The Kentucky Attorney General has issued the first open records decision affirming the denial of an open records request directed to a Kentucky agency based on the requester's lack of residency.

https://ag.ky.gov/Resources/orom/2021/21-ORD-193.pdf

To what Kentucky agency was the request directed? Ironically, the Office of the Kentucky Attorney General.

In August, Daniel Zulawski — an inmate of the Federal Medical Center, Devens, in Massachusetts — requested a copy of a Memorandum of Understanding between the United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, and the Kentucky Attorney General's Office, relating to the Internet Crimes against Children Task Force Program.

Because the request did not — obviously could not — include a statement that Zulawski was a resident of Kentucky, the Kentucky Attorney denied the request.

The Kentucky Open Government Coalition vigorously opposed the "residents only" requirement — one of a number of restrictions on public records access enacted by the General Assembly in the 2021 Regular Session as part of HB 312. In a letter of opposition transmitted to every Kentucky Senator immediately after the House fast tracked passage, the Coalition — and 61 co-signers from across the United States, including the Associated Press, Scripps Media, the National Freedom of Information Coalition, the League of Women Voters, Common Cause, and the ACLU along with broadcasters, reporters, editors, former state representatives and others — asked whether Kentucky would "join the ranks of that small minority of states which have enacted retrogressive laws that impede both nonresident and resident access to public records, that are easily evaded, and that are inconsistently enforced, on the thin claim that the burden on taxpayers will be lifted."

https://www.facebook.com/419650175248377/posts/868954963651227/?d=n

The answer, sadly, was "yes."

As HB 312's June 29 effective date approached, we reached out the the Attorney General to determine what steps his office had taken to implement his newly assigned duties — the discharge of which was the lynchpin of every other public agencies' ability to discharge its newly assigned duties.

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

We were pleasantly surprised, albeit somewhat skeptical, to hear — or think we heard — a high ranking assistant attorney general advise us that the office would promote leniency in the enforcement of the residency requirement.

The office later backpedaled on this statement, advising us that we misunderstood and that "leniency" would only be encouraged as to the *already permissive* standardized open request form requirement.

The greatest irony may, therefore, be that the Attorney General— whose staff once advised us that they would encourage leniency in the enforcement of the residency requirement — is the first to be challenged for strictly enforcing the requirement by denying a nonresident records requester access to a public record. The Kentucky Attorney General's denial is also the first to be affirmed — by the Kentucky Attorney General.

Did the Attorney General have my options here? Although, arguably, he could have waived the residency requirement in originally responding to Zulawski, on appeal he was bound to affirm the denial based on the statutory requirement.

And for that, we can thank the Kentucky General Assembly.

Is this the first time since June 29 that a nonresident records requester has been thwarted in his or her efforts to obtain a Kentucky public record? Again, the answer is "no."

And again, we can thank the General Assembly for undermining the public's right to know.