Annotations for Statute

Although the Department of Revenue (DOR) probably should have raised its defense before the Attorney General, the DOR sufficiently preserved this issue when it included the defense as an aggregate reason for denying an attorney’s request for certain documents. Wyrick v. Dep't of Revenue, 2008 Ky. App. LEXIS 169 (Ky. Ct. App. May 30, 2008), aff'd, 323 S.W.3d 710, 2010 Ky. LEXIS 260 (Ky. 2010).

Because the Open Records Act, did not contain a timeframe for challenging an agency’s denial to the Attorney General, an attorney’s appeal to the Attorney General would have been timely whenever she chose to file it. Wyrick v. Dep't of Revenue, 2008 Ky. App. LEXIS 169 (Ky. Ct. App. May 30, 2008), aff'd, 323 S.W.3d 710, 2010 Ky. LEXIS 260 (Ky. 2010).

Circuit court made an erroneous factual conclusion that all the records in the investigation file were covered by the Family Educational Rights and Privacy Act (FERPA) because although the university was prohibited from releasing for the Attorney General’s in camera review education records with unredacted personally identifying information, not all the records requested were education records, and FERPA did not prohibit their release. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

General Assembly certainly intended for the Attorney General (AG) to save the court and the requesters time and costs by designating the AG as the “watchdog” in open records cases; it conferred upon the AG the duty to adjudicate open records dispute and, to do so, gave the AG the ability to substantiate an agency’s claims that records are exempt through an in camera review of the records requested. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

In a case under the Kentucky Open Records Act, because the alleged misstatements that an attorney for the Kentucky Education and Workforce Development Cabinet made that allegedly caused emotional distress were part of an adjudicatory process before the Kentucky Attorney General, the statements were entitled to absolute judicial immunity. Taylor v. Maxson, 483 S.W.3d 852, 2016 Ky. App. LEXIS 15 (Ky. Ct. App. 2016).

In this Open Records Act action, the order was reversed in part because the circuit court lacked subject matter jurisdiction to conclude the university violated the Open Meetings Act where neither party invoked the circuit court’s jurisdiction to enforce provisions. Univ. of Ky. v. Hatemi, 636 S.W.3d 857, 2021 Ky. App. LEXIS 114 (Ky. Ct. App. 2021).

Lawsuit should not have been filed against an attorney for the Kentucky Education and Workforce Development Cabinet based on an allegation that there was a failure to respond in 3 days because the Kentucky General Assembly intended suits based on violations of the Kentucky Open Records Act, including the time provisions at issue here, to be brought against the state agencies themselves and not against the individuals employed by those agencies. Taylor v. Maxson, 483 S.W.3d 852, 2016 Ky. App. LEXIS 15 (Ky. Ct. App. 2016).

Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982); Frankfort Pub. Co. v. Kentucky State University Foundation, Inc., 834 S.W.2d 681, 1992 Ky. LEXIS 103 (Ky. 1992); Zink v. Department of Workers’ Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994); Blair v. Hendricks, 30 S.W.3d 802, 2000 Ky. App. LEXIS 69 (Ky. Ct. App. 2000); Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 (Ky. 2008); Lexington H-l Servs. v. Lexington-Fayette Urban County Gov’t, 297 S.W.3d 579, 2009 Ky. App. LEXIS 51 (Ky. Ct. App. 2009); Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

Once it has been determined that records requested under the Kentucky Open Records Act no longer exist, the responsible agency is required to provide the requester with a written explanation for the records’  nonexistence. Therefore, an inmate was entitled to relief under the Act based upon a request for certain jail records, even though the records allegedly no longer existed. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

Public agency’s response to a subpoena should be independent and separate from its response to an open records request. The reason for objecting to a subpoena should be based on the rules of discovery and not based on the Kentucky Open Records Act, Ky. Rev. Stat. Ann. § 61.870 et seq., and, consequently, records exempt from disclosure through the Act may still be discoverable in a civil case and the discovery limited by the Kentucky Rules of Civil Procedure governing pretrial discovery. Parish v. Petter, 608 S.W.3d 638, 2020 Ky. App. LEXIS 100 (Ky. Ct. App. 2020).

Some details of the Open Records Law present interferences inconsistent with the orderly conduct of court business, to wit, the requirement that courts adopt and post rules and regulations, that they conform to the procedure set forth in KRS 61.880, and that as to the accessibility of their records they adhere to the list of exceptions stated in KRS 61.878, and such requirements will not be accepted. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 (Ky. 1978).

Summary judgment finding an Open Records Act (ORA) violation was proper against the Cabinet for Health and Family Services (Cabinet) because the Cabinet's failure to give the Attorney General enough information to answer a request to review the Cabinet's denial caused the Attorney General to find the Cabinet violated the ORA, which the Cabinet did not timely appeal, under Ky. Rev. Stat. Ann. § 61.880(5)(a), giving the finding the force and effect of law, under Ky. Rev. Stat. Ann. § 61.880(5)(b). Cabinet v. Todd Cnty. Std., 488 S.W.3d 1, 2015 Ky. App. LEXIS 171 (Ky. Ct. App. 2015).

Trial court had jurisdiction to review the decision of the Kentucky Legislative Research Commission (LRC) regarding a newspaper’s request for legislative records because (1) the court’s statutory jurisdiction was not limited to records requests or cases where the LRC issued no decision in 30 days, and (2) the Open Records Act’s statutory judicial review right was incorporated into the governing statute. Harilson v. Shepherd, 585 S.W.3d 748, 2019 Ky. LEXIS 380 (Ky. 2019).

University violated the Kentucky Open Records Act because it refused to allow the Attorney General (AG) to review redacted records requested by the student newspaper; the refusal made the AG’s review of the matter impossible, leaving the AG with no alternative but to decide that the university had release the records to the newspaper.  Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

University violated the Open Records Act because the university did not (1) show a specific exemption applied to a particular record, (2) redact personally identifying information, or (3) show records were exempt through a proper index, and (4) refused to let the Attorney General review redacted records.  Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

Where county attorney did not attempt to establish that disclosure of records relating to child support payments requested by attorney representing father of minor child would constitute a clearly unwarranted invasion of personal privacy, and where county attorney did not reference relevant state or federal law barring disclosure or explain its application to the disputed records, county attorney’s response failed to conform to subsection (2)(c) of this section and KRS 61.882(3). Edmondson v. Alig, 926 S.W.2d 856, 1996 Ky. App. LEXIS 124 (Ky. Ct. App. 1996).