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Kentucky Open Records Act helps insure transparent and open government

By JIM BROOKS
Nelson County Gazette / WBRT Radio

Monday, May 14, 2018 — Every election cycle it is common that we hear candidates talking about insuring “open and transparent government.”

But candidates for office aren’t the only ones who can promise transparent government — you can do your part to investigate local government payrolls, expenditures and other activities.

You can do this via the Kentucky Open Records Act. The Open Records Act requires public agencies to allow citizens to request and examine the records of any public agency — with some exceptions.

According to state law, every agency is required to adopt rules and regulations regarding how it handles Open Records requests. The rules and regulations must include:

— the principal office of the public agency and its regular office hours;

— the title and address of the official custodian of record;

— the fees charged for copies;

— the procedures to be followed in requesting public records.

RULES MUST BE PUBLICLY POSTED. Every public agency is required to display their Open Records rules and regulations “in a prominent location which is accessible to the public.”

If you do not see an agency’s rules and regulations, you should ask them about them. I have been told that some public agencies in the county do not have their Open Records guidelines posted.

These agencies may not be aware of the legal requirement to have their Open Records procedures posted in a prominent location (for what its worth, I don’t think “prominent location” means hiding the regulations in a file cabinet, desk drawer or in a folder on someone’s desk. Just sayin’). If you don’t see them posted, please ask.

The law states that an agency has three working days to respond to your records request. If there will be a delay responding to your request, agencies typically will contact you to let you know.

There’s no cost to file a records request, and there’s no file to inspect the records in person. Copies of the files will cost 10 cents per page, or 40 cents per CD-ROM.

If you do not have a response in three working days (this excludes Saturdays and Sundays), don’t assume the agency is ignoring your request. Contact them to be sure your request was received, particularly if you emailed or faxed it.

But if they don’t respond in three days, you have the option of complaining to the Kentucky Attorney General’s Office. In my years of submitting these requests, I have never had an agency not respond in the given time without being contacted about a possible delay.

A word of caution is appropriate here: There is a difference between a record and the story behind the record. Sometimes the record you request may not tell the story you might think it does. If you aren’t sure what the record says, you can ask for clarification, but be aware that the record custodian — the person you filed the request with — may not know more about the record you requested than you do.

EXEMPTIONS. You should be aware that there are a dozen exemptions to the Open Records Act that allow agencies to exempt certain records from public inspection. Those exemptions are codified at KRS 61.878(1) include:

— records containing information of a personal nature if disclosure would constitute a clearly unwarranted invasion of personal privacy;

— records confidentially disclosed to an agency and compiled and maintained for scientific research;

— records confidentially disclosed to an agency or required by the agency to be disclosed to it which are generally recognized as confidential or proprietary and which if disclosed would permit an unfair commercial advantage to competitors;

— records that relate to the prospective location of a business or industry which has not previously disclosed that it is interested in locating, relocating, or expanding in Kentucky;

— records developed by an agency in conjunction with the regulation or supervision of financial institutions which reveal the agency’s internal examining or audit criteria;

— real estate appraisals, engineering or feasibility estimates, and evaluations made by or for a public agency, in the course of acquiring property, until all of the property has been acquired;

— 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;

— records of law enforcement agencies or agencies involved in administrative adjudication if disclosure of the records would harm the agency by premature release (such records may be inspected after enforcement action is completed or a decision is made to take no action, unless they were
compiled and maintained by a county or Commonwealth’s attorney or unless another exception applies);

— preliminary documents including drafts, notes, correspondence with private individuals, recommendations, and memoranda in which opinions are expressed or policies formulated;

— public records that are prohibited from disclosure by state or federal law;

— 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, as defined in the exemption, and limited to eight precisely described categories of records; and

– records having historic, literary, artistic, or commemorative value that are accepted by the archivist of a public university, museum, or government depository from a donor or depositor other than a public agency if nondisclosure is requested in writing by the donor or depositor.

For more information on the Kentucky Open Records Act, you can download the latest copy of the “Your Duty Under the Law: The Kentucky Open Records and Open Meetings Acts” by clicking here.

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