AN ACT relating to open records.

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AN ACT relating to open records. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 61.870 is amended to read as follows: 3
As used in KRS 61.870 to 61.884, unless the context requires otherwise: 4
(1) "Public agency" means: 5
(a) Every state or local government officer; 6
(b) Every state or local government department, division, bureau, board, 7
commission, and authority; 8
(c) Every state or local legislative board, commission, committee, and officer; 9
(d) Every county and city governing body, council, school district board, specia l 10
district board, and municipal corporation; 11
(e) Every state or local court or judicial agency; 12
(f) Every state or local government agency, including the policy-making board of 13
an institution of education, created by or pursuant to state or local statute, 14
executive order, ordinance, resolution, or other legislative act; 15
(g) Any body created by state or local authority in any branch of government; 16
(h) Any body which, within any fiscal year, derives at least twenty -five percent 17
(25%) of its funds expended by it in the Commonwealth of Kentucky from 18
state or local authority funds. However, any funds derived from a state or 19
local authority in compensation for goods or services that are provided by a 20
contract obtained through a public competitive procurement proce ss shall not 21
be included in the determination of whether a body is a public agency under 22
this subsection; 23
(i) Any entity where the majority of its governing body is appointed by a public 24
agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h) , (j), or (k) of 25
this subsection; by a member or employee of such a public agency; or by any 26
combination thereof; 27
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(j) Any board, commission, committee, subcommittee, ad hoc committee, 1
advisory committee, council, or agency, except for a committee of a hosp ital 2
medical staff, established, created, and controlled by a public agency as 3
defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this 4
subsection; and 5
(k) Any interagency body of two (2) or more public agencies where each public 6
agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of 7
this subsection; 8
(2) "Public record" means all books, papers, maps, photographs, cards, tapes, discs, 9
diskettes, recordings, software, or other documentation regardless of physical form 10
or characteristics, which are prepared, owned, used, in the possession of or retained 11
by a public agency. "Public record" shall not include any records owned or 12
maintained by or for a body referred to in subsection (1)(h) of this section that are 13
not related to functions, activities, programs, or operations funded by state or local 14
authority; 15
(3) (a) "Software" means the program code which makes a computer system 16
function, but does not include that portion of the program code which contains 17
public records exempted from inspection as provided by KRS 61.878 or 18
specific addresses of files, passwords, access codes, user identifications, or 19
any other mechanism for controlling the security or restricting access to 20
public records in the public agency's computer system. 21
(b) "Software" consists of the operating system, application programs, 22
procedures, routines, and subroutines such as translators and utility programs, 23
but does not include that material which is prohibited from disclosure or 24
copying by a license agreement between a public agency and an outside entity 25
which supplied the material to the agency; 26
(4) (a) "Commercial purpose" means the direct or indirect use of any part of a public 27
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record or records, in any form, for sale, resale, solicitation , rent, or lease of a 1
service, or any use by which the user expects a profit either through 2
commission, salary, or fee. 3
(b) "Commercial purpose" shall not include: 4
1. Publication or related use of a public record by a newspaper or 5
periodical; 6
2. Use of a p ublic record by a radio or television station in its news or 7
other informational programs; or 8
3. Use of a public record in the preparation for prosecution or defense of 9
litigation, or claims settlement by the parties to such action, or the 10
attorneys representing the parties; 11
(5) "Official custodian" means the chief administrative officer or any other officer or 12
employee of a public agency who is responsible for the maintenance, care and 13
keeping of public records, regardless of whether such records are in hi s actual 14
personal custody and control; 15
(6) "Custodian" means the official custodian or any authorized person having personal 16
custody and control of public records; 17
(7) "Media" means the physical material in or on which records may be stored or 18
represented, and which may include, but is not limited to paper, microform, disks, 19
diskettes, optical disks, magnetic tapes, and cards; 20
(8) "Mechanical processing" means any operation or other procedure which is 21
transacted on a machine, and which may include, but is n ot limited to a copier, 22
computer, recorder or tape processor, or other automated device; 23
(9) "Booking photograph and photographic record of inmate" means a photograph or 24
image of an individual generated by law enforcement for identification purposes 25
when the individual is booked into a detention facility as defined in KRS 520.010 26
or photograph and image of an inmate taken pursuant to KRS 196.099; and 27
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(10) "Resident of the Commonwealth" means: 1
(a) An individual residing in the Commonwealth; 2
(b) A domestic business entity with a location in the Commonwealth; 3
(c) A foreign business entity with a physical location in the 4
Commonwealth[registered with the Secretary of State]; 5
(d) An individual that is employed and works at a location or locations within the 6
Commonwealth; 7
(e) An individual or business entity that owns real property within the 8
Commonwealth; or 9
(f) [Any individual or business entity that has been authorized to act on behalf of 10
an individual or business entity defined in paragraphs (a) to (e) of this 11
subsection; or 12
(g) ]A news-gathering organization as defined in KRS 189.635(9)(b)1.a. to e.[.] 13
Section 2. KRS 61.872 is amended to read as follows: 14
(1) All public records shall be open for inspection by any resident of the 15
Commonwealth, except as otherwise provided by KRS 61.870 to 61.884, and 16
suitable facilities shall be made available by each public agency for the exercise of 17
this right. No resident of the Commonwealth shall remove original copies of public 18
records from the offices of any public agency without the written permission of the 19
official custodian of the record. 20
(2) (a) Any resident of the Commonwealth shall have the right to i nspect public 21
records. The official custodian may require a written application, signed by 22
the applicant and with his or her name printed legibly on the application, 23
describing the records to be inspected. The official custodian may require the 24
applicant to provide: 25
1. A statement in the written application indicating[of] the manner in 26
which the applicant is a resident of the Commonwealth under KRS 27
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61.870(10)(a) to (e)[(f)]; and 1
2. A government -issued photo identification, or facsimile thereof, that 2
includes the person's address, if the applicant possesses photo 3
identification. If an applicant does not possess photo identification, the 4
agency may require an alternative form of identification or proof 5
evidencing the manner in which the applicant is a resident of the 6
Commonwealth under subsection (10) of Section 1 of this Act. 7
(b) The written application and proof of residency, if required by the public 8
agency pursuant to paragraph (a)2. of this subsection, shall be: 9
1. Hand delivered; 10
2. Mailed; 11
3. Sent via facsimile; or 12
4. Sent via e -mail to the public agency's official custodian of public 13
records or his or her designee at the e -mail address designated in the 14
public agency's rules and regulations adopted pursuant to KRS 61.876. 15
(c) A public agency shall not re quire the use of any particular form for the 16
submission of an open records request, but shall accept for any request the 17
standardized form developed under KRS 61.876(4). 18
(3) A resident of the Commonwealth may inspect the public records: 19
(a) During the regular office hours of the public agency; or 20
(b) By receiving copies of the public records from the public agency through the 21
mail. The public agency shall mail copies of the public records to a person 22
whose residence or principal place of business is outside the county in which 23
the public records are located after he or she precisely describes the public 24
records which are readily available within the public agency. If the resident of 25
the Commonwealth requesting the public records requests that copies of the 26
records be mailed, the official custodian shall mail the copies upon receipt of 27
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all fees and the cost of mailing. 1
(4) If the person to whom the application is directed does not have custody or control 2
of the public record requested, that person shall notify the applicant and shall 3
furnish the name and location of the official custodian of the agency's public 4
records. 5
(5) If the public record is in active use, in storage or not otherwise available, the 6
official custodian shall immediately notify the applicant and shall designate a place, 7
time, and date for inspection of the public records, not to exceed five (5) days from 8
receipt of the application, unless a detailed explanation of the cause is given for 9
further delay and the place, time, and earliest date on which the public record will 10
be available for inspection. 11
(6) If the application places an unreasonable burden in producing public records or if 12
the custodian has reason to believe that repeated requests are intended to disrupt 13
other essential functions of the public agency, the official custodian may refuse to 14
permit inspection of the public records or mail copies thereof. However, refusal 15
under this section shall be sustained by clear and convincing evidence. 16
Section 3. KRS 61.876 is amended to read as follows: 17
(1) Each public agency shall adopt rules and regulations in conformity with the 18
provisions of KRS 61.870 to 61.884 to provide full access to public records, to 19
protect public records from damage and disorganizatio n, to prevent excessive 20
disruption of its essential functions, to provide assistance and information upon 21
request and to ensure efficient and timely action in response to application for 22
inspection, and such rules and regulations shall include but shall not be limited to: 23
(a) The principal office of the public agency and its regular office hours; 24
(b) The title, mailing address, and e -mail address of the official custodian of the 25
public agency's records; 26
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for 27
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copies; 1
(d) The procedures to be followed in requesting public records. 2
(2) Each public agency shall display in a prominent location accessible to the public, 3
including on its website[Web site]: 4
(a) A copy of its rules and regulations pertaining to public records; 5
(b) The mailing address, e -mail address, and phone number o f the official 6
custodian of the records or his or her designee to which all requests for public 7
records shall be made; and 8
(c) The form developed by the Attorney General under subsection (4) of this 9
section that may be used to request public records. 10
(3) The Finance and Administration Cabinet may promulgate administrative 11
regulations pursuant to KRS Chapter 13A, pertaining to public records, for all state 12
administrative agencies, except for the Legislative Research Commission and the 13
Administrative Office of the Courts, each of which may promulgate administrative 14
regulations for their respective agencies, pertaining to public records. 15
(4) The Attorney General shall promulgate by administrative regulation in accordance 16
with[under] KRS Chapter 13A a standardiz ed form that may be used to request 17
public records from a public agency. The form shall not allow any request for 18
information other than the following: 19
(a) The name of the requesting party; 20
(b) The mailing or e-mail address of the requesting party, if copi es of records are 21
requested; 22
(c) Whether the request is for a commercial purpose; 23
(d) A description of the documents requested; 24
(e) A statement that the person making the request: 25
1. Is a resident of the Commonwealth under KRS 61.870(10); and 26
2. The statement includes the manner in which the requester is a resident of 27
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the Commonwealth under KRS 61.870(10)(a) to (e)[(f)]; and 1
(f) The signature of the requesting party. 2
(5) The Attorney General shall make the form readily available to the public, including 3
on the Attorney General's website[Web site]. The form shall be accepted by every 4
public agency for any request for public records made on or after June 29, 2021. 5