24-ORD-237
November 12, 2024
In re: Alex Rib/Louisville Metro Government
Summary: The Louisville Metro Government (“Metro”) violated the
Open Records Act (“the Act”) when it required the Appellant to complete
a commercial purpose form even though the Appellant had stated each
of his requests did not have a commercial purpose.
Open Records Decision
Alex Rib (“Appellant”) appeals Metro’s response to 17 requests submitted in
early October. In accordance with KRS 61.876(4)(c), the Appellant stated each
request was not for a commercial purpose. Metro, because the Appellant had
requested records typically sought for commercial purposes, required the Appellant
to complete a form stating whether the request was for a commercial purpose before
it would fulfill the Appellant’s requests. This appeal followed.
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 to
cover 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 ask “[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).
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 affirmatively states the records will not be used for a commercial purpose.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 allows to an agency that disagrees
with the requester’s assessment that his use of public records is noncommercial.
Here, the Appellant affirmatively stated that each of his requests do not have
a commercial purpose. On appeal, Metro explains that it believed it was required to
seek a certified statement from the Appellant before proceeding under KRS 61.8745,
but it now understands this position was incorrect.1 Accordingly, Metro violated the
Act when it required the Appellant to complete a commercial purpose form after the
Appellant had already stated his requests were not for commercial purposes.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
1
Metro has since abandoned this practice and will not require completion of a commercial purpose
form when the Appellant states his request is not for a commercial purpose.#409
Distributed to:
Alex Rib
Alice Lyon
Annale Taylor
Natalie S. Johnson
Nicole Pang