Portions of Kentucky's open records law have been challenged as unconstitutional in federal district court.

On July 9, Zillow — a real estate data company headquartered in Seattle — filed a legal action against the Kentucky Department of Revenue and six property valuation administrators (PVAs).

Zillow is asking the court to declare that the commercial fee provisions of the open records law (KRS 61.874 and KRS 61.8745) and a commercial fee statute that relates specifically to PVAs (KRS 133.047) are unconstitutional.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23061

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23062

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=45011

Further, Zillow asks that the court, "enjoin enforcement of those portions of the statutes that condition Zillow's receipt of public records upon satisfying onerous requirements that Kentucky law does not impose upon other similarly situated public records requesters, and which impose penalties for failing to disclose a 'commercial purpose.'"

Zillow maintains that these statutes violate the First and Fourteenth Amendments by discriminating against it "on the basis of its viewpoint, and the content of its speech." The statutes, Zillow maintains, violate "fundamental rights under the Free Speech and Equal Protection Clauses."

According to the complaint filed in federal district court, Zillow "does not charge users for accessing home listings on its website, but instead derives revenue from . . . selling advertising space on its webpage to other business see offering real-estate services and products."

Zillow regularly files open records requests with PVAs to maintain current information in its database.

In April 2019, it submitted request for electronic copies of the tax rolls in six counties: Shelby, Franklin, Henry, Owen, Trimble, and Clark. Zillow asked that if the PVAs deemed its intended use to be a commercial one, they explain their position.

The counties responded by requiring prepayment in amounts ranging from $9,924.40 to $39, 079.95 based on the commercial fee provisions — with little or no explanation.

Stated simply, Zillow objects to the classification of requesters as "noncommercial" or "commercial" and the higher copying fees and additional burdens imposed on the latter class of requesters.

This is the second time the commercial/noncommercial classification has been challenged. In the first case, which was initiated shortly after the commercial fee provisions of the open records law were enacted in 1994, the courts affirmed the constitutionality of the laws.

(An interesting note, prior to 1994 a request for a public record for a commercial use could be denied without a statutory basis—under the Public Access to Governmental Databases Act—even if the same record was released for a noncommercial use. The Act was subsequently repealed).

The facts of that case were, however, substantially different.

Amelkin v McClure was filed by a group of lawyers and chiropractors who objected to laws enacted in 1994 that impeded their ability to access accident reports.

KRS 189.635 limited access to the parties to the accident, their representatives, or news-gathering organizations for the purpose of broadcasting the news. Law enforcement was restricted from any other disclosure of accident reports.

KRS 61.874, the challenged open records statute, permitted public agencies to charge commercial users higher copying fees, to require the users to submit certified statements of intended commercial use, to require the user to enter into contracts for the stated use, and to recover monetary damages from the user for misrepresenting the intended commercial use.

Amelkin was litigated up to the US Supreme Court which, in 1999, had approved a California statute limiting access to public records (arrest records) to requesters whose intended use was scholarly, journalistic, political, governmental, or investigative. The Supreme Court rejected the challenge because the statute did not threaten anyone's right to engage in free speech, commercial or otherwise, but simply regulated access to information in the hands of the public agency.

The US Supreme Court sent Amelkin back down to the lower federal courts, and in 2001, the federal district court determined that Kentucky's accident report statute was constitutional because it did not restrict speech but simply regulated access to the state's accident reports.

https://casetext.com/case/amelkin-v-mcclure-5

https://law.justia.com/cases/federal/district-courts/FSupp2/178/766/250…

The court found that the challenge to the open records provision dealing with commercial purpose was moot. Because law enforcement could not disclose accident reports for a commercial purpose under KRS 189.635, the open records statute (KRS 61.874) permitting agencies to impose higher fees for copies requested for a commercial purpose did "not apply to disclosure of accident reports."

Clear as mud, right?

The point is that this is not the first challenge to the commercial fee provisions of the open records law. Assuming the Supreme Court case that guided the outcome in Amelkin v McClure is still good law, I think the laws could survive a "facial" challenge (because, on their face, they don't restrict speech but simply regulate access to public records).

But I'm not too sure they can survive challenge "as applied" to Zillow. Zillow does not sell the tax rolls for "commission, salary or fee." It provides the real estate data free of charge. It sells advertising space to defray its costs. Unless this is deemed an indirect commercial use of the data, Zillow may prevail on its "as applied" constitutional challenge because its intended use is non commercial.

I have not stayed current on caselaw construing records access statutes that differentiate between commercial and noncommercial use of public records, nor am I qualified to analyze constitutional issues.

But this is a *major* development. We will keep you posted as the case proceeds through the courts.