24-ORD-049
February 28, 2024
In re: Zachary Kirk/Covington Police Department
Summary: The Covington Police Department (“the Department”)
violated the Open Records Act (“the Act”) when it denied a request for
public records because it believed the requester would use records for a
commercial purpose notwithstanding his statement to the contrary. If a
requester misleads an agency about his or her intent to use records for
a commercial purpose, then the agency’s remedy is to seek damages in
circuit court under KRS 61.8745, not to deny the request before the
requester actually uses the records for a commercial purpose.
Open Records Decision
On January 31, 2024, Zachary Kirk (“Appellant”) submitted a request to the
Department for the “written report, Narrative, Body camera and Dash camera
footage associated with the arrest of” a named individual on February 14, 2023. In
accordance with KRS 61.876(4)(c), the Appellant stated his request was not for a
commercial purpose. In a timely response, the Department initially denied the
request because it did not certify a commercial purpose under KRS 61.874(4)(b). In a
supplemental response, which was also timely, the Department explained it had
deemed the Appellant’s purpose to be commercial under KRS 61.870(4) because he
intended to post the requested video on a monetized YouTube channel.1 This appeal
followed.
According to records filed with the Kentucky Secretary of State, the Appellant
is the organizer and registered agent of KY Blue Cam LLC, a Kentucky for-profit
1
YouTube, a popular video hosting website, offers a monetization program that enables its users
“to earn money directly on [its] platform in a variety of different ways, including through placed
advertising,
merchandise
sales,
and
subscriptions.”
See
https://www.youtube.com/howyoutubeworks/product-features/monetization/ (last accessed Feb. 28,
2024).company with its principal office in Owingsville, Kentucky.2 KY Blue Cam is also the
name of the Appellant’s YouTube channel, which posts video footage from police
cameras for public viewing. The Appellant included the name of his company when
he submitted his request, and on appeal, he admits his company receives revenue
from channel subscriptions and advertising on YouTube.
Under KRS 61.874(4), if public records are requested for a commercial purpose,
the public agency may impose certain requirements, including a reasonable fee
including staff costs, a certified statement of the purpose for which the records will
be used, and the establishment of a contract. Accordingly, KRS 61.876(4)(c) permits
the agency to inquire “[w]hether the request is for a commercial purpose.” The Act
defines “commercial purpose” as “the direct or indirect use of any part of a public
record or records, in any form, for sale, resale, solicitation, rent, or lease of a service,
or any use by which the user expects a profit either through commission, salary, or
fee.” KRS 61.870(4)(a) (emphasis added).
Here, because the Appellant’s company derives revenue from posting public
records on YouTube, the Department argues his request is for a commercial purpose.
The
Appellant,
however,
claims
his
purpose
is
noncommercial
under
KRS 61.870(4)(b)2., which excludes from the definition of “commercial purpose” the
“[u]se of a public record by a radio or television station in its news or other
informational programs.”3 He argues KY Blue Cam is merely “broadcasting” on
YouTube and obtaining revenue in the same manner as a radio or television station.
Under KRS 446.080(4), “[a]ll words and phrases” used in Kentucky statutes “shall be
construed according to the common and approved usage of language,” with the
exception of “technical words and phrases, and such others as may have acquired a
peculiar and appropriate meaning in the law.” The common meaning of “radio or
television station” does not include a YouTube channel. See, e.g., 14-ORD-125
2
See https://web.sos.ky.gov/BusSearchNProfile/Profile.aspx/?ctr=1342157 (last accessed Feb. 28,
2024).
3
The Appellant also claims his company is a “news-gathering organization” under
KRS 189.635(8)(b). That provision, however, relates to obtaining vehicle accident reports from the
Kentucky State Police, which the Appellant did not request. Qualifying as one of the news-gathering
organizations described in KRS 189.635(8)(b)1.a. to e. is also a way for nonresidents of the
Commonwealth to claim they are residents so they may exercise the statutory right of inspection. See
KRS 61.870(10)(g); KRS 61.872(2)(a) (“Any resident of the Commonwealth shall have the right to
inspect public records”). However, the Appellant already qualifies as a resident of the Commonwealth
because he resides in the Commonwealth and owns a business in the Commonwealth that is registered
with the Kentucky Secretary of State. Unlike the definition of “resident of the Commonwealth” under
KRS 61.870(10)(g), KRS 61.870(4)(b)2. does not incorporate by reference the definition of a “news-
gathering organization” under KRS 189.635(8)(b), and thus, that provision is irrelevant to the Act’s
definition of “commercial purpose.”(concluding that a website describing itself as a “news organization” is not a “radio or
television station” under KRS 61.870(4)(b)).4
However, it is not necessary in this appeal to determine whether the
Appellant’s intended use for the records is commercial because the question
presented is whether the Department properly denied the Appellant’s request.
KRS 61.876(4)(c) allows a public agency to ask the requester whether the requested
records will be used for a commercial purpose, and a public agency can deny the
request if the requester refuses or fails to answer the question. See, e.g., 24-ORD-021.
However, nothing in the Act allows an agency to deny a request, after the requester
states the records will not be used for a commercial purpose, simply because the
agency disagrees with the requester’s answer to the question. Rather, under
KRS 61.874(5)(c), it is “unlawful for a person to obtain a copy of any part of a public
record for a [n]oncommercial purpose, if the person uses or knowingly allows the use
of the public record for a commercial purpose.” As a remedy for a violation of that
provision, the public agency may bring a civil action to obtain treble damages, costs,
and attorney’s fees under KRS 61.8745, along with any other penalty established by
law. This is the only remedy the Act provides an agency that disagrees with the
requester’s assessment that his use of public records is noncommercial.
Here, the Appellant stated his request was not for a commercial purpose. The
Department disagrees, and claims it merely sought “to avoid unnecessary litigation”
by denying the request and inviting the Appellant to submit “a new request certifying
that it is for a commercial purpose.” While the Department’s motive is
understandable, and it may be correct in its legal conclusion that posting public
records on YouTube for profit amounts to a commercial purpose, “nothing in the Act
authorizes a public agency to simply designate a request as one for a commercial
purpose and demand a certified statement” to that effect. 20-ORD-099.5 Accordingly,
the Department violated the Act when it denied the Appellant’s request.
4
Indeed, YouTube did not exist in 1994, when the Act was amended to include the definition of
“commercial purpose” and excluded from the definition “a radio or television station.” See 1994 Ky.
Acts ch. 262 § 2. Further, the Federal Communications Commission (“FCC”) regulates radio and
television stations in the United States. See generally Federal Commc’n Comm’n v. Prometheus Radio
Project, 592 U.S. 414, 418–21 (2021) (explaining the history of the Telecommunications Act of 1996
and the FCC’s regulatory history with respect to ownership of radio and television stations). As of the
date of this decision, the FCC does not regulate YouTube or other video-streaming services, despite a
recent request from 20 United States Senators for the FCC to begin doing so. See Letter from Senator
B. Lujan, et al. to Chairwoman Rosenworcel, Chairwoman of the FCC (Oct. 18, 2023) available at
https://www.lujan.senate.gov/wp-content/uploads/2023/10/20231018-FCC-Le…-
Marketplace.pdf (last accessed Feb. 28, 2024). Thus, because YouTube is not currently regulated by
the FCC in the same manner as radio and television stations, it is doubtful YouTube could be
considered “a radio or television station” under KRS 61.870(4)(b)2.
5
See 20-ORD-116 (finding an agency was “not authorized to treat [a] request as one for commercial
purposes after [the requester] affirmed in writing that it was not”).A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#49
Distribution:
Mr. Zachary Kirk
Starr M. Ford IV, Esq.
Sheree E. Weichold, Esq.
David Davidson, Esq.
Col. Brian Valenti