign in or otherwise give advance notice of their desire to make comments. A person wishing to comment at a public meeting may consider contacting the public agency in advance to determine its policy.

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E. Are there sanctions for unapproved comment?

The Open Meetings Act does not deal with public comments at public meetings.  Ky. Rev. Stat. 61.840 provides that public agencies may condition attendance by members of the public as “required for the maintenance of order.”

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Appendix

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