In anticipation of the June 29 effective date of 2021 HB 312, the Kentucky Open Government Coalition today submitted comments, and a proposed standardized request form, to the Office of the Attorney General in response to the Attorney General's request for input.
Among other things, HB 312 requires the Attorney General to promulgate by regulation a standardized open records request form that may be used by open records requesters.
Although the Attorney General's staff has indicated that the office will urge leniency in public agency enforcement of these new requirements, we remain concerned that the requirements may be exploited by some agencies to obstruct public access to public records.
As we have stated before, the request form is the lynchpin for public agencies' compliance with their newly assigned duties under HB 312, including the posting of the standardized request form on their websites—as well as in a prominent location accessible to the public—and making copies of the request form available to the public.
The availability of the form is also essential to the public as Kentucky transitions to these substantial changes in the open records law, including the new residency requirement.
Following our discussions with the office, we received a June 4 letter from the Attorney General containing a preliminary draft of the request form. The Attorney General explained that the form "will be incorporated by reference in an emergency regulation that will be promulgated on June 23, 2021. On that date, the Office also plans to file an identical ordinary regulation." The latter will include an opportunity for formal public comment.
The Attorney General requested comments on the "preliminary version" of the request form from the Coalition and other stakeholders on or before June 21 and before the June 23 filing of the regulations.
The Coalition's comments, and proposed request form, appear below. We focused on "citizens' understanding and ease of use of the open records law." With this in mind, we suggested modifications aimed at clarification.
Our recommendations include:
• Numbering the fields to be filled out and providing instructions on the back of the form;
• Allowing a choice of request for inspection or copies;
• Separating the "Contact Information" section to only require requester's mail/email if copies are requested;
• Adding two optional questions for requests for copies relating to formatting and copying costs;
• Modifying the commercial purpose section;
• Modifying the residency section;
• Making the form a fillable PDF.
Our explanations for each of these suggested changes are detailed in our letter, and are reflected in the modified standardized request form, both attached.
We are hopeful that this dialogue with the Office of the Attorney General will continue.
The Kentucky Open Government Coalition will provide a free webinar on the changes to the open records law the week before the changes take effect. Details will follow.
