Thursday, August 13, 2015

Keeping an eye on Kentucky's public agencies

The aim of this blog is to provide citizens of Kentucky with analysis of open meetings and open records decisions by the state's attorney general.

Every state in the nation has laws that seek to provide the public with access to certain information and documents of governmental agencies. These laws are sometimes labeled "sunshine laws" because they expose what public officers or departments might otherwise prefer to keep hidden or in the dark.

Kentucky's legislature has explained, through statute, that the public policy of the state's open records law is based on the idea "that free and open examination of public records is in the public interest." As such, the exceptions allowed under the law for types of records that need not be disclosed are to be strictly construed. (See KRS 61.871).

In Kentucky, individuals who feel that a public agency has not complied with the state's open meetings or open records laws may appeal to the attorney general for an opinion on the matter. If the individual or agency is not satisfied with the attorney general's decision, an action may be filed in the appropriate circuit court.

A helpful overview of the state's open meetings and open records laws from a public agency's perspective is available on the attorney general's website. A guide for individuals is also available. Further, a video that the Scripps Howard First Amendment Center produced for public officials is available here.

Public meetings and public records opinions are usually issued on a weekly basis. In order to remain timely, new posts will be added to this blog shortly after such opinions are issued.

The following decision was released Aug. 6, 2015, and provides an example of the types of issues the attorney general's office reviews in relation to Kentucky's open meetings and open records laws.

  • In re: Kelly Wiley/Cabinet for Health and Family Services, 15-ORD-144, the attorney general found that the Cabinet had subverted the intent of the open records act by trying to impose a $75 per hour fee on the retrieval of requested documents.
    • Under Kentucky law, a "public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." (See KRS 61.874). 
    • Though the record request had not been denied in this case, the individual was still permitted by state law to appeal to the attorney general's office. (See KRS 61.880). 
    • In the opinion, the attorney general's office found that "[i]n attempting to impose an excessive fee for the retrieval of documents rather than charging the cost of reproduction, CHFS subverted the intent of the Open Records Act short of denial of inspection."
      • The attorney general's office cited several of its former opinions, which recognized that public agencies may charge for costs of reproduction but not for costs of retrieval. 
This blog will not seek to discuss every opinion of the attorney general. Instead, more attention will be given to opinions that involve well known public agencies, such as those affecting institutions of higher learning or state cabinets, or opinions whose reasoning demonstrates a policy in favor of disclosure. Decisions by Kentucky state courts will also be reviewed when applicable.

From time to time, this blog may also include posts related to the open meetings or open records decisions of other states or of requests made under the federal Freedom of Information Act.

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