Annotations for Statute

Disclosure of records arguably containing information of a private nature about a former state cabinet official and lobbyist was required by the Kentucky Open Records Act because the public’s interest in inspection greatly outweighed any privacy interest that may have existed; thus, the privacy interest exception in KRS 61.878(1)(a) was inapplicable. Doe v. Conway, 357 S.W.3d 505, 2010 Ky. App. LEXIS 221 (Ky. Ct. App. 2010).

District Court vacated the denial of a transit authority’s motion for summary judgment on two employees’  defamation claims because the Kentucky Open Records Act required release of the documents at issue; because the employees were not required to grieve their terminations, the disciplinary actions taken by their manager could have been the final action and, therefore, KRS 61.878 did not exempt the records from the requirements of the Act. Because the Act applied, the transit authority was required by law to release the documents. Burgess v. Paducah Area Transit Auth., 2006 U.S. Dist. LEXIS 54136 (W.D. Ky. Aug. 2, 2006).

Fact that a complaint against a police officer was considered at a closed hearing, as required by a legislative enactment, did not mean that the complaint which gave rise to the hearing was exempt from public disclosure under KRS 61.878(1)(l). Palmer v. Driggers, 60 S.W.3d 591, 2001 Ky. App. LEXIS 1165 (Ky. Ct. App. 2001).

Fact that a police officer resigned before the conclusion of his termination hearing did not render the complaint which gave rise to the termination hearing “preliminary materials,” which were not subject to public disclosure under the Kentucky Open Records Act, KRS 61.878. Palmer v. Driggers, 60 S.W.3d 591, 2001 Ky. App. LEXIS 1165 (Ky. Ct. App. 2001).

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).

Future donors to the University of Lousiville Foundation are on notice that their gifts are being made to a public institution and, therefore, are subject to disclosure under KRS 61.871 regardless of any requests for anonymity. Cape Pub'ns, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 2008 Ky. LEXIS 176 (Ky. 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).

General Assembly mandated the non-disclosure of exempt records, a mandate the person or entity whose interest the exemption protects may seek to enforce in the circuit court; disclosure of an exempt record is not precluded if the intended beneficiaries waive their right to non-disclosure, and the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor an unlimited discretion to deny disclosure, but it does not preclude him or her from allowing it. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 (Ky. 2013).

If subsection (2) of this section means materials and data in the process of being accumulated, or which already have been accumulated, to the end that the court may select from it such portions as it deems pertinent for comparison with the facts of a case or cases to be reviewed by it, then a compliance with the statute would interfere with the court’s work. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 (Ky. 1978).

In a case where a newspaper sought disclosure, pursuant to the Open Records Act, KRS 61.870 et seq., of performance evaluations of an employee who was convicted of theft arising from his employment with an agency, redaction of the records to remove truly personal information was the best solution. Cape Publ'ns v. City of Louisville, 191 S.W.3d 10, 2006 Ky. App. LEXIS 101 (Ky. Ct. App. 2006).

In construing the term “party” in subsection (1) of this section, 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, this section was inapplicable, and the documents requested were open for inspection pursuant to KRS 61.872. 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).

In light of the clear recognition of an individual’s right of privacy in Kentucky, the question of whether, absent a court order, information should be withheld from disclosure pursuant to subdivision (1)(a) of this section, is subject to a test of balancing the interests of the parties as well as those of the public, measured by the standard of a reasonable man. Board of Education v. Lexington-Fayette Urban County Human Rights Com., 625 S.W.2d 109, 1981 Ky. App. LEXIS 302 (Ky. Ct. App. 1981).

In this action involving the failure of the Shively Police Department (SPD) to make disclosures pursuant to the Open Records Act (the ORA) on the basis that it would cause harm to an ongoing criminal investigation, dashcam and bodycam footage of the pursuit and accident could not be withheld in full because they contained footage of the fatal accident and the privacy exemption was not nearly so broad under the circumstances as to prohibit all disclosure of the footage made of the chase and collisions. Courier-Journal, Inc. v. Shively Police Dep't, 2022 Ky. App. LEXIS 99 (Ky. Ct. App. Nov. 10, 2022).

It was proper to refuse to enjoin the Attorney General from disclosing a statement an owner gave because the breach of Transportation Cabinet contracting regulations and the Attorney General’s response remained matters of sufficient public interest to warrant an invasion of the owner’s limited interest in keeping his account under wraps; the possibility of a limited amount of purely personal information does not justify the blanket non-disclosure of a record with substantial public import. Lawson v. Office of the AG, 415 S.W.3d 59, 2013 Ky. LEXIS 640 (Ky. 2013).

KRS 61.878(1), specifically directing that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery, overrides the provisions of KRS 61.878(3), dealing with the rights of a public agency employee, including a university employee, to inspect and to copy any record that relates to him. Hahn v. Univ. of Louisville, 80 S.W.3d 771, 2001 Ky. App. LEXIS 84 (Ky. Ct. App. 2001).

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).

Ky. Rest. Concepts, Inc. v. City of Louisville, 209 F. Supp. 2d 672, 2002 U.S. Dist. LEXIS 11011 (W.D. Ky. 2002);                         Iola Capital v. Pub. Serv. Com. of Ky., 2022 Ky. App. LEXIS 69 (Ky. Ct. App. July 15, 2022);                         Courier-Journal, Inc. v. Shively Police Dep't, 2022 Ky. App. LEXIS 99 (Ky. Ct. App. Nov. 10, 2022).

Ky. Rev. Stat. Ann. § 61.878(1)(a) did not permit the withholding of the entire internal affairs files, but disclosure of information that was personal in nature, such as social security numbers, was prohibited and constituted an unwarranted invasion of privacy. Commonwealth v. Trageser, 600 S.W.3d 749, 2020 Ky. App. LEXIS 52 (Ky. Ct. App. 2020).