Key to the implementation of the most far reaching changes to the open records law that will take effect in just over a month is the *Kentucky Attorney General.*

Under newly enacted laws, it is the Attorney General who is directed to "promulgate by administrative regulation under KRS Chapter 13A a standardized form that may be used to request public records from a public agency."

https://apps.legislature.ky.gov/record/21rs/hb312.html

The availability of that form is the lynchpin to public agencies' compliance with their own newly assigned open record duties and the ability of the public to make open records requests.

Agencies must include the standardized request form in the KRS 61.876 rules governing access to their records — along with the "mailing address, e-mail address, and phone number of the official custodian of the records or his or her designee to which all requests for public records shall be made" — that must, for the first time, be posted on the agencies' websites as well as "in a prominent location accessible to the public."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23063

Open records requesters may use the standardized form to ensure their requests are compliant with the new laws, including verification of residency, a requirement under the 2021 laws. Public agencies must accept the completed standardized form.

Ideally, the standardized form would be available on or before June 29 to facilitate a smooth transition.

With this in mind, the Kentucky Open Government Coalition reached out to the Attorney General in a May 17 letter. A copy of our letter is linked below.

Although we were pleased with the swiftness of the OAG's response, we were concerned about their description of how they intend to discharge this duty.

The office advised us that the Attorney General "plan[s] to provide the sample form in the upcoming release of the updated guide to Open Records [required under KRS 15.527 when the open records or meetings laws are amended]. The Office will also separately submit a proposed regulation to incorporate that form by reference. We do not intend to submit an emergency regulation."

In a follow up, we asked about the anticipated date of release of the open records guide. We were advised that the Attorney General "hope[s] to release it in the near future."

In a subsequent letter, also linked below, we expressed our concerns about "the timing, reach, and methodology of this approach." In particular, we observed:

"Introducing/circulating the standardized open records request form to public agencies and the public — by distribution of the brochure followed by promulgation of a regulation rather than the reverse— precludes the opportunity for meaningful public comment on the form. . . . The absence of any vetting process before it is distributed/circulated with the Attorney General's imprimatur seems ill-advised. With respect, this 'cart before the horse' approach does not appear to have been envisioned by lawmakers and may result in unnecessary confusion and potential disputes/appeals."

We proposed a standardized request form "by emergency regulation, followed by a standard regulation within 270 days — that includes an opportunity for public comment."

We were pleased when the Attorney General, through staff, contacted us by phone to discuss these concerns.

From our discussion with the OAG, we learned:

• The Attorney General has considered this and other options, none ideal, and believes publication of the standardized request form in the KRS 15.527 open records guide will permit informal public comment and improvement before a regulation is filed and formal public comment is permitted. Clearly, a "final" standardized request form will not be available on June 29. The standard "nonemergency" regulation process is, at best, a six to nine month process.

• The proposed standardized request form and open records (and meetings) guide are currently under revision. The stated goal is an expedited release — KRS 15.527 requires the Attorney to distribute the new open records materials within 90 days of the effective date of legislation — to a broader audience of public officials than KRS 15.527 requires (including state officials).

• The Attorney General is open to unofficial vetting of the standardized request form before it is presented in the revised KRS 15.527 open records and open meetings guide. He will make a copy available to the Coalition and other stakeholders for comment in advance of its distribution.

• Finally, and very importantly, the Attorney General will encourage public agencies to take a lenient approach to use of the standardized form as well as enforcement of the residency requirement. Although the revised law vests only residents with the •right• to use the open records law, public agencies are not required to enforce this limitation. They may waive the new requirement if they wish.

The Coalition certainly welcomes the latter news, though we remain concerned about the ability of public agencies across the state to discharge *their* newly assigned duties on and after June 29 and the ability of the public to continue to successfully make open records requests to less than lenient agencies.

We will work with the Office of the Attorney General to help ensure the most seamless transition as June 29 approaches, and we will continue to closely monitor the office's actions, holding it to the statements made in response to our questions. We will also undertake educational outreach that will include an upcoming webinar aimed at "arm[ing the public] with the power which knowledge gives."