1

GOVERNMENT AND THE GOVERNMENT AND THE OPEN RECORDS ACTOPEN RECORDS ACT

KRS 61.870 – 884KRS 61.870 – 884(Commonly Known As (Commonly Known As “THE SUNSHINE LAW”“THE SUNSHINE LAW”

PREAMBLE TO THE OPEN PREAMBLE TO THE OPEN RECORDS ACTRECORDS ACT

2

Government is the servant of the Government is the servant of the people and not the master of them people and not the master of them and access to information concerning and access to information concerning the conduct of the people’s business the conduct of the people’s business is a fundamental and necessary right is a fundamental and necessary right of every citizen in the of every citizen in the Commonwealth of Kentucky.Commonwealth of Kentucky.

3

KRS 61.872(1)KRS 61.872(1)

All Public Records shall be open for All Public Records shall be open for inspection by any person, except as inspection by any person, except as otherwise provided by the Act. otherwise provided by the Act.

4

PURPOSE AND CONSTRUCTION PURPOSE AND CONSTRUCTION OF OPEN RECORDS ACTOF OPEN RECORDS ACT

““The public’s ‘right to know’ under the Open The public’s ‘right to know’ under the Open Records Act is premised upon the public’s right to Records Act is premised upon the public’s right to expect its agencies properly to execute their expect its agencies properly to execute their statutory functions. In general, inspection of statutory functions. In general, inspection of records may reveal whether the public servants records may reveal whether the public servants are indeed serving the public, and the policy of are indeed serving the public, and the policy of disclosure provides impetus for an agency disclosure provides impetus for an agency steadfastly to pursue the public good.”steadfastly to pursue the public good.”

Kentucky Board of Examiners v. CourierKentucky Board of Examiners v. Courier Journal and Louisville Times Co. Journal and Louisville Times Co.

““[T]he statute exhibits a general bias favoring [T]he statute exhibits a general bias favoring disclosure … And all exceptions must be strictly disclosure … And all exceptions must be strictly construed.”construed.”

Kentucky Board of ExaminersKentucky Board of Examiners

5

THE KENTUCKY OPEN THE KENTUCKY OPEN RECORDS ACT RECORDS ACT

KRS 61.870 – 61.884KRS 61.870 – 61.884

[T]he basic policy of KRS 61.870 to 61.884 is [T]he basic policy of KRS 61.870 to 61.884 is that free and open examination of public that free and open examination of public records is in the public interest and the records is in the public interest and the exceptions provided for by KRS 61.878 or exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly otherwise provided by law shall be strictly construed, construed,

even though such examination may even though such examination may cause inconvenience or cause inconvenience or embarrassment to public officials or embarrassment to public officials or others. others.

6

PUBLIC RECORDSPUBLIC RECORDS

All books, papers, maps, photographs, cards, All books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form other documentation regardless of physical form or characteristics, which are prepared, owned, or characteristics, which are prepared, owned, used, in the possession of or retained by a used, in the possession of or retained by a PUBLIC AGENCYPUBLIC AGENCY. “Public record” shall not . “Public record” shall not include any records owned or maintained by or include any records owned or maintained by or for a body referred to in subsection (1)(h) of this for a body referred to in subsection (1)(h) of this section that are not related to functions, section that are not related to functions, activities, programs, or operations funded by activities, programs, or operations funded by state or local authority. state or local authority.

KRS 61.870(2)KRS 61.870(2)

7

WHAT CONSTITUTES A PUBLIC AGENCYWHAT CONSTITUTES A PUBLIC AGENCY

KRS 61.870(1)KRS 61.870(1) Every state or local government officer; Every state or local government officer;

department, division, bureau, board, commission, department, division, bureau, board, commission, authority; legislative board, commission, authority; legislative board, commission, committee, court or judicial agency;committee, court or judicial agency;

Any body created by state of local authority or Any body created by state of local authority or which derives at least twenty-five percent (25%) which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;of Kentucky from state or local authority funds;

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

8

Any entity where the majority of its governing Any entity where the majority of its governing body is appointed by a public agency; by a body is appointed by a public agency; by a member or employee of a public agency;member or employee of a public agency;

Any board, commission, committee, Any board, commission, committee, subcommittee, ad hoc committee, advisorysubcommittee, ad hoc committee, advisory

Committee, council or agency established, Committee, council or agency established, created, and controlled by a public agency;created, and controlled by a public agency;

Any interagency body of two (2) or more public Any interagency body of two (2) or more public agenciesagencies

9

GENERAL REQUIREMENTS FOR GENERAL REQUIREMENTS FOR PUBLIC AGENCYPUBLIC AGENCY

Suitable FacilitiesSuitable Facilities

Time for Inspection/Mailing Copies Time for Inspection/Mailing Copies

Official CustodianOfficial Custodian

Rules and RegulationsRules and Regulations

10

PROCEDURESPROCEDURES

REQUEST TO INSPECT RECORDSREQUEST TO INSPECT RECORDS Written ApplicationWritten Application Directed to Official CustodianDirected to Official Custodian Signed by Requestor and with name Signed by Requestor and with name

printed legiblyprinted legibly Describing Records Describing Records

11

RESPONSE TO REQUESTRESPONSE TO REQUEST Written ResponseWritten Response Within Within three (3) business daysthree (3) business days If Request will be honored, a statement that If Request will be honored, a statement that

Agency will complyAgency will comply If Request denied, citation to specific If Request denied, citation to specific

exception and brief explanationexception and brief explanation Issued by Official Custodian, or under his\her Issued by Official Custodian, or under his\her

authorityauthority

12

COPYING CHARGESCOPYING CHARGES

Nonexempt Records Used for Non-commercial Nonexempt Records Used for Non-commercial PurposePurpose

Actual cost including medium and mechanical processingActual cost including medium and mechanical processing

Not including staff costsNot including staff costs

Nonexempt Records used for Commercial PurposeNonexempt Records used for Commercial Purpose

Cost to agency of medium, mechanical processing, Cost to agency of medium, mechanical processing, and and staffstaff

Cost to agency of creation, purchase, or other acquisition of Cost to agency of creation, purchase, or other acquisition of the recordsthe records

13

COMMERCIAL PURPOSECOMMERCIAL PURPOSE

The direct or indirect use of any part of a public record or The direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a lease of a service, or any use by which the user expects a profit either through commission, salary, or fee. profit either through commission, salary, or fee.

EXCLUDESEXCLUDESPublication by newspaper or periodicalPublication by newspaper or periodical

Use by radio or television station in its news or Use by radio or television station in its news or informational programsinformational programs

Use in preparation of litigation, claims settlement, or by Use in preparation of litigation, claims settlement, or by attorneys representing partiesattorneys representing parties

14

UNREASONABLE BURDENUNREASONABLE BURDEN(KRS 61.872(6)(KRS 61.872(6)

If the application places an If the application places an unreasonableunreasonable burden in producing public records or if the burden in producing public records or if the custodian has reason to believe that custodian has reason to believe that repeatedrepeated requests are intended to disrupt other essential requests are intended to disrupt other essential functions of the public agency, the official functions of the public agency, the official custodian may refuse to permit inspection of the custodian may refuse to permit inspection of the public records or mail copies thereof. public records or mail copies thereof. However, However, refusal under this section shall be sustained refusal under this section shall be sustained by clear and convincing evidence. by clear and convincing evidence.

15

COMMONLY CITED COMMONLY CITED EXCEPTIONSEXCEPTIONS

KRS 61.878(1)(a)KRS 61.878(1)(a) – public records containing information – public records containing information of a personal nature …of a personal nature …

KRS 61.878(1)(h)KRS 61.878(1)(h) – records of law enforcement agencies – records of law enforcement agencies or agencies involved in administrative adjudications … or agencies involved in administrative adjudications …

KRS 61.878(1)(i)KRS 61.878(1)(i) – preliminary drafts, notes, – preliminary drafts, notes, correspondence with private individuals …correspondence with private individuals …

KRS 61.878(1)(j)KRS 61.878(1)(j) – preliminary recommendations, and – preliminary recommendations, and preliminary memoranda…preliminary memoranda…

KRS 61.878(1)(l)KRS 61.878(1)(l) – public records or information made – public records or information made confidential by enactment of the General Assembly …confidential by enactment of the General Assembly …

16

HOMELAND SECURITY EXEMPTIONHOMELAND SECURITY EXEMPTIONKRS 61.878(m)KRS 61.878(m)

Permit public agency to deny inspection of certain records Permit public agency to deny inspection of certain records when the disclosure of that record would have a reasonable when the disclosure of that record would have a reasonable likelihood of threatening the public safety by exposing a likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act and limited to: responding to a terrorist act and limited to:

Infrastructure records that expose location, configuration, or Infrastructure records that expose location, configuration, or security of critical systems, including public utilities;security of critical systems, including public utilities;

Detailed drawings, schematics, maps or specifications of Detailed drawings, schematics, maps or specifications of structural elements…floor plans…ofstructural elements…floor plans…of

Any building or facility owned, occupied, leased, or Any building or facility owned, occupied, leased, or maintained by a public agency;maintained by a public agency;

17

TERRORIST ACTTERRORIST ACT

Criminal Act intended to:Criminal Act intended to:

Intimidate or coerce a public agency …;Intimidate or coerce a public agency …;

Disrupt a system including but not limited to Disrupt a system including but not limited to electrical, fire suppression, water, wastewater, electrical, fire suppression, water, wastewater, sewage, and gas systems;sewage, and gas systems;

Cause massive destruction to a building or Cause massive destruction to a building or facility owned, occupied, leased, or maintained facility owned, occupied, leased, or maintained by a public agency;by a public agency;

18

KRS 61.878(4)KRS 61.878(4)Duty to RedactDuty to Redact

If any public record contains material If any public record contains material which is not excepted under this which is not excepted under this section, the public agency shall section, the public agency shall

separate the excepted and make the separate the excepted and make the non-excepted material available for non-excepted material available for

examinationexamination

19

REQUIREMENTS IF REQUIREMENTS IF DOCUMENTS WITHHELDDOCUMENTS WITHHELD

On the same day that a public agency denies a On the same day that a public agency denies a request to inspect a public record for a reason request to inspect a public record for a reason identified above, that public agency shallidentified above, that public agency shall

Forward a copy of the written denial of the Forward a copy of the written denial of the request to the executive director of the Office for request to the executive director of the Office for Security Coordination and the Attorney GeneralSecurity Coordination and the Attorney General

NOTE: The homeland security exemption shall NOTE: The homeland security exemption shall not apply when a member of the Kentucky not apply when a member of the Kentucky General Assembly seeks to inspect a public General Assembly seeks to inspect a public record. record.

20

ROLE OF THE ATTORNEY ROLE OF THE ATTORNEY GENERALGENERAL

Appeal to Attorney General/Circuit CourtAppeal to Attorney General/Circuit Court

NotificationNotification

Request for Additional Documentation/Disputed DocumentsRequest for Additional Documentation/Disputed Documents

Burden of ProofBurden of Proof

Decision Stating Whether Agency Violated Open Records Decision Stating Whether Agency Violated Open Records Act Act

Appeal of Attorney General’s Decision within Thirty DaysAppeal of Attorney General’s Decision within Thirty Days

21

TROUBLESHOOTINGTROUBLESHOOTING RE-EXAMINATION OF EXISTING POLICIESRE-EXAMINATION OF EXISTING POLICIES

DESIGNATION OF CUSTODIAN OF RECORD RULES DESIGNATION OF CUSTODIAN OF RECORD RULES AND AND REGULATIONS REGULATIONS

OPEN RECORDS POLICYOPEN RECORDS POLICY PROCEDURAL AND SUBSTANTIVE COMPLIANCEPROCEDURAL AND SUBSTANTIVE COMPLIANCE

TIMELINESSTIMELINESS CONTENTCONTENT PARTICULARIZED AND DETAILED RESPONSESPARTICULARIZED AND DETAILED RESPONSES

Edmondson v. AligEdmondson v. Alig EDUCATIONEDUCATION

AWARENESSAWARENESS RESOURCESRESOURCES

OUTLINES AND BROCHURESOUTLINES AND BROCHURES WEBSITE: WEBSITE: www.ag.ky.govwww.ag.ky.gov Attorney General (502) 696-5664Attorney General (502) 696-5664

22

THE ENDTHE END