Kentucky Freedom of Information Act
What is the Kentucky Freedom of Information Act?
The Freedom of Information Act (FOIA) was enacted in 1967 by the US Congress to allow full or partial disclosure of government records upon request. The FOIA is in effect at the federal level, while states have enacted varying laws governing access to public records. The Kentucky Revised Statutes (KRS) 61.870 to 61.884, known as the Kentucky Open Records Act (KORA), governs access to public records in the state. The Kentucky Open Records Act allows the public to have access to public records at all government agencies in the state except those exempted from disclosure.
The Kentucky Open Records Act was enacted in 1976. There were amendments in 1986, 1992, 1994, 2005, 2013, 2018, 2019, and 2021. In 2020, the Kentucky General Assembly declared a state of emergency and passed Senate Bill 150 (SB 150) to temporarily alter the KORA due to the coronavirus pandemic. The emergency law extended agencies’ response time from three working days to 10 days and permitted agencies to deny in-person inspection of records. In 2021, the Kentucky General Assembly passed the House Joint Resolution 77 to terminate SB 150 and amended the act to extend the response time to five working days. The 2021 amendment stipulates that only state residents can request public records under the Act.
What is Covered Under the Kentucky Freedom of Information Act?
The Kentucky Open Records Act, Section 61.870(2) defines public records as all books, maps, papers, photographs, cards, discs, tapes, or recordings owned, prepared, used, in possession of, or retained by public agencies. Databases, software, emails, and other electronic records of public agencies are also considered public records. According to the Act, public agencies include county, city, local, and state government departments, district boards, corporations, and bodies created by state or local authorities. Organizations that receive at least 25% of their funds from state or local authorities and entities where public agencies appoint the majority of their governing boards are also considered public agencies.
What Records are Exempt from the Freedom of Information Act in Kentucky?
The Kentucky Open Records Act Section 61.878 exempts 16 specific records from public disclosure. Some of the records exempted from public access include:
- Records containing personal information
- Records compiled and maintained for research
- Records confidentially disclosed to an agency
- Records developed by an agency in conjunction with a financial institution
- Contents of real estate appraisals, engineering or feasibility evaluations
- Test questions, scoring keys, and other examination information
- Records of law enforcement agencies pertaining to an ongoing investigation or with the potential of revealing the identity of an informant
- Records of a procurement process
- Records stipulated by federal or state laws to be kept confidential
- Personal communications that are unrelated to a governmental function
- Client and case files maintained by the Department of Public Advocacy
A record containing exempted information may still be disclosed, but the confidential parts of the record must be redacted. A record custodian may deny a request if the request places an undue burden in producing the records or the custodian believes that repeated requests are intended to disrupt the normal functioning of the agency. The record custodian is responsible for proving a case for exemption or denial. They must provide the requester with the specific law exempting the requested record from public disclosure.
How Do I File a Kentucky Freedom of Information Act Request?
The Kentucky Open Records Act stipulates that a request for a public record must be made in writing to the official record custodian of the agency. The official record custodian is the chief administrative officer or any other agency employee responsible for maintaining the agency's records. The name of the custodian of records for an agency is mandated by law to be shared on the agency’s website. Public agencies are to provide suitable facilities for inspection of non-exempt records during the agency’s regular working hours. The agency will require a requester to state the purpose for the request only to the extent of determining if the records will be used for commercial purposes. The requester’s identity does not affect their right to access public records. A resident can access a public record where their name appears even if the record is exempted from public disclosure.
When filing a request, a requester must describe the records, state the purpose of the request, indicate their residency in the state, and sign the request. The Kentucky Attorney General’s office provides a Request to Inspect Public Records form. The form can be used to request public records from all agencies in the state and can be delivered by hand, mail, fax, or email.
For instance, the Secretary of State Office designates the Assistant Secretary of State as the official custodian of public records. Requests for records can be made via email (email@example.com), fax to (502) 564-5687, mail, or in-person. The requests should be addressed to:
Assistant Secretary of State
700 Capital Avenue
Frankfort, KY 40601
Kentucky State Police
Legal Services Branch
Attn: Stephanie Dawson, Records Custodian
919 Versailles Road
Frankfort, KY 40601
Phone: (502) 782-1873
All public agencies in Kentucky have procedures for requesting public records on their websites. The information on the website will include the acceptable means of submitting requests and the contact information of the official custodian of records.
What is the Cost of a Freedom of Information Act Request in Kentucky?
Per the KORA Section 61.874, an agency can impose a reasonable cost of copying and mechanically producing a record without including staff cost for non-commercial requests. Ten cents per page is deemed a reasonable copying fee by the Kentucky Attorney General’s office. An agency bears the cost for redaction of exempted information in a document. The KORA authorizes an agency to impose higher copying fees and staff costs for requests made for commercial purposes. The agency may require advance payment of the fees. Records maintained on computer systems should be provided by electronic means where practicable.
The Kentucky State Police Department charges 10 cents per page. Their charges for photographs, videotapes, discs, and diskettes vary from $2 to $3. The official custodian sends a letter stating the cost to the requester. The Kentucky Department of Revenue also charges 10 cents for every page copied. The agency charges $10 for CDs and between $25 and $75 per hour for requests that require programming. An estimate of the cost will be sent to the requester prior to the production of the record.
How Long Does it Take to Respond to a Freedom of Information Act Request in Kentucky?
Per the Kentucky Open Records Act, an agency must respond in writing to an open records request within five business days following the receipt of the request. If the record cannot be produced or inspected within five days, the agency must notify the requester in writing, providing a detailed explanation for the delay and the earliest date that the records will be available. The record volume, the status of the record, and the request complexity are some factors that can delay response to a request. If a request is sent to the wrong agency, the agency is required by law to respond to the request by providing the name and address of the agency with the public record. An agency's response, partly or fully denying a request, must state the specific exemption authorizing the withholding of the request and briefly explain how the exemption applies to the withheld record. The response must be issued by the agency’s official custodian of records.
A requester can file an appeal to the Kentucky Attorney General about an agency's denial of a public record request. Imposition of excessive fees, misdirection of an applicant, delay beyond the five-day period, and excessive extension of time are considered denial. The appeal consists of a letter describing the circumstances of the denial along with a copy of the request and the agency’s written response denying the request, if available. The Attorney General will provide a written decision within 20 working days, stating whether the agency violated the KORA or not. The AG can extend the 20 days limit if there is a need to obtain additional documentation from the agency or obtain a copy of the requested records. Other reasons for extension include conducting extensive research on the issue or a large number of appeals received by the AG at the time. The extension must not be more than 30 business days. The AG must notify both the requester and the agency of the determination of the complaint. The AG does not have the authority to enforce a decision or force an agency to release a record. The requester or the agency can appeal the AG’s decision in the Circuit Court of the county where the agency is domiciled or the record is maintained within 30 days of the decision of the AG. The decision of the AG becomes a law and can be enforced by the Circuit Court of the county if no appeal is filed.
The KORA Section 61.882 stipulates that a requester can file a suit directly with the Circuit Court of the county where the agency is domiciled or the record is maintained. The requester does not have to complain to the Attorney General before filing the suit. If the requester prevails in the Circuit Court, they may be awarded legal costs, reasonable attorney fees, and up to $25 for each day they were denied access to the records. Open records proceedings take precedence over every other case.