Annotations for Statute

Subsections (h) and (i) of this section exempt Governor’s daily appointment ledgers as within the exception for preliminary materials from media inspection and that, as such, summary judgment denying their availability to newspaper under the Open Records Act was appropriate. Courier-Journal v. Jones, 895 S.W.2d 6, 1995 Ky. App. LEXIS 58 (Ky. Ct. App. 1995).

Substantial evidence did not support a Circuit Court’s finding that, under the Family Educational Rights and Privacy Act (FERPA), 20 USCS § 1232g, and the Kentucky Family Educational Rights and Privacy Act (FERPA), KRS 160.700 et seq., a teacher had no legitimate educational interest in viewing videotape recordings of her own classroom. The case was remanded for a hearing to determine whether her request under the Kentucky Open Records Act, KRS 61.870 et seq., was made pursuant to a legitimate educational interest as defined by FERPA and KFERPA. Medley v. Bd. of Educ., 168 S.W.3d 398, 2004 Ky. App. LEXIS 305 (Ky. Ct. App. 2004).

The Governor’s administration was properly ordered to release service description statements on attorney billing records reflecting the general nature of legal services rendered by nongovernmental lawyers retained in connection with an investigation of hiring practices. Such statements were not protected by the attorney-client privilege of KRE 503, and the trial court’s solution of allowing the administration to submit descriptions it believed to be privileged for in camera  review balanced the administration’s interest in the confidentiality of privileged materials and the public interest in disclosure. Commonwealth v. Scorsone, 2008 Ky. App. LEXIS 18 (Ky. Ct. App. Jan. 18, 2008), op. withdrawn, sub. op., 251 S.W.3d 328, 2008 Ky. App. LEXIS 40 (Ky. Ct. App. 2008).

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).

The Open Records Act neither intends nor provides that a convicted criminal should have complete access to the prosecutorial file once his conviction has been affirmed on direct appeal. Skaggs v. Redford, 844 S.W.2d 389, 1992 Ky. LEXIS 164 (Ky. 1992), overruled in part, City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 (Ky. 2013).

The attempt by the Board of Medical Licensure to categorize complaints against physicians as formal public complaints and private individual complaints has no bearing on whether such complaints must be released under the Open Records Act. Inasmuch as final actions stem from the complaints, they must be incorporated as part of the final determination and are therefore not exempt under subdivisions (1)(g) or (1)(h) of this section. Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 1983 Ky. App. LEXIS 327 (Ky. Ct. App. 1983).

The confidential audited financial reports of privately owned, corporate marina operators were exempt from disclosure under KRS 61.878(1)(c)1. The Legislative Program Review and Investigation Committee could not obtain nor disclose such records under the Open Records Act, but could obtain access to them for its use in evaluation pursuant to KRS 6.910 without disclosure to the public. Marina Management Servs. v. Cabinet for Tourism, Dep't of Parks, 906 S.W.2d 318, 1995 Ky. LEXIS 62 (Ky. 1995).

The defense of a prospective habeas corpus proceedings was part of the “law enforcement action” in the defendant’s case; therefore, the records in the Commonwealth’s Attorney’s prosecution file fall within the provisions of subdivision (1)(g) of this section, as public records exempted until after enforcement action is completed. Skaggs v. Redford, 844 S.W.2d 389, 1992 Ky. LEXIS 164 (Ky. 1992), overruled in part, City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 2013 Ky. LEXIS 375 (Ky. 2013).

The financial information required to be submitted by corporation in its application to Kentucky Industrial Revitalization Authority (KIRA) that detailed the company’s business and revitalization project and included such information as a financial history of the corporation, a projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company’s productivity, efficiency and financial stability concerning the inner workings of the corporation is “generally recognized as confidential or proprietary” and falls within the wording of KRS 61.878(1)(c)2.b. Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 1995 Ky. LEXIS 125 (Ky. 1995).

The investigative files of the internal affairs unit of a city police department were exempt from public inspection as preliminary under subsections (1)(g) and (h) of this section; this exemption did not extend to the complaints against a police officer which initially spawned the investigations. The public upon request had a right to know what complaints had been made and the final action taken by the chief thereupon. Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658, 1982 Ky. App. LEXIS 232 (Ky. Ct. App. 1982).

The statute does not exempt or exclude all records from the open records disclosure in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in subsection (1) to those records which parties can obtain through a court order; the gist of this wording is not to terminate a person’s right to use an open records request during litigation, but to limit a court on an open records request on excluded records to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pretrial discovery. Ky. Lottery Corp. v. Stewart, 41 S.W.3d 860, 2001 Ky. App. LEXIS 18 (Ky. Ct. App. 2001).

The trial court did not err by finding that individual property owners’ privacy interests outweighed the negligible public interest in releasing individualized valuation information regarding unclaimed property and that disclosure of such information as requested by the appellant would constitute a clearly unwarranted invasion of personal privacy. Hines v. Commonwealth, 41 S.W.3d 872, 2001 Ky. App. LEXIS 39 (Ky. Ct. App. 2001).

There is no unqualified right for one governmental entity to examine the total personnel files of another governmental entity; accordingly, where the Human Rights Commission sought all personnel records of complainant and three (3) other school security officers in an employment promotion sex discrimination case, the Board of Education need only disclose such information as remains after it “sanitizes” the records, pursuant to subsection (3) of this section, to remove material not germane to the action. 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).

This section provides the proper standard for determining whether records may be excluded from disclosure in administrative hearings, such as those provided for under the Health Care Acts of 1994: “if a document is confidential or proprietary, and that disclosure to competitors would give them substantially more than a trivial unfair advantage, the document should be protected from disclosure to those who are not parties to the proceeding.” Southeastern United Medigroup v. Hughes, 952 S.W.2d 195, 1997 Ky. LEXIS 90 (Ky. 1997), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 (Ky. 2004).

Those documents defined in subdivisions (1)(g) and (1)(h) of this section which become a part of the records adopted by the Board of Medical Licensure as the basis of its final action, become releasable as public records under subdivision (1)(f), unless exempted by other provisions of KRS 61.870 through 61.884. Kentucky State Bd. of Medical Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 1983 Ky. App. LEXIS 327 (Ky. Ct. App. 1983).

To conform with the “fair opportunity” afforded a defendant by subsection (4) of KRS 532.050, a defendant is entitled to being advised by the prison official who has custody of the presentence investigation report of the factual contents and conclusions therein and to a reasonable time to controvert factual information contained therein, but in order to protect the sources of confidential information, matters of opinion and comments of a personal and nonfactual nature shall not be revealed, and a defendant is not entitled to a copy of the report. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 (Ky. 1987).

To infer that subdivision (1)(a) of this section may be invoked only where the subject information is already protected under a different paragraph would require a reading of the statute which is, to say the least, esoteric — and which, incidentally, would render subdivision (1)(a) a nullity. A plain reading of subdivision (1)(a) reveals an unequivocal legislative intention that certain records, albeit they are “public,” are not subject to inspection, because disclosure would constitute a clearly unwarranted invasion of personal privacy. Judging by order, if nothing more, one might say that subdivision (1)(a) is the foremost exception to the disclosure rule. Certainly it is an independently viable exception, not subordinate to any other, and not restricted to preliminary materials or non-final matters. Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 1992 Ky. LEXIS 35 (Ky. 1992).

Trial court properly granted summary judgment in favor of a doctor as to a patient’s medical negligence claim because she could not compel involuntary testimony from an expert working for the Board of Medical Licensure even if it amounted to his preliminary recommendations, and preliminary memoranda in which his opinions were expressed for use by the Board. Pringle v. South, 2020 Ky. App. LEXIS 56 (Ky. Ct. App. May 8, 2020).

University had yet to fulfill its statutory responsibilities under the Kentucky Open Records Act because it had not separated the exempt from the nonexempt records, redacted any personally identifying information or provided sufficient proof that the records were exempt under the Open Records Act through a proper index. 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).

University violated the Open Records Act because the university did not (1) show a specific exemption applied to a particular record, (2) redact personally identifying information, or (3) show records were exempt through a proper index, and (4) refused to let the Attorney General review redacted records.  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).