Monday, February 16, 2009

The latest open-records rulings

The following Open Records Decisions were issued by the Office of the Attorney General Feb. 9-13:

1. 09-ORD-025 (Boyd County)
Records in the custody of circuit court clerks are properly characterized as court records and are not governed by the Open Records Act. The Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Boyd Circuit Court Clerk cannot be said to have violated the act.

2. 09-ORD-026 (Graves County)
Although the record contains insufficient evidence to conclusively determine whether it violated KRS 61.880(1) in the disposition of a request for records, Graves County School District clearly violated KRS 61.872(1) in referring requesters to its website for a copy of its policies and procedures manual rather than affording them an opportunity to conduct on-site inspection or mailing them a copy of the manual upon prepayment of copying and postage charges.

3. 09-ORD-027 (Franklin County)
Insofar as the Cabinet for Health and Family Services initially failed to briefly explain how the cited exception applied to the records being withheld, the agency violated KRS 61.880(1); however, the cabinet provided the investigative records once final action was taken and the records were no longer preliminary. Redaction of social security numbers, dates of birth, home addresses, race and gender information, interview questions and answers, information regarding unsuccessful applicants, and college transcript information on the basis of KRS 61.878(1)(a) is consistent with governing precedents.

4. 09-ORD-028 (Oldham County)
City of LaGrange committed a procedural violation of the Open Records Act by not responding to a request within three days. Assuming the request was for a commercial purpose, the city’s fee of $4 for property tax information was reasonable under KRS 61.874(4)(a) as it was used to offset the city’s high cost of acquiring the records. If the purpose was not commercial, however, the fee should not exceed ten cents per page. The hostile attitude of a person requesting records does not allow the agency to impose an unreasonable burden under KRS 61.872(6).

5. 09-ORD-029 (Franklin County)
Decision adopting 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records and those which it does not possess; a public agency cannot produce that which it does not have nor does a public agency have to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). In providing the requester with the name of the custodial agency, the Kentucky State Police substantially complied with KRS 61.872(4).

6. 09-ORD-030 (Franklin County)
Because requested investigative records related to an ongoing collateral attack on a criminal conviction, in which the requester was seeking to obtain post-conviction relief from the underlying conviction, which was therefore not final for purposes of the Open Records Act, the Kentucky State Police properly denied requests under authority of KRS 61.878(1)(h) and KRS 17.150(2).

Full texts of the opinions can be found at http://ag.ky.gov/civil/orom/list.htm.

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