Annotations for Statute

Although the former employees alleged that the general manager’s production of the disciplinary action forms in response to a record request was actionable because, at least as to two employees, the forms contained untrue statements about the employees acting dishonestly when they examined confidential information on the employer’s computer system without permission following one of the employee’s discharge, the general manager’s decisions to discharge the employees were not conditional and did not need the board of directors’  approval; the general manager had the authority to terminate employees, and the terminations represented his final action. That the discharges could potentially have been set aside by the board during the grievance hearing did not transform the disciplinary action forms into preliminary drafts, notes, or correspondence. Burgess v. Paducah Area Transit Auth., 387 Fed. Appx. 538, 2010 FED App. 0421N, 2010 U.S. App. LEXIS 14384 (6th Cir. Ky. 2010).

An agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is a public record and is open to inspection by any person as provided in subsection (1) of this section and the government is without any basis upon which to claim a right of privacy and unless such documents are excluded from disclosure by one or more provisions of the Open Records Act, they must be produced. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 (Ky. 1997).

Bid protestor was entitled to seek judicial review of the award of the contract for statewide genetic testing services for the 2004 fiscal year, which was made to another vendor, even though the contract had expired as a protestor has standing to seek judicial review as such a matter presents a case and controversy despite the contract ending. However, judgment in favor of the various Commonwealth of Kentucky agencies and the winning bid maker was upheld on appeal, because the substance of the protestor’s complaint alleged alternative interpretation of the bid terms, which was a discretion afforded to the Commonwealth as a contracting officer in a negotiated procurement, and the protestor provided no valid reason, such as fraud, in challenging the award to the winning bid maker. Lab. Corp. of Am. Holdings v. Rudolph, 184 S.W.3d 68, 2005 Ky. App. LEXIS 169 (Ky. Ct. App. 2005).

Conciliation agreement between the city and the employee was a settlement involving the payment of public funds, which remained a public record, and to the extent that the conciliation agreement contained personal information including the employee’s salary and accommodations, the disclosure of that information was not an unwarranted invasion of her privacy such that it would have been highly offensive to the reasonable person. Therefore, because the conciliation agreement was a public record under KRS 61.870 et seq., the office manager did not intrude into the employee’s right of seclusion by possessing a public record, and thus, the employee’s claim against the office manager for unreasonable intrusion upon the seclusion of another based on her alleged possession of her conciliation agreement failed as a matter of law. Washington v. City of Georgetown, 2009 U.S. Dist. LEXIS 16394 (E.D. Ky. Mar. 3, 2009).

Family Educational Rights and Privacy Act (FERPA) did not bar a university from releasing to a newspaper all records sought under the Open Records Act because, while FERPA barred release of unredacted education records contained in a Title IX investigation file, not all the records sought were education records directly relating to a student.  Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

File of complaints by psychologist’s clients alleging sexual misconduct was a public record containing information “of a very personal nature,” disclosure of which would have constituted a serious invasion of personal privacy. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 (Ky. 1992).

Former medical resident student did not established that a university’s initial decision to withhold records from her was done willfully, particularly when there was evidence that university officials were not aware that the other documents existed, and once they learned of the other records, they produced them to the student; also the student could not recover attorney’s fees and other expenses after filing a lawsuit to obtain the documents. Shyamashree Sinha v. Univ. of Ky., 284 S.W.3d 159, 2008 Ky. App. LEXIS 375 (Ky. Ct. App. 2008).

General Assembly did not intend to mandate an iron rule of non-disclosure whenever an exemption contained in the Kentucky Open Records Act applies because such a rule would run counter to the principle, fundamental in the law, that rights, even fundamental rights, may be waived, and the Act’s express policy, is the free and open examination of public records. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 (Ky. 2013).

In construing the term “party” in KRS 61.878(1), the appellate court attached significance to the Legislature’s word choice, which was “party” not “person” and interpreted this to mean that a newspaper seeking to inspect records of a prison inmate was not a “party” in the litigation involving the inmate, thus KRS 61.878(1) was inapplicable, and the documents requested were open for inspection pursuant to this section. Department of Corrections v. Courier-Journal & Louisville Times, 914 S.W.2d 349, 1996 Ky. App. LEXIS 10 (Ky. Ct. App. 1996).

In determining whether a request for certain public records constitute a clearly unwarranted invasion of person privacy under KRS 61.878(1)(a), the court must first determine whether the subject information is of a “personal nature” and if it finds it is a must then determine whether public disclosure “would constitute a clearly unwarranted invasion of personal privacy.” This latter determination entails a “comparative weighing of antagonistic interests” in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

Kentucky State Police violated the Open Records Act, Ky. Rev. Stat. Ann. § 61.870 et seq., by failing to produce its entire Uniform Citation File database when requested by a reporter where the time and manpower required to separate exempt material, standing alone, was not sufficiently clear and convincing evidence to show an unreasonable burden under Ky. Rev. Stat. Ann. § 61.872(6). Moreover, the undisputed evidence noted that the necessary categorical extractions could be performed for $15,000, and electronically separating exempt material was not equivalent to creating a new record given the mandate in Ky. Rev. Stat. Ann. § 61.878(4). Commonwealth v. Courier Journal, 601 S.W.3d 501, 2020 Ky. App. LEXIS 42 (Ky. Ct. App. 2020).

Kentucky takes the view that the Family Educational Rights and Privacy Act (FERPA) prohibits disclosure of education records under the Kentucky Open Records Act; Kentucky has adopted its own version of FERPA, applicable to elementary and secondary schools indicating the General Assembly has determined that education records are not subject to the Open Records Act. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

Marina Management Servs. v. Cabinet for Tourism, Dep’t of Parks, 906 S.W.2d 318, 1995 Ky. LEXIS 62 (Ky. 1995); Cincinnati Enquirer v. City of Fort Thomas, — S.W.3d —, 2011 Ky. App. LEXIS 202 (Ky. Ct. App. 2011).

Nothing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application describing the records to be inspected. The General Assembly chose only to require the record to be described; it did not add any modifiers like “particularly” described. Commonwealth v. Chestnut, 250 S.W.3d 655, 2008 Ky. LEXIS 116 (Ky. 2008).

Once it has been determined that records requested under the Kentucky Open Records Act no longer exist, the responsible agency is required to provide the requester with a written explanation for the records’  nonexistence. Therefore, an inmate was entitled to relief under the Act based upon a request for certain jail records, even though the records allegedly no longer existed. Eplion v. Burchett, 354 S.W.3d 598, 2011 Ky. App. LEXIS 215 (Ky. Ct. App. 2011).

Public has an interest in the investigatory methods used by its public agencies and to know that a publicly funded university has complied with all federal and state laws, including of the United States Education Amendments of 1972; an investigation into a professor’s sexual abuse of a student is of public interest, not because of the identity of the victim or the details, but because of the interest in seeing universities in compliance with Title IX and allegations dealt with appropriately. Kernel Press, Inc. v. Univ. of Ky., 2019 Ky. App. LEXIS 92 (Ky. Ct. App. May 17, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 905 (Ky. Ct. App. May 17, 2019).

Resident had standing to sue under Kentucky’s Open Records Act (KORA), KRS 61.871, 61.872, and the trial court erred when it dismissed the resident’s case for lack of standing; KORA granted the resident standing to sue for damages to which a person requesting public records may be entitled pursuant to that act. Taylor v. Barlow, 378 S.W.3d 322, 2012 Ky. App. LEXIS 170 (Ky. Ct. App. 2012).

The Legislature in adopting the open records law clearly intended to grant any member of the public as much right to access to information as the next; the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 1994 Ky. App. LEXIS 141 (Ky. Ct. App. 1994).

Unpublished decision: Department of Revenue was required to produce for inspection redacted copies of its final rulings because the production of the material a tax attorney and tax analysts sought was required by the Open Records Act; the Department's final rulings contained information related to its reasoning and analysis with respect to its task in administration of the tax laws, and that information could be made available without jeopardizing taxpayers' privacy interests under the Taxpayers' Bill of Rights.  Fin. & Admin. Cabinet v. Sommer, 2017 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 13, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 624 (Ky. Ct. App. Jan. 13, 2017).

Unredacted copies of final settlement agreements which showed payments made by government in connection with lawsuits against the police department were not covered by the privacy exception contained in subdivision (1)(a) of KRS 61.878 even though two or three of the agreements contained confidentiality clauses whereby settlement recipients and their attorneys agreed not to disclose the terms of the agreements. Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 1997 Ky. LEXIS 38 (Ky. 1997).