Hacker Chronicles 2/HACKER2.BIN/809.KY2.TXT

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                        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.