Kentucky Attorney General Daniel Cameron has issued the 2022 edition of written “explanatory materials” relating to the open meetings and open records laws required by KRS 15.257. 

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=915

Given the General Assembly’s predilection for amending the open meetings and open records law — which triggers the attorney general’s duty to revise/distribute the publication — this has become an annual event. 

Although we are unable to locate the 2022 edition on the attorney general’s website, the publication is available at https://ag.ky.gov/Documents/2022%20-%20Open%20Records%20Open%20Meetings…

Entitled “The Kentucky Open Records and Open Meetings Act: A Guide for the public and public agencies,” the  publication is timely but otherwise wanting — some might go so far as to say “intellectually dishonest.”

In 2020, the current attorney general abandoned the decades’ old practice of issuing two publications. One publication was aimed at describing the statutory duties of public agencies and officials — and the other was aimed at describing the public’s rights — under the open meetings and open records laws. He also abandoned the practice of differentiating the statute from interpretation of the statute by italicizing the later. 

Commingling rights and duties, as well as interpretation and statute, yields a confusing end product that, at best, raises as many questions as it answers and, at worst, misleads.

More troubling are Cameron’s inconsistencies, omissions, and inclusions. 

For example, he begins by defining “public record” to specifically include both “emails” and “records that are not maintained on the agency’s premises.” 

Although we fully endorse this view, it directly conflicts with Cameron’s widely criticized 2021 open records decision declaring that emails and text relating to public business — transmitted on a public official’s or employee’s private device or account — are not public records because they are not “possessed” by the public agency the official or employee serves but instead maintained off agency premises. 

That position was wisely rejected by the Franklin Circuit Court. The court determined that both emails and texts — as described — are public records for open records purposes but that production of texts posed an unreasonable burden on the agency resisting disclosure. 

Both parties to the case — the Kentucky Open Government Coalition and the Department of Fish and Wildlife Resources Commission — appealed parts of the circuit court opinion. 

https://kyopengov.org/blog/kentucky-open-government-coalition-appeals-c…

Here are a few of the other curiosities the 2022 Guide contains.

• At page 6, Cameron states, “Effective June 29, 2021, only ‘residents of the Commonwealth’ may request to inspect public records. KRS 61.872(3).” 

The new “residency requirement” does not prohibit nonresidents from submitting requests. Some public agencies can and do waive the residency requirement.

The impact of the ill-conceived and self-serving 2021 amendment is to deprive nonresidents of the enforceable right to access public records by onsite inspection or by receipt of copies through the mail. Nonresidents may continue to submit open records requests but have no legal recourse if their requests are denied.

• At page 7, Cameron defines “public agency” for open records purposes but selectively excludes “[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . .  established, created, and controlled by a public agency.” 

Given the common misconception that “governing by committee” enables agencies to avoid accountability, this is a glaring omission. It was through this statutory definition that the Kentucky Supreme Court determined that the University of Louisville Foundation was subject to the open records law. 

The definition continues to figure prominently in open records disputes.

• At page 10, Cameron references Zillow, Inc. v Bork —F.Supp.3d—2022 WL 883849 (E.D. Ky. March 24, 2022). Acknowledging that “as of the date of this publication, that order is not yet final and may be subject to revision or appellate review,” Cameron explains that the federal case “held unconstitutional the exception that prevents charging a commercial use fee for media access to public records.” See Zillow, Inc. v. Bork, —F.Supp.3d—2022 WL 883849 (E.D. Ky. March 24, 2022) (“declaring KRS 61.870(4)(b)(1) unconstitutional in light of the restriction it places on the First Amendment rights of other commercial purpose requesters”).

As the Coalition noted in a May 20 post:

“The Kentucky Press Association, joined by American City Business Journals (Louisville Business First), filed an unopposed motion to intervene ‘for the purpose of appealing the [District] Court’s recent . . .  judgment.” 

https://kyopengov.org/blog/stakes-are-high-federal-case-deciding-consti…

The intervenors assert that neither Zillow nor any of the defendants “are positioned to safeguard the media’s interest” and that the KPA and LBF,  alone, “are positioned to consider—and vindicate—the press’ constitutional and statutory rights.” 

KPA and LBF ask that the court to declare the newspaper exception to the commercial requester provisions of the law is constitutional or — if the exception is unconstitutional — declare that Zillow is exempt from the commercial requester provisions rather than treat newspapers as commercial requesters.

Far from being an explanation of current law, Cameron’s reference to the case in materials distributed to state and local officials will result in confusion and imposition of excessive fees for public records while the legal issue is anything but settled.

• At page 9, Cameron states that “the public agency must respond to the request in writing within five business days from the date it was received.”

At page 12, Cameron states that the “public agency’s duty to respond within five business days begins to run on the first business day after the request is received.”

At page 36, Cameron’s sample “Rules and Regulations” state “The Records Custodian shall provide a response to the records request that is postmarked or electronically transmitted within five business days of the date the request is received.”

So which is it? “Five business days from the day it was received” or “five business days from the first business day after the request is received” — as his predecessors determined under the computation of time statute found KRS 446.030.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=19391

Since public agency violation of the open records law rests in the balance, Cameron must be consistent and clear.

• Finally, Cameron emphasizes throughout the materials that use of the standardized open records request form — the creation of which was mandated by the General Assembly in 2021 — is optional. Although he describes the content of a nonstandardized request, Cameron omits the long available sample nonstandardized request from the sample forms located at pages 29 through 35. 

The effect, arguably, is to discourage a requester who prefers to submit a nonstandardized requests or to compromise his/her ability to successfully do so. This is especially true since recent amendments to the open records law authorize agencies to require information in a nonstandardized request in addition to name, signature, and description of records sought — specifically, how the requester qualifies as a resident under the 2021 definition and a statement that the requester is (or is not) submitted for a commercial purpose. 

Enacted in 2005, the goal of KRS 15.257 was to “explain the procedural and substantive provisions of the Open Meetings Act and the Open Records Act” to public officials assigned specific duties under the laws by means of distribution of current explanatory materials to those officials.  The 2022 revision is far from a model of clarity. It fails to achieve this goal in these and many other respects.