A timely question in light of recent national events:
What penalties does Kentucky law impose on improper removal of public records?
KRS 171.990 — the penalties section of Chapter 171 of the Kentucky Revised Statutes, relating to the Kentucky Department for Libraries and Archives and state and local records management programs — cross-references multiple sections of the laws governing retention, preservation, and lawful destruction of public records.
Until the enactment of the open records law in 1976, Chapter 171 of the Kentucky Revised Statues governed access to public records.
(The original “open records law” was enacted in 1958 and found at KRS 171.650. Long since repealed, the law stated:
“Unless otherwise provided by law, all papers, books, and other records of any matters required by law or administrative rule to be kept by any agency, and all records arising from the exercise of functions authorized thereby, are public records and shall be open to inspection by any interested person subject to reasonable rules as to time and place of inspection established under KRS 12.080. A certified copy of any public record, subject to any such rules in effect, shall be furnished by the custodian thereof, to any person requesting it, upon payment of such reasonable fee therefore as may be prescribed by law or by administrative rule.”
Note 5, “Access to Public Documents in Kentucky,” Kentucky Law Journal (1975) https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=2403&context=klj,
Most pertinent in this context, KRS 171.710 and 171.720 require the safeguarding of public records against removal or loss and notification to KDLA of “any actual, impending or threatened unlawful removal, defacing, alteration or destruction of records in the custody of the agency,” and initiation of action “through the Attorney General for recovery of such records as shall have been unlawfully removed.”
Penalties for violation of these statutes are, as noted, found at KRS 171.990. That statute provides:
“Any person knowingly violating the rules and regulations of the department [for Libraries and Archives] pursuant to the provisions of KRS 171.450, 171.560, 171.670, 171.710, or 171.720 is guilty of a Class A misdemeanor and is also liable for damages or losses incurred by the Commonwealth. Any state employee who knowingly violates these provisions shall also be subject to dismissal from state employment upon a determination of fact, at a hearing, that a serious violation did occur. The employee's right to appeal to the state personnel board is not abridged or denied. In the event of an appeal, the decision of the state personnel board is final.
“(4) State employees dismissed under the provision of subsection (3) of this section shall have the right to reapply for state employment in accordance with state personnel rules governing dismissal. Such individuals shall have the full rights and privileges accorded under applicable equal opportunity laws.”
A person who unlawfully removes public records under Chapter 171 of Kentucky law is:
• punishable by a fine of up to $500 and up to one year in prison;
• liable for damages or losses incurred by the Commonwealth; and
• subject to dismissal from state employment for “a serious violation.”
A separate statute, KRS 519.060, prohibits tampering with public records.
The statute provides:
“A person is guilty of tampering with public records when . . . (b) Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes, or otherwise impairs the availability of any public records; or
“Knowing he lacks the authority to retain it, he intentionally refuses to deliver up a public record in his possession upon proper request of a public servant lawfully entitled to receive such record for examination or other purposes.”
Tampering with public records is a Class D felony. A person who violates KRS 519.060 is punishable by a fine if $1000 to $10,000 and imprisonment for one to five years.
So says the Kentucky Revised Statutes.
Has any public employee or official been prosecuted under these statutes?
We know of none.
Although there have been instances in which efforts were undertaken by KDLA to recover unlawfully removed public records from a former official, past attorneys general have interceded to halt the destruction of public records, and lawsuits have been filed by state agencies against former officials/employees to secure the return of public records, no employee or official has, to our knowledge, paid a fine, been imprisoned, or forfeited public employment/office because s/he violated these laws.
“A written memorial of a transaction in a public office, when made by a public officer, becomes a public record belonging to the office, and not his private property.” 76 C.J.S. Records § 2.
Stated alternatively, “[a]n officer who has public records in his or her charge is the mere custodian of those records, the records are not the private property of the officer.” 66 AmJur2d, Records and Recording Laws § 5.
So says the two most widely quoted and authoritative legal encyclopedias.
There’s always a first time.