CHAPTER 33A: PUBLIC RECORDS

General

33A.01 Definitions

Procedures for Requesting Public Records

33A.05 Initial request with immediate inspection
33A.06 Referral to proper custodian
33A.07 Public records not immediately available
33A.08 Refusal of unreasonable requests
33A.09 Time limitation; denial of inspection
33A.10 Concealing or destroying records prohibited
33A.11 Access to records relating to particular individual
33A.12 Public records protected from disclosure


GENERAL


§ 33A.01 DEFINITIONS.

For purposes of this chapter the following words and phrases shall have the following meanings ascribed to them respectively.

"CITY." The city government of this city.

"COMMERCIAL PURPOSE." The direct or indirect use of any public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee. "COMMERCIAL PURPOSE" shall not include publication or related use of a public record by a newspaper or periodical; use of a public record by a radio or television station in its news or other informational programs; or use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.

"CUSTODIAN." The official custodian or any authorized person having personal custody and control of public records. The "CUSTODIAN" having personal custody of most of the public records of this city is the City Clerk/Treasurer.

"MECHANICAL PROCESSING." Any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.

"MEDIA." The physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards.

"OFFICIAL CUSTODIAN." 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. The

"OFFICIAL CUSTODIAN" of this city shall be the Mayor.

"PERSON." A human being who makes a bodily appearance before the office of the custodian and makes a request for inspection of public records.

"PUBLIC AGENCY." Every city government board, commission, and authority; every city council and council board, commission and committee; every school district board, special district board, and municipal corporation; every city 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; any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government; any entity when the majority of its governing body is appointed by a "public agency", as defined by this section; a member or employee of a "public agency", a state or local officer, or any combination thereof; any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, or controlled by a "public agency" as defined in this section; an interagency body of two (2) or more public agencies where each "public agency" is defined in this section. (KRS 61.870)

"PUBLIC RECORDS." 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 RECORDS" shall not include any records owned or maintained by or for a body referred to in subsection (1) (h) of KRS 61.870 that are not related to functions, activities, programs, or operations funded by state or local authority nor any records that have been excluded by § 33A.12.

"REASONABLE FEE" or "FEE." The fair payment required by a public agency for making copies of public records which shall not exceed the actual cost thereof and shall not include the cost of staff time required, but may include postage where appropriate.

"REQUEST." An oral petition by any person or, at the option of the custodian, the completion of a written application that clearly states the specific public record or records that are desired for inspection or duplication. (KRS 61.870)

"SOFTWARE." The program code which makes a computer system function, but does not include that portion of the program code which contains public records exempted from inspection as provided by KRS 61.878 or specific addresses of files, passwords, access codes, user identifications, or any other mechanism for controlling the security or restricting access to public records in the public agency's computer system. "SOFTWARE" consists of the operating system, application programs, procedures, routines, and subroutines such as translators and utility programs, but does not include that material which is prohibited from disclosure or copying by a license agreement between a public agency and an outside entity which supplied the material to the agency. (KRS 61.870)

§ 33A.05 INITIAL REQUEST WITH IMMEDIATE INSPECTION.

(A) As defined in § 33A.01, and subject to the limitations set forth in § 33A.12, any person desiring to inspect or copy the public records of the city shall make a request or complete a written application for such records at the office of the City Clerk/Treasurer during regular office hours, except during legal holidays. The application shall be hand delivered, mailed, or sent via facsimile to the City Clerk/Treasurer's office. (KRS 61.872 (2))

(B) If the custodian determines that a person's request is in compliance with the open records law and the requested records are immediately available, the custodian shall deliver the records for inspection. Suitable facilities shall be made available in the office of the City Clerk/Treasurer for the inspection. 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. (KRS 61.872(1).

(C) An applicant may inspect public records during the regular business hours of the city, or by receiving copies of the public records from the city through the mail if the applicant's residence or principle place of business is outside of the county in which the city is located and he has precisely described public records which are available within the city. If the person requesting the public records requests that the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing. KRS 61.872(3).

(D) The applicant shall have the right to make abstracts of the public records and to obtain copies of all public records not exempted by this chapter. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee as defined in § 33A.01.

(E) Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.

(F) The minimum standard format in paper form shall be defined as not less than 8½ inches × 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor's requirements, the public records may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.
(KRS 61.874(1))

(G) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee. The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee. The fee may be based on the cost to the public agency of media, mechanical processing and staff required to produce a copy of the public record or records or the cost to the public agency of the creation purchase, or the acquisition of the public records.
(KRS 61.874 (4))

(H) It shall be unlawful for a person to obtain a copy of any part of a public record for a:

(1) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (G) of this section: or

(2) Commercial purpose, if the person uses or knowingly allows the use of the public record for a different commercial purpose; or

(3) Noncommercial purpose, if the person uses or knowingly  allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use. (KRS 61.874 (5))

(I) Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed:

(1) The cost of physical connection to the system and reasonable cost of computer time access charges;

(2) If the records are requested for a commercial purpose, a reasonable fee based on the factors set forth in subsection (G). (KRS 61.874(6))


§ 33A.06 REFERRAL TO PROPER CUSTODIAN.

If the City Clerk/Treasurer does not have custody or control of the public record or records requested, the City Clerk/Treasurer 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.
(KRS 61.872(4))


§ 33A.07 PUBLIC RECORDS NOT IMMEDIATELY AVAILABLE.

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 days (excepting Saturdays, Sundays, and legal holidays) 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 or duplication. (KRS 61.872(5))


§ 33A.08 REFUSAL OF UNREASONABLE REQUESTS.

If the application places an unreasonable burden in producing voluminous 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 must be sustained by clear and convincing evidence. (KRS 61.872(6))


§ 33A.09 TIME LIMITATION; DENIAL OF INSPECTION.

(A) The official custodian, upon any request for records made under this chapter, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any request whether to comply with the request and shall notify in writing the person making the request within the three-day period of its decision. Any 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 shall constitute final agency action.

(B) If the requesting party wants the Attorney General to review the denial of a request for inspection of a public record, he shall proceed under the provisions of KRS 61.880 and 61.882. Upon the Attorney General's request, the agency will provide additional documentation.

(C) If upon request by the person seeking inspection, the Attorney General reviews the denial and issues a written opinion upholding, in whole or in part, the request for inspection, the requesting party may institute appeal proceedings within thirty (30) days for injunctive or declaratory relief in the circuit court. In addition, if the Attorney General disallows the request, or if the city continues to withhold the record notwithstanding the Attorney General's opinion, and the person seeking disclosure institutes proceedings in circuit court, the city shall notify the Attorney General of such action. (KRS 61.880, 61.882)


§ 33A.10 CONCEALING OR DESTROYING RECORDS PROHIBITED.

No official of the city shall willfully conceal or destroy any record with the intent to violate the provisions of this chapter or these rules and regulations.


§ 33A.11 ACCESS TO RECORDS RELATING TO PARTICULAR INDIVIDUAL.

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 § 33A.12 of these rules and regulations. (KRS 61.884)


§ 33A.12 PUBLIC RECORDS PROTECTED FROM DISCLOSURE.

(A) The following public records are excluded from the application of this chapter and these rules and regulations, 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:

(1) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

(2) 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 other statute.

(3)(a) Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it,generally recognized as confidential or proprietary, which if opened would permit an unfair commercial advantage to competitors of the entity that disclosed the records.

(b) Upon and after July 15, 1992, records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained (i) in conjunction with an application or the administration of a loan or grant; (ii) in conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154; (iii) 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 (iv) for the grant or review of a license to do business. These exemptions shall not, however, apply to records the disclosure or publication of which is directed by other statutes.

(4) 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 applications to agencies for permits or licenses necessary to do business or to expand business operations within the state, except as provided in division (A) (3) above.

(5) Public records which are developed by an agency in conjunction with the regulation or supervision of financial institutions, including but not limited to, banks, savings and loan associations, and credit unions, which disclose the agency's internal examining or audit criteria and related analytical methods.

(6) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made by or for a public agency relative to the 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.

(7) 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.

(8) 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 this chapter, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. The exemptions provided by this subdivision shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this chapter.

(9) Preliminary drafts, notes, or correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.

(10) Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended.

(11) All public records or information the disclosure of which is prohibited by federal law or regulation.

(12) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.

(13)(a) Public 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 and limited to:

1. Criticality lists resulting from consequence assessments;
2. Vulnerability assessments;
3. Antiterrorism protective measures and plans;
4. Security and response needs assessments;
5. Infrastructure records that expose a vulnerability referred to in this division through the disclosure of the location, configuration, or security of critical systems, including public utility critical systems. These critical systems shall include but not be limited to information technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems.
6. The following records when their disclosure will expose a vulnerability referred to in this division: detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility or security systems of any building or facility owned, occupied, leased or maintained by a public agency; and
7. Records when their disclosure will expose a vulnerability referred to in this division and that describe the exact physical location of hazardous chemical, radiological, or biological materials.

(b) As used in this division, “TERRORIST ACT” means a criminal act intended to:

1. Intimidate or coerce a public agency or all or part of the civilian population;
2. Disrupt a system identified in division (a)5.; or
3. Cause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency.

(c) On the same day that a public agency denies a request to inspect a public record for a reason identified in this division, that public agency shall forward a copy of the written denial of the request, referred to in KRS 61.880(1), to the executive director of the Kentucky Office of Homeland Security and the Attorney General;

(d) Nothing in this division shall affect the obligations of a public agency with respect to disclosure and availability of public records under state environmental, health, and safety programs;

(e) The exemption established in this division shall not apply when a member of the Kentucky General Assembly seeks to inspect a public record identified in this division under the Open Records Law.

(14) Public or private records, including books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, having historic, literary, artistic, or commemorative value accepted by the archivist of a public university, museum, or government depository from a donor or depositor other than a public agency. This exemption shall apply to the extent that nondisclosure is requested in writing by the donor or depositor of such records, but shall not apply to records the disclosure or publication of which is mandated by another statute or by federal law.

(B) No exemption under this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person. In addition, if any public record contains material which is not excepted under this section, the city shall separate the excepted and make the nonexcepted material available for examination, subject to the possible applicability of § 33A.08.

(C) 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.

(D) No exemption under this section shall be construed to deny, abridge, or impede the right of a municipal employee, an applicant for employment, or an eligible on a register to inspect and copy any record, including preliminary and other supporting documentation, that relates to him. Such 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 municipal employee, applicant, or eligible shall not have the right to inspect or copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency. (KRS 61.878)