Questions persist about what Kentucky’s residency requirement means and what public agencies can require of open records requesters under the 2021 law.
Some agencies have strayed from the law’s narrow language by requiring “proof” of residency. Some agencies require a driver’s license. Others require “certification” of residency that includes street address, city, and/or county.
This is impermissible. It constitutes subversion of the intent of the open records law, short of denial of inspection, and may be appealed to the Kentucky Attorney General under KRS 61.880(4).
The Kentucky Attorney General recently confirmed:
“Although the official records custodian may require ‘a statement’ from the applicant, KRS 61.872(2)(a) does not go so far as to allow the official records custodian to demand ‘proof’ of an applicant’s residential status. Significantly, the ‘statement’ does not have to be certified or made under oath.”
The open records law — which before June 29, 2021, stated that “[a]ny person shall have a right to inspect public records” — now states:
“Any resident of the Commonwealth shall have the right to inspect public records. The official custodian may require a written application, signed by the applicant and with his or her name printed legibly on the application, describing the records to be inspected. The official custodian may require the applicant to provide a statement in the written application of the manner in which the applicant is a resident of the Commonwealth under KRS 61.870(10)(a) to (f).”
The open records law defines “resident” as:
(a) An individual residing in the Commonwealth;
(b) A domestic business entity with a location in the Commonwealth;
(c) A foreign business entity registered with the Secretary of State;
(d) An individual that is employed and works at a location or locations within the Commonwealth;
(e) An individual or business entity that owns real property within the Commonwealth;
(f) Any individual or business entity that has been authorized to act on behalf of an individual or business entity defined in paragraphs (a) to (e) of this subsection; or
(g) A news-gathering organization as defined in KRS 189.635(8)(b)1.a. to e..”
A Kentucky resident satisfies the open records law if s/he checks the applicable box on the standardized request form developed by the Office of the Attorney General.
Alternatively, a Kentucky resident who prefers to draft his own request satisfies the open records law if s/he includes the following statement, or a similar statement, in her/his written request:
“I am a resident of Kentucky under KRS 61.870(10)(__)” and inserts the applicable section quoted above.
In most cases, the statement will read:
“I live in Kentucky and qualify as resident under KRS 61.870(10)(a).”
(I recently spoke with an individual who wishes to make an open records request to a Kentucky public agency. He previously lived in Kentucky but now lives in another state. Fortunately, the individual owns real property in Kentucky and qualifies as a resident under KRS 61.870(10)(e). His request should include the statement: “I own real property within the Commonwealth and therefore qualify as a resident under KRS 61.870(10)(e).”)
As noted, the standardized open records request form, prepared by the Attorney General under the new law, requires the requester to check a box indicating how s/he is a Kentucky resident as defined in KRS 61.870(10)(a) through (g).
But if a requester does not use the standardized request form, and instead drafts his/her own request, the agency “may require“ the requester to provide a statement in the request of the manner in which s/he is a Kentucky resident under KRS 61.870(10)(a) through (g).
This one page “cheat sheet” from the Coalition’s 2021 webinar summarizes each part of the statute defining residence and contains other useful guidance.
The Coalition 2021 webinar PowerPoint contains this *sample* open records request with our recommendations for preparing your own request under the new law.
SAMPLE OPEN RECORDS REQUEST
July 1, 2022
Dear Official Custodian of Records,
This is an open records request for a copy of the most recent audit of the Works Department which the members of the fiscal court discussed at the June 30 regular meeting. I prefer to receive the copy by email at my address, email@example.com.
This request is submitted for a noncommercial purpose.
I live in Kentucky and qualify as a resident under KRS 61.870(10)(a).
If the fee for copying these records is greater than $___, please notify me before making copies.
I look forward to receiving your written response within five business days of receipt of this request.
/s/ John Smith
Two final points:
• Public agencies must honor open records request for nonexempt public records submitted by a Kentucky resident. But nothing in the open records law prevents agencies from honoring a nonresident’s request. Nonresidents do not, however, have an enforceable right to public records in Kentucky.
• To avoid delays, a requester may overlook the public agency’s violation of the open records law and comply with the agency’s request for a photo ID or “certify” street address, city, county, etc.
That decision rests with the requester.