Question of the day: Is a requester required to present proof of Kentucky residency to obtain public records from a public agency under new open records laws that took effect on June 29?
Answer: No. The new law does not require proof of residency.
A recent Tweet about open records training for the State Government Bar Association by Kentucky Open Government Coalition co-director Jeremy Rogers prompted this question:
Is an ID required to prove Kentucky residency in order to make an open records request under the new laws?
https://twitter.com/kyopengov/status/1410034004246642694?s=11
https://apps.legislature.ky.gov/recorddocuments/bill/21RS/hb312/bill.pdf
The standardized request form — prepared by the Attorney General under the new law — requires the requester to check a box indicating how s/he is a Kentucky resident as defined in KRS 61.870(10)(a) through (g).
https://ag.ky.gov/Documents/2021_Standardized_Open_Records_Request_Form…
If a requester does not use the standardized request form, and instead drafts his/her own request, the agency "may require" the requester to provide a statement in the request of the manner in which s/he is a Kentucky resident under KRS 61.870(10)(a) through (g).
While some states, including Tennessee, authorize public agencies to demand proof of residency — resulting in inconsistent enforcement, confusion, and unnecessary delays — the only positive in Kentucky's new residency rule is the "honor code" under which residents and public agencies operate.
https://www.google.com/amp/s/fox17.com/amp/news/local/audit-many-entiti…
https://tcog.info/id-requirements-details/?fbclid=IwAR3lf0BxiJl15P_1sJ1…
In other words, Kentucky agencies cannot condition a requester's use of the open records law on production of proof of residency.
A Kentucky public agency's refusal to produce public records based on the requester's inability or refusal to produce proof of residency might, in fact, be successfully appealed under KRS 61.880(4) as a subversion of the intent of the open records law short of denial of inspection.
To avoid potential delays, a requester drafting his or her own request should include a statement that s/he is a resident and indicate under what part of the definition of "resident" s/he qualifies as a resident.
This one page "cheat sheet" from the Coalition's webinar summarizes each part of the statute defining residence and contains other useful guidance.
https://drive.google.com/file/d/1g0nFk1NBYbCayTLRZKe6WpVmNBJPlhCF/view?…
The Coalition webinar PowerPoint contains this *sample* open records request with our recommendations for preparing your own request under the new law.
SAMPLE OPEN RECORDS REQUEST
July 1, 2021
Dear Official Custodian of Records,
This is an open records request for a copy of the most recent audit of the Works Department which the members of the fiscal court discussed at the June 30 regular meeting. I prefer to receive the copy by email at my address, j.smith@email.com.
This request is submitted for a noncommercial purpose.
I live in Kentucky and qualify as a resident under KRS 61.870(10)(a).
If the fee for copying these records is greater than $___, please notify me before making copies.
I look forward to receiving your written response within five business days of receipt of this request.
Respectfully,
/s/ John Smith
https://drive.google.com/file/d/18Iw585d27_4QEDXvzk960WgvvcUGbL8T/view
A final word on the ill-conceived, ill-advised, poorly drafted, and largely unenforceable residency rule. Public agencies must honor any open records request for nonexempt public records submitted by a Kentucky resident. But there is nothing to prevent agencies from honoring a nonresident's request. Nonresidents will not, however, have an enforceable right to public records in Kentucky.
