TITLE VIII OFFICES AND OFFICERS CHAPTER 61 GENERAL PROVISIONS AS TO OFFICES AND OFFICERS; SOCIAL SECURITY FOR PUBLIC EMPLOYEES; EMPLOYEES RETIREMENT SYSTEM SUBCHAPTER OPEN RECORDS KRS Ann. @ 61.870 (BALDWIN) @ 61.870 Definitions As used in KRS 61.872 to 61.884, unless the context requires otherwise: (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 derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds; (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; (2) "Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials 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; (3) "Official custodian" means 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, regardless of whether such records are in his actual personal custody and control; and (4) "Custodian" means the official custodian or any authorized person having personal custody and control of public records. HISTORY: 1992 c 163, @ 2, eff. 7-14-92 1986 c 150, @ 2; 1976 c 273, @ 1 Note: 1982 c 393, @ 50(5), eff. 7-15-82, directs that "department for human resources" be changed to "cabinet for human resources." Note: 1982 c 393, @ 50(1), eff. 7-15-82, directs that "department of justice" be changed to "justice cabinet." Note: 1982 c 82, @ 52, eff. 7-15-82, directs that "energy regulatory commission and/or utility regulatory commission" be changed to "public service commission." Note: 1982 c 393, @ 50(4), eff. 7-15-82, directs that "department of transportation" be changed to "transportation cabinet." NOTES: CROSS REFERENCES Duties of local emergency planning committees; open records, 39.840 Reports available to public; protection of trade secrets, 39.900 Office of city clerk required except in first class city, duties, 83A.085 Property tax roll as open public record in office of property valuation administrator for five years, 133.047 Kentucky horse park commission, 148.270 Personnel files of department for adult and technical education, 151B.045 Documents of Kentucky Center for the Arts Corporation as public records, 153.430 East Kentucky corporation deemed public agency, 154.33-515 Turnpike authority, audit as public record, 175.580 Bureau of highways, audit as public record, 177.530 Health care data commission, private data, 216.283 Health and geriatric authority, audit as public record, 216.847 Kentucky thoroughbred register shall be public record open to inspection, 230.400 Transportation cabinet registration records are public, 235.160 Health maintenance organizations; applications, filings, and reports are public documents, 304.38-170 Local correctional facilities construction authority, audits to be public records, 441.695 LEGAL ENCYCLOPEDIAS AND ALR State Freedom of Information Acts. 66 Am Jur 2d, Records and Recordings Laws @ 46.14 to 46.19 Admissibility, under public records exception to hearsay rule, of record kept by public official without express statutory direction or authorization. 80 ALR3d 414 What "records" of agency which must be available under state Freedom of Information Act. 27 ALR4th 680 What constitutes an agency subject to application of state Freedom of Information Act. 27 ALR4th 742 NOTES ON DECISIONS AND OPINIONS 1. Public agency 2. Public records 3. Custodian 1. Public agency 834 SW(2d) 681 (Ky 1992), Frankfort Publishing Co v Kentucky State University Foundation, Inc. The obvious purpose of the open records law is to make available for public inspection all records in the custody of public agencies by whatever label they have at the moment, and punctuation alone is not a proper basis for ascertaining legislative intent; therefore, the phrase "or agency thereof" in KRS 61.870(1) is applicable to all units of government listed before it in the same subsection, and it is clear that the Kentucky state university foundation is a public agency subject to the Open Records Act. 696 SW(2d) 325 (Ky App 1985), Friend v Rees. A reformatory is a "public agency" within the meaning of the open records law, and a prisoner has the right to obtain a copy of his account record at the reformatory so long as he pays a reasonable copying fee. KRS Ann. @ 61.871 (BALDWIN) @ 61.871 Policy of KRS 61.870 to 61.884; strict construction of exceptions of KRS 61.878 The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others. HISTORY: :1992 c 163, @ 1, eff. 7-14-92 Note: 1982 c 393, eff. 7-15-82, changes "department of finance and administration" and "department of finance" to "finance and administration cabinet." Note: 1982 c 393, @ 50(5), eff. 7-15-82, directs that "department for human resources" be changed to "cabinet for human resources." Note: 1982 c 393, @ 50(1), eff. 7-15-82, directs that "department of justice" be changed to "justice cabinet." Note: 1982 c 82, @ 52, eff. 7-15-82, directs that "energy regulatory commission and/or utility regulatory commission" be changed to "public service commission." Note: 1982 c 393, @ 50(4), eff. 7-15-82, directs that "department of transportation" be changed to "transportation cabinet." KRS Ann. @ 61.872 (BALDWIN) @ 61.872 Right to inspection; limitation (1) All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No person shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record. (2) Any person shall have the right to inspect public records. The 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. The application shall be hand delivered, mailed, or sent via facsimile to the public agency. (3) A person may inspect the public records: (a) During the regular office hours of the public agency; or (b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. (4) If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him. (5) If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately so notify the applicant and shall designate a place, time and date, for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection. (6) If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence. HISTORY: 1992 c 163, @ 3, eff. 7-14-92 1976 c 273, @ 2 Penalty: 61.991(2) NOTES: CROSS REFERENCES Legislative ethics code, prohibition against disclosure or use of confidential information, 6.734 Personnel department records subject to open records law, 18A.020 State personnel board, organization, meetings, 18A.070 Corporate powers of Kentucky horse park management board, 148.270 Terms of contract for private operation of adult correctional facility; all documents and records deemed public records, 197.510 Induced termination of pregnancy required to be reported to office of vital statistics, 213.101 Long-term care facilities, public inspection of cabinet for human resources inspection reports, 216.547 Natural resources and environmental protection cabinet, records open to public inspection, exceptions, 224.10-210 Fire inspections, investigations and losses, records open to public, exceptions, 227.260 Insurance department records open to public inspection, 304.2-150 Explosives used in reclamation of strip-mined land, records available for public inspection, 350.430 Access of public records by electronic data processing procedures, general provisions, 1 KAR 5:010 Access to public records, general rules, 5 KAR 1:010, 20 KAR 1:010, 200 KAR 1:020 Inspection of escheated property records, 103 KAR 8:050 Confidentiality of records or information furnished to or obtained by the natural resources and environmental protection cabinet, 400 KAR 1:060 Public inspection of oil shale records, exceptions, 405 KAR 30:150 Inspection of criminal history record information by record subject, 502 KAR 30:070 LEGAL ENCYCLOPEDIAS AND ALR Conditions and restrictions as to inspection as records. 66 Am Jur 2d, Records and Recordings Laws @ 14 State Freedom of Information Acts. 66 Am Jur 2d, Records and Recordings Laws @ 46.14 to 46.19 Payroll records of individual government employees as subject to disclosure to public. 100 ALR3d 699 What constitutes preliminary drafts or notes provided by or for state or local governmental agency, or intra-agency memorandums, exempt from disclosure or inspection under state freedom of information acts. 26 ALR4th 639 What constitutes personal matters exempt from disclosure by invasion of privacy exemption under state freedom of information act. 26 ALR4th 666 What are "records" of agency which must be made available under state freedom of information act. 27 ALR4th 680 What constitutes an agency subject to application of state freedom of information act. 27 ALR4th 742 What constitutes "trade secrets" exempt from disclosure under state Freedom of Information Act. 27 ALR4th 773 NOTES ON DECISIONS AND OPINIONS 1. Public records open for inspection; facilities; removal of records 2. Inspection during office hours; written application 3. Custody of records; notification of name and location of custodian 4. Records in active use, storage or unavailable; notice of availability 5. Request for voluminous records; disruption of agency 1. Public records open for inspection; facilities; removal of records 7 Nor Ky L Rev 7 (1980). The Kentucky Open Records Act: A Preliminary Analysis, Edward H. Ziegler, Jr. 40 Ad L Rev 79 (Winter 1988). The Federal Presentence Investigation Report: Postsentence Disclosure Under The Freedom Of Information Act, Carol Shockley. 40 Ad L Rev 1 (Winter 1988). Freedom Of Information Act Dispute Resolution, Mark H. Grunewald. 50 Ohio St L J 1307 (1989). De Novo Review in Reverse Freedom of Information Act Suits, Comment. 492 US 136, 109 SCt 2841, 106 LEd(2d) 112 (1989), United States Justice Dept v Tax Analysts. Publishing company employees wanting to obtain all United States district court tax opinions and final orders involving the tax division of the department of justice, who have become frustrated with the difficulty of obtaining copies of cases from court clerks, have a right under the Freedom of Information Act, 5 USC 552(a)(4)(B), to obtain copies from the tax division since the copies are "agency records" subject to disclosure, notwithstanding the fact they are also available from their original sources, the courts, and because the papers fall within none of the statute's exemptions. KRS Ann. @ 61.874 (BALDWIN) @ 61.874 Abstracts, memoranda, copies; agency may prescribe fee (1) Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all written public records. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee, including postage where appropriate. If the applicant desires copies of public records other than written records, the custodian of the records shall permit the applicant to duplicate the records; however, the custodian may ensure that such duplication will not damage or alter the records. (2) The public agency may prescribe a reasonable fee for making copies of public records which shall not exceed the actual cost not including the cost of staff required. HISTORY: 1992 c 163, @ 4, eff. 7-14-92 1976 c 273, @ 3 Penalty: 61.991(2) NOTES: CROSS REFERENCES Emergency response commission, reproduction of reports, availability to public, reasonable fee, 39.900 Rules applicable in the administration of all taxes under jurisdiction of Revenue Cabinet, 131.081 Driving history record; fee, 601 KAR 12:040 LEGAL ENCYCLOPEDIAS AND ALR Conditions and restrictions as to inspection of records; fees. 66 Am Jur 2d, Records and Recordings Laws @ 14 NOTES ON DECISIONS AND OPINIONS 7 Nor Ky L Rev 7 (1980). The Kentucky Open Records Act: A Preliminary Analysis, Edward H. Ziegler, Jr. 696 SW(2d) 325 (Ky App 1985), Friend v Rees. A reformatory is a "public agency" within the meaning of the open records law, and a prisoner has the right to obtain a copy of his account record at the reformatory so long as he pays a reasonable copying fee. KRS Ann. @ 61.876 (BALDWIN) @ 61.876 Agency to adopt rules and regulations (1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to: (a) The principal office of the public agency and its regular office hours; (b) The title and address of the official custodian of the public agency's records; (c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies; (d) The procedures to be followed in requesting public records. (2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public. (3) The Finance and Administration Cabinet may promulgate uniform rules and regulations for all state administrative agencies. HISTORY: 1976 c 273, @ 4, eff. 6-19-76 Penalty: 61.991(2) NOTES: CROSS REFERENCES Long-term care facilities, public inspection of cabinet for human resources inspection reports, 216.547 Access of public records by electronic data processing procedures, general provisions, 1 KAR 5:010 Access to public records, general rules, 5 KAR 1:010, 20 KAR 1:010, 200 KAR 1:020 Requirements for conducting oil shale exploration, 405 KAR 30:121 Procedures for records requests, 701 KAR 5:035 LEGAL ENCYCLOPEDIAS AND ALR Conditions and restrictions as to inspection of records; fees. 66 Am Jur 2d, Records and Recordings Laws @ 14 NOTES ON DECISIONS AND OPINIONS KRS Ann. @ 61.878 (BALDWIN) @ 61.878 Certain public records exempted from inspection except on order of court; restriction of state employees to inspect personnel files prohibited (1) The following public records are excluded from the application of KRS 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: (a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy; (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; (c) 1. Records confidentially disclosed to an agency, 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, and which are compiled and maintained: a. In conjunction with an application for a loan; b. 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 c. For the grant or review of a license to do business. 2. The exemptions provided for in subparagraph 1. of this paragraph shall not apply to records the disclosure or publication of which is directed by another statute; (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; (e) The 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. The law of eminent domain shall not be affected by this provision; (f) 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; (g) 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 KRS 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 KRS 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 KRS 61.870 to 61.884; (h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; (i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended; (j) All public records or information the disclosure of which is prohibited by federal law or regulation; and (k) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. (2) No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person. (3) No exemption in this section shall be construed to deny, abridge or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. A public agency employee, including university employees, applicant or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency. (4) If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination. (5) The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function. HISTORY: 1992 c 163, @ 5, eff. 7-14-92 1986 c 494, @ 24; 1976 c 273, @ 5 Penalty: 61.991(2) NOTES: CROSS REFERENCES Legislative research commission, power to secure information, 7.110 Contract for services of executioner, identity of individual not public record, 45A.720 Records of lottery corporation deemed open; exceptions, 154A.040 Annual report of managing firm of Commonwealth venture fund, 154.20-390 Restrictions on access to inmate records, 197.025 Access to public records, general rules, 20 KAR 1:010, 200 KAR 1:020 Public inspection of oil shale records, exceptions, 405 KAR 30:150 Inspection of criminal history record information by record subject, 502 KAR 30:070 LEGAL ENCYCLOPEDIAS AND ALR State Freedom of Information Acts. 66 Am Jur 2d, Records and Recordings Laws @ 46.14 to 46.19 Validity, construction, and application of statutory provisions relating to public access to police records. 82 ALR3d 19 Restrictions of public access to judicial records of state courts. 84 ALR3d 598 Confidentiality of proceedings or reports of judicial inquiry board or commission. 5 ALR4th 730 What constitutes preliminary drafts or notes provided for by or for states or local governmental agency, or intra-agency memorandums, exempt from disclosure or inspection under state Freedom of Information Acts. 26 ALR4th 639 What constitutes personal matters exempt from disclosure by invasion of privacy exemption under state freedom of information act. 26 ALR4th 666 NOTES ON DECISIONS AND OPINIONS 1. In general 2. Exceptions to Open Records Provisions a. In general b. Personal information; invasion of personal privacy c. Records confidentially disclosed d. Prospective location of business e. Records relative to acquisition of property f. Test information g. Records of law enforcement agencies; administrative adjudication h. Preliminary drafts, notes, correspondence with private individuals i. Preliminary recommendations and memoranda j. Disclosure prohibited by federal law or regulation k. Disclosure prohibited by enactment of general assembly 3. Disclosure of statistical information not prohibited 4. State employees' and applicants' right to inspect personnel records 5. State agencies' duty to separate excepted and non-excepted material 6. Exchange of records between state agencies 1. In general 71 Ky L J 853 (1982-1983). Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, Note. 7 Nor Ky L Rev 7 (1980). The Kentucky Open Records Act: A Preliminary Analysis, Edward H. Ziegler, Jr. 826 SW(2d) 324 (Ky 1992), Kentucky Bd of Examiners of Psychologists v Courier-Journal & Louisville Times Co. The public's "right to know" under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions, and inspection of records may reveal whether the public servants are indeed serving the public while the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. OAG 92-126. A city properly denies a request for a settlement agreement adopted as a judgment of a court in its order of dismissal; because the court ordered that the terms of the agreement remain confidential, the city is required to withhold it out of deference to the judicial process. 2. Exceptions to Open Records Provisions a. In general 830 SW(2d) 373 (Ky 1992), University of Kentucky v Courier-Journal & Louisville Times Co. A self-critical analysis privilege which would exempt from disclosure self-evaluative documents does not exist under the Open Records Act to allow a university to exempt from disclosure its official response to the national collegiate athletic association's (NCAA) allegations of rule violations since (1) any common law regarding access to records maintained by public agencies was codified and preempted by the general assembly's passage of the act; (2) even those courts which recognize the self-critical analysis privilege apply the privilege in the context of discovery in civil cases, not in the context of disclosure of public records; and (3) even if self-critical analysis privilege did exist, the university waived the privilege by releasing the response to the NCAA, a private entity. b. Personal information; invasion of personal privacy 71 Ky L J 853 (1982-1983). Out of the Sunshine and into the Shadows: Six Years of Misinterpretation of the Personal Privacy Exemption of the Kentucky Open Records Act, Note. 830 SW(2d) 373 (Ky 1992), University of Kentucky v Courier-Journal & Louisville Times Co. A state university's official response to the national collegiate athletic association's (NCCA) allegations concerning rule violations by the university related to university athletic staff members' sending $1,000 in cash to an out-of-state basketball recruit is not exempt from disclosure under KRS 61.878(1)(a); the response, which contained (1) the university's admission or denial of each NCAA allegation, (2) information supplied by the university under the heading of "Summary of Evidence Supporting Response," and (3) a compilation of the evidence gathered by the university in support of its response, and for which the university paid a private law firm over $400,000 to prepare, represents a legitimate inquiry into the operation of an agency of the Commonwealth, and the contents of the response are a matter of public interest the release of which would not constitute a clearly unwarranted invasion of personal privacy. 826 SW(2d) 324 (Ky 1992), Kentucky Bd of Examiners of Psychologists v Courier-Journal & Louisville Times Co. KRS 61.878(1)(a) reveals an unequivocal legislative intention that certain records, albeit they are "public", are not subject to inspection, because disclosure would be a clearly unwarranted invasion of personal privacy; the language of (1)(a) reflects a public interest in privacy, and the statute exhibits a general bias favoring disclosure, placing the burden of proving exempt status on the agency which would withhold records and all exceptions must be strictly construed. 826 SW(2d) 324 (Ky 1992), Kentucky Bd of Examiners of Psychologists v Courier-Journal & Louisville Times Co. KRS 61.878 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, and given the privacy interest on one hand and on the other, the general rule of inspection and its underlying policy of openness for the public good, the only available mode of decision is by comparative weighing of the antagonistic interests. 826 SW(2d) 324 (Ky 1992), Kentucky Bd of Examiners of Psychologists v Courier-Journal & Louisville Times Co. Client complaints alleging sexual improprieties by a psychologist and the clients' and doctor's depositions are within the exception from disclosure in KRS 61.878(1)(a), since the information in the complaint file is of a very personal nature and the disclosure of the public record would constitute a serious invasion of the personal privacy of those who complained against the psychologist and other former clients; the purpose of the policy of disclosure is to subserve the public interest, not to satisfy the public's curiosity, and where the board of examiners of psychologists has effectively promoted the public interest in regulation and the countervailing public interest in personal privacy is strongly substantiated, further disclosure would be a clearly unwarranted invasion of privacy. 625 SW(2d) 109 (Ky App 1981), Fayette County Bd of Ed v Lexington-Fayette Urban County Human Rights Comm. There is no unqualified right for one governmental agency to demand or to examine the total personnel files of another governmental agency. A court shall ultimately determine whether certain withheld material is pertinent to a pending litigation. 830 SW(2d) 373 (Ky 1992), University of Kentucky v Courier-Journal & Louisville Times Co. A state university's official response to the national collegiate athletic association's (NCAA) allegations concerning rule violations by university athletic staff members in sending $1,000 in cash to an out-of-state basketball recruit is not exempt under KRS 61.878(1)(f) since that exemption applies only to law enforcement agencies or agencies involved in administrative adjudication; the university itself conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication" and the exemption does not apply after enforcement action is complete or a decision is made to take no action. 637 SW(2d) 658 (Ky App 1982), Louisville v Courier-Journal & Louisville Times Co. Louisville police department's internal affairs files are exempt from public inspection as being preliminary in nature under the Kentucky open records law. 830 SW(2d) 373 (Ky 1992), University of Kentucky v Courier-Journal & Louisville Times Co. A state university's official response to the national collegiate athletic association's (NCAA) allegations concerning rule violations by university athletic staff members in sending $1,000 in cash to an out-of-state basketball recruit is not exempt under KRS 61.878(1)(g) and 61.878(1)(h) since these subsections exempt only documents which are preliminary in nature and the response signed by the university's president and submitted to the NCAA constituted the final result of an extensive investigation; the submission of the response prior to final action by the NCAA is irrelevant since the agency subject to the provisions of KRS 61.878 is the university, nor does it matter that the university's response contained investigatory materials that were once preliminary in nature since preliminary investigatory materials lose their exempt status once they are adopted by the agency as part of its action. 663 SW(2d) 953 (Ky App 1983), Board of Medical Licensure v Courier-Journal & Louisville Times Co. Once final disciplinary action has been taken by the Kentucky state board of medical licensure, any complaint, report, memorandum, or letter made part of the record in the action must be open to public inspection as the documents are no longer within the exceptions of KRS 61.878(1)(g) and 61.878(1)(h). 830 SW(2d) 373 (Ky 1992), University of Kentucky v Courier-Journal & Louisville Times Co. A state university's official response to the national collegiate athletic association's (NCAA) allegations concerning rule violations by university athletic staff members in sending $1,000 in cash to an out-of-state basketball recruit is not exempt under KRS 61.878(1)(g) and 61.878(1)(h) since these subsections exempt only documents which are preliminary in nature and the response signed by the university's president and submitted to the NCAA constituted the final result of an extensive investigation; the submission of the response prior to final action by the NCAA is irrelevant since the agency subject to the provisions of KRS 61.878 is the university, nor does it matter that the university's response contained investigatory materials that were once preliminary in nature since preliminary investigatory materials lose their exempt status once they are adopted by the agency as part of its action. 663 SW(2d) 953 (Ky App 1983), Board of Medical Licensure v Courier-Journal & Louisville Times Co. Once final disciplinary action has been taken by the Kentucky state board of medical licensure, any complaint, report, memorandum, or letter made part of the record in the action must be open to public inspection as the documents are no longer within the exceptions of KRS 61.878(1)(g) and 61.878(1)(h). 637 SW(2d) 658 (Ky App 1982), Louisville v Courier-Journal & Louisville Times Co. Louisville police department's internal affairs files are exempt from public inspection as being preliminary in nature under the Kentucky open records law. 844 SW(2d) 389 (Ky 1992), Skaggs v Redford. A prospective federal habeas corpus proceeding constitutes a "law enforcement action" within the meaning of KRS 61.878(1)(k) so as to exempt from disclosure records relating to a criminal conviction that had been affirmed on appeal. 740 SW(2d) 943 (Ky 1987), Com v Bush. There is a compelling reason for not releasing a copy of the presentence investigation report to a criminal defendant, namely the protection of confidential sources, and as KRS 532.050(4) specifies that the court shall advise the defendant of the factual information contained in the report and not that the court shall release a copy of the report, and since the report is excluded from public inspection as confidential and privileged by statute, defendants are not entitled to a copy of their presentence investigation report at presentence and postconviction stages. 740 SW(2d) 943 (Ky 1987), Com v Bush. A defendant convicted of murder who waives preparation of a presentence investigation report at the time of his final sentencing, and who is informed in prison by his caseworker that such a report had been prepared and is being used for purposes of classification and determination of eligibility for involvement in programs at the institution, is entitled to be informed of the factual material in the report and to a reasonable time to controvert that information, but not to a copy of the report, since sources of confidential information must be protected. KRS Ann. @ 61.880 (BALDWIN) @ 61.880 Denial of inspection; role of Attorney General (1) If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (2) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within ten (10) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884. 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 requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed. (3) Each agency shall notify the Attorney General of any actions filed against that agency in Circuit Court regarding the enforcement of KRS 61.870 to 61.884. (4) In the event a person feels the intent of KRS 61.870 to 61.884 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. (5) (a) A party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision. An appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882. (b) If an appeal is not filed within the thirty (30) day time limit, 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 the Circuit Court of the county where the public record is maintained. HISTORY: 1992 c 163, @ 6, eff. 7-14-92 1976 c 273, @ 6 Penalty: 61.991(2) NOTES: CROSS REFERENCES Access to public records, general rules, 20 KAR 1:010, 200 KAR 1:020 NOTES ON DECISIONS AND OPINIONS 1. Notification of agency decision 2. Denial of inspection a. In general b. Specific exceptions; applicability of exceptions 3. Documents open to inspection 4. Documents not open to inspection 5. Availability of records; timely inspection of records 6. Miscellaneous provisions 1. Notification of agency decision KRS Ann. @ 61.882 (BALDWIN) @ 61.882 Jurisdiction of Circuit Court in action seeking right of inspection; burden of proof; costs; attorney fees (1) The Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of KRS 61.870 to 61.884, by injunction or other appropriate order on application of any person. (2) A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court. (3) In an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the court shall determine the matter de novo. In an original action or an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency. The court on its own motion, or on motion of either of the parties, may view the records in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court. (4) 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. (5) Any person who prevails against any agency in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were wilfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection shall be paid by the agency that the court determines is responsible for the violation. HISTORY: 1992 c 163, @ 7, eff. 7-14-92 1976 c 273, @ 7 NOTES: CROSS REFERENCES Legislative research commission, power to secure information, 7.110 Access to public records, general rules, 5 KAR 1:010, 20 KAR 1:010, 200 KAR 1:020 LEGAL ENCYCLOPEDIAS AND ALR Civil remedies for denial of inspection of records under Freedom of Information Act. 66 Am Jur 2d, Records and Recordings Laws @ 46.17 Pro se litigant as entitled to award of attorneys' fees for value of his own services rendered in lawsuit under Freedom of Information Act (5 USCS @ 552). 56 ALR Fed 573 NOTES ON DECISIONS AND OPINIONS 826 SW(2d) 324 (Ky 1992), Kentucky Bd of Examiners of Psychologists v Courier-Journal & Louisville Times Co. KRS 61.878(1)(a) reveals an unequivocal legislative intention that certain records, albeit they are "public", are not subject to inspection, because disclosure would be a clearly unwarranted invasion of personal privacy; the language of (1)(a) reflects a public interest in privacy, and the statute exhibits a general bias favoring disclosure, placing the burden of proving exempt status on the agency which would withhold records and all exceptions must be strictly construed. 625 SW(2d) 109 (Ky App 1981), Fayette County Bd of Ed v Lexington-Fayette Urban County Human Rights Comm. There is no unqualified right for one governmental agency to demand or to examine the total personnel files of another governmental agency. A court shall ultimately determine whether certain withheld material is pertinent to a pending litigation. KRS Ann. @ 61.884 (BALDWIN) @ 61.884 Person's access to record relating to him Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878. HISTORY: :1976 c 273, @ 8, eff. 6-19-76 Penalty: 61.991(2) NOTES: CROSS REFERENCES Restrictions on access to inmate records, 197.025 Long-term care facilities, public inspection of cabinet for human resources inspection reports, 216.547 Access of public records by electronic data processing procedures, general provisions, 1 KAR 5:010 Access to public records, general rules, 5 KAR 1:010, 20 KAR 1:010, 200 KAR 1:020 Inspection of criminal history record information by record subject, 502 KAR 30:070 LEGAL ENCYCLOPEDIAS AND ALR Disclosure of records under state Information Practices Act. 66 Am Jur 2d, Records and Recordings Laws @ 46.15, 46.16 Patient's right to disclosure of his or her own medical records under state freedom of information act. 26 ALR4th 701 NOTES ON DECISIONS AND OPINIONS 696 SW(2d) 325 (Ky App 1985), Friend v Rees. A reformatory is a "public agency" within the meaning of the open records law, and a prisoner has the right to obtain a copy of his account record at the reformatory so long as he pays a reasonable copying fee. OAG 87-82. The social services department of the human resources department acts within applicable statutory provisions in refusing to make available for inspection by an alleged perpetrator of child abuse the names of informants and those portions of the statements of a judge and an informant wherein those parties set forth personal opinions, observations, and recommendations not related to the child abuse investigation and the findings resulting from that investigation.