THE ABCs OF KENTUCKY OPEN RECORDS AND OPEN MEETING ACTS:

A PRIMER

CLE Credit: 1.0 Thursday, June 14, 2018

3:45 p.m. - 4:45 p.m. Elkhorn A-D

Lexington Convention Center Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenters ................................................................................................................. i The ABCs of the Kentucky Open Records and Open Meeting Acts: A Primer .......................................................................................................................... 1

The Applicable Procedures .................................................................................. 1 Issues with Open Records Requests for Electronic Records ............................... 6 Summary of Select Kentucky Appellate Cases .................................................. 11

THE PRESENTERS

Dana D. Fohl Eastern Kentucky University

665 Poplar Springs Lane Lexington, Kentucky 40515-6082

DANA D. FOHL serves as university counsel for Eastern Kentucky University. Prior to becoming university counsel, she served as deputy counsel and associate counsel for EKU and as an associate with Bowles Rice, LLP. Ms. Fohl received her B.A. from Eastern Kentucky University and her J.D. from the University of Kentucky College of Law. She is a member of the Eastern Kentucky University International Alumni Association. Lisa K. Lang Kentucky State University Hume Hall, Suite 102 400 East Main Street Frankfort, Kentucky 40601 LISA K. LANG serves as general counsel for Kentucky State University. Prior to joining the university, she served as general counsel for the Kentucky Education Professional Standards Board and as assistant general counsel for the Kentucky Department of Education. Ms. Lang received her J.D. from the Louis D. Brandeis School of Law at the University of Louisville. She serves on the Foster Care Review Board. Ms. Lang is a veteran of the United States Army.

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Jeremy S. Rogers Dinsmore & Shohl, LLP

101 South Fifth Street, Suite 2500 Louisville, Kentucky 40202-3115

JEREMY S. ROGERS is a partner in the Louisville office of Dinsmore & Shohl, LLP and practices in the areas of white collar crime, employment, education industry, First Amendment and media, antitrust and trade regulation and government investigations. He received his B.A., magna cum laude, from the University of Kentucky and his J.D., cum laude, from Boston College Law School. Mr. Rogers is a member of the Louisville, Kentucky and Indiana Bar Associations and the Louis D. Brandeis American Inns of Court. He serves on the Kentucky State Archives and Records Commission and on the board of Actors Theatre Generation One. Kif H. Skidmore Stoll Keenon Ogden 300 West Vine Street, Suite 2100 Lexington, Kentucky 40507 KIF H. SKIDMORE is counsel to the firm in the Lexington office of Stoll Keenon Ogden, PLLC and concentrates her practice in the areas of business litigation, labor employment and employee benefits, tort, trial and insurance services. She received her B.A. from Berea College and her J.D. from the University of Kentucky College of Law, where she was a member of the Kentucky Law Journal and Moot Court. Ms. Skidmore serves as president of the Fayette County Bar Association and is a member of the Kentucky Bar Association. She also is vice president of the Lesotho Youth Foundation, a scholarship program providing secondary education and HIV prevention for disadvantaged youth in southern Africa.

Gordon R. Slone Kentucky Office of the Attorney General

Capitol Building, Suite 118 Frankfort, Kentucky 40601

GORDON R. SLONE serves as assistant attorney general in Frankfort and practices in the areas of administrative law and open records decisions. He received his B.S. from the University of Kentucky and his J.D. from the University of Kentucky College of Law. Mr. Slone is a member of the Kentucky Bar Association.

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THE ABCS OF THE KENTUCKY OPEN RECORDS AND OPEN MEETING ACTS: A PRIMER

I. THE APPLICABLE PROCEDURES

A. The Open Records Act, KRS 61.870 to 61.884

To inspect a public record, you will typically be required to make a written request to the official custodian of the records of the agency. The custodian is the agency employee responsible for maintaining the agency records. Describe the records you want to inspect, sign the request, and print your name on it. You may hand-deliver, mail, or fax your request to the agency. You must request records, not information. An agency is not required to honor a request for information. An agency must honor a request for an existing public record that contains the information you seek unless the requested records are exempt.

Example: Wrong: Please provide me with a list of the salaries of the city's

employees. Right: Please provide me with copies of the city's current payroll

records.

The public agency must respond to the request, in writing, within three days, not including Saturdays, Sundays, and legal holidays. The agency's three "business" days response time begins to run the day after it receives the request. If you request copies of records by mail, the agency will typically notify you, on or before that third day that the records are ready and will be provided after payment of the cost of copying and mailing. If the agency denies all or any part of the request, it must identify which Open Records Act exemption it is relying on. The exemptions are at KRS 61.878(1). The agency must also explain how the exemption applies to the record. For example, the agency may redact personal telephone numbers and cite KRS 61.878(1)(a) to explain that the records are exempted because they are "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." If the record that you want to inspect is in use, in storage, or temporarily unavailable, the agency should notify you in writing and designate a place, time, and date for inspection no more than three days from the date it received the request. If the delay is greater than three days, the

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agency must give a detailed explanation of the cause for the additional delay in writing and provide the earliest date the records will be available. You may inspect public records during the regular office hours of a public agency or by receiving copies of the records through the mail. You must be permitted to conduct onsite inspection of the records if you wish to do so even if the agency prefers to mail you copies. You must be permitted to conduct onsite inspection of the records during the agency's regular office hours, and the agency cannot restrict the hours of access. The agency may require you to conduct an onsite inspection before receiving copies if you live or have your principal place of business in the county where the records are located and/or if you fail to precisely describe the records. If you live or work outside the county in which the records are located and you precisely describe the records, the public agency must mail copies to you. A requester "precisely describes" requested records if he or she describes in definite, specific, and unequivocal terms the records he or she wishes to access by mail. 97-ORD-46, p.3. An open records request should not require "the specificity and cunning of a carefully drawn set of discovery requests…." Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). The agency may require advance payment of the copying fee and postage. In providing copies the agency is not required to convert records from paper to electronic format, but if the agency maintains the records in electronic format, you have the option to choose to receive the records in paper or electronic format. The agency may provide a preprinted open records form, but you are not required to use it. The request must be accepted if it is in writing, describes the records you wish to inspect or obtain copies of, and contains your signature and your name printed legibly on it. While a preprinted form may not be required, submission of a request on such a form provided by the agency may assist the agency in recognizing it as an open records request and in efficiently responding to the request. Agencies are not required to honor email requests. The act provides for submitting a request by mail, fax, or hand-delivery. An agency may have a practice of allowing requests by email, and some, Louisville Metro Government for example, may have a website where you can submit your request electronically. If you request copies of public records, the agency's copying charges must be limited to the actual cost of reproduction, including material and mechanical reproduction cost but not include the cost of personnel required to copy the records. If the purpose in requesting records is noncommercial, the agency may only charge 10 cents per page for copies of standard size paper records unless the agency's statutes allow higher charges. You cannot be charged for inspecting records on site.

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Commercial Purpose Public agencies may require you to state in writing whether the request is submitted for a commercial or noncommercial purpose. Commercial purpose is defined as "any use by which the user expects a profit either through commission, salary, or fee," but excludes print or electronic media and attorneys representing parties in litigation. Requesters, who intend to use the records for a commercial purpose as that term is defined in the statute, may be required to pay a higher charge to include copying and staff costs. Appealing a response to an open records request: If the request is denied, in whole or in part, you may file an appeal with the attorney general for review of the agency's actions. The appeal must consist of a copy of the written request, a copy of the agency's written denial, if available, and, if you wish, a letter of appeal describing the circumstances of the appeal. If the agency did not respond to the request, you should state that clearly in the appeal to the attorney general. You may bypass the attorney general's office and file an appeal in circuit court. If you choose to go directly to circuit court, you will incur the costs of bringing a lawsuit, including filing fees and your attorney's fee. Inmates confined in a jail or correctional facility appealing a denial issued by the Department of Corrections must first appeal to the office of the attorney general. The attorney general will review the appeal and issue a decision within 20 business days or, in unusual circumstances, 50 business days. The decision will state whether the agency violated the Open Records Act by denying the request. You will receive a copy of the decision, as will the agency. You or the public agency may appeal the attorney general's decision to the circuit court of the county where the agency has its principal place of business or where the record is maintained. The attorney general must be notified of any circuit court action but shall not be named as a party in the action. If an appeal is not filed with the circuit court within 30 days, the attorney general's decision has the force and effect of law and can be enforced in circuit court. However, the attorney general does not have authority to force an agency to release records or otherwise enforce the decision after it is issued. If you prevail against an agency in circuit court, you may be awarded costs, including reasonable attorney fees, if the court finds that the records were willfully withheld. The court may also award up to $25 for each day that you were denied the right to inspect the records.

B. The Open Meetings Act, KRS 61.800 to 61.850

The Open Meetings Act requires that all public meetings be held at times and places that are convenient to the public in meeting rooms that

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provide adequate space, seating, and acoustics and the agency adopt a schedule of its regular meetings and make the schedule available to the public. The agency must record minutes of actions taken at its meetings, and these minutes must be open for public inspection no later than its next meeting. The meeting room must allow effective public observation of the meeting, and the only conditions for attendance are those required for the maintenance of order. The Open Meetings Act does not govern the conduct of meetings and citizen participation. The act does not confer a right to participation by attendees. Each agency must adopt rules of procedure. Unless it is a "special meeting," the act does not require an agency to have an agenda.

Special Meetings A "special meeting" is one that is not on the agency's regular schedule of meetings. For example, a meeting that was scheduled for the second Monday of each month, according to the regular schedule of meetings, may be postponed to a later date. The meeting on that later date is a special meeting. A special meeting may be called by the presiding officer or a majority of the members of the public agency. The agency must give written notice consisting of the date, time, and place of the meeting and provide the agenda. Discussions and actions at the meeting must be limited to the items listed on the agenda. Written notice must be delivered to the members of the agency and every media organization that has requested advance notice by U.S. mail, fax, hand-delivery or, if certain conditions are met, email at least 24 hours before the meeting. Notice must also be posted in a conspicuous place in the building where the meeting will take place and the building that houses the agency's headquarters. If an emergency prevents the agency from following these procedures, it must make a reasonable effort to notify the members of the agency, the media, and the public, and discussions at the emergency meeting must be limited to the emergency for which the meeting was called. Closed Sessions The Open Meetings Act permits a public agency to discuss certain subjects in a closed, or executive, meeting if notice is given in the regular meeting of the general nature of the business to be discussed and the agency cites the specific exemption authorizing the closed session. Members of the general public are excluded from the closed session of the meeting. A closed session may be held only after a motion is made and carried in open session and no final action may be taken in closed session. A video teleconference cannot be used for a closed session. Agencies are not required to take minutes in closed sessions. The exceptions for allowing a closed session are at KRS 61.810(1) and include, for example: • Discussions of proposed or pending litigation against or on behalf

of the public agency;

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• Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret;

• Meetings which federal or state law specifically require to be

conducted in privacy.

Video Teleconference An agency's meetings may be conducted by video teleconference which is defined as a meeting occurring in two or more locations where individuals can see and hear each other by means of video and audio equipment but cannot be conducted by telephone. For a video teleconference, the public must be able to see and hear the participants at the other location. The remote location(s) must meet the same requirements for public access and prior notice as the primary location. The remote location must have any documents that are provided to the participants at the primary location. Violations of the Open Meetings Act If you believe that a public agency has violated the Open Meetings Act, you may challenge the agency's actions by first submitting a written complaint to the presiding officer of the agency. You must state the circumstances of the violation and what the agency should do to correct it. You cannot omit this step in the process. Within three business days of receipt of the complaint, the public agency must decide whether to correct the violation and notify you in writing of its decision. If the agency denies the violation and rejects the proposed remedy, it must issue a written response which cites the statute authorizing its actions and briefly explain how the statute applies. You may file an appeal with the attorney general for review of the agency's action within 60 days of receipt of the agency's response. You must include a copy of your written complaint and a copy of the agency's response, if available. If the agency did not provide a written response, you should explicitly state that in your appeal. The attorney general will review the appeal and issue a decision stating whether the agency violated the Open Meetings Act within 10 business days. Both you and the agency will receive a copy of the decision. You or the public agency may appeal the attorney general's decision to the circuit court of the county where the public agency has its principal place of business or where the violation occurred. If an appeal is not filed within 30 days, the attorney general's decision has the force and effect of law, and can be enforced in circuit court. You may also appeal directly to the circuit court without first appealing to the attorney general's office.

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If you prevail against an agency in circuit court, you may be awarded costs including attorney fees if the court finds that the violation was willful. The court may also award up to $100 for each violation.

II. ISSUES WITH OPEN RECORDS REQUESTS FOR ELECTRONIC RECORDS

A. Standard vs. Non-Standard Data Requests

1. Standard data request.

a. A standard data request is a request for data from a database where the agency can easily extract the information sought to satisfy the request.

b. The records custodian does not have the discretion as to

whether to fulfill the request. The use of these standard reports or queries as "standard requests" when applied to databases is a common interpretation of the term as used in the statute. See KRS 61.874(3).

c. In responding to a standard request, the records custodian

can charge a reasonable fee that does not exceed the actual cost of reproduction. Reproduction includes media and mechanical processing costs, but cannot include staff time or programming costs. See KRS 61.874(3).

2. Non-standard data request.

a. A non-standard data request is a request for data from a

database where the agency cannot retrieve the data through a preexisting query, filter, or sort.

b. The records custodian has the discretion whether or not to

fulfill the request. See KRS 61.874(3).

c. If the records custodian chooses to respond to a non-standard request, it is permissible for the records custodian to charge fees to recover staff time and programming costs the first time requested. The records custodian must treat subsequent requests for the same data that is extracted using the same programming as standard requests, since the query, filter, or sort now exists and no additional programming is necessary to fulfill the request.

3. Distinguishing between standard and non-standard requests.

A records custodian cannot ask questions regarding how the requester will use the data unless it is to determine whether the requester is making the request for a commercial purpose as defined in the Open Records Act, KRS 61.870(4) and KRS 61.874(4).

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Records custodians may, however, request additional information to clarify what records are being sought and how best to fill the request. The records custodian cannot condition the requestor's right of access on the requestor's willingness to provide additional information, but may only solicit the information in furtherance of his/her duty in fulfilling the request. Questions may include: a. What data or records is the requester seeking? b. What is the method of sorting the requested data or

records? c. What is the appropriate file format? d. What is the desired method of transfer/delivery of the data

requested? e. Is there appropriate supporting documentation (data

dictionaries, relationships within the data, field definitions, etc.) necessary to make the requested records meaningful?

https://kdla.ky.gov/records/recmgmtguidance/Documents/DatabaseasPublicRecord.pdf

B. Requests for State Agency Email

1. Production in electronic form: KRS 61.874(2)(a): Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.

2. Breadth of request.

a. Time extension: 12-ORD-097: Request was for all emails from a certain date to the present in a certain employee's email account. Agency sent a notice to requestor to request either a more narrowly tailored request or a six-month extension, as the email account in question contained in excess of 22,000 emails, which must be individually reviewed.

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i. Footnote in opinion.

Such broadly worded requests for 'all email' sent or received by a particular person or persons, or related to a particular subject, or within a stated timeframe, have become increasingly common. Although such requests are not 'improper,' they could not have been envisioned by the General Assembly in adopting a three working day statutory deadline for records production when the Open Records Law was enacted in 1976, and applicants submitting requests cannot reasonably expect agencies to which these requests are directed to produce all responsive records within the three day deadline. Applicants are therefore urged to frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production.

ii. Only if the parameters of a request are broad, the

records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve will a determination of what is a "reasonable time for inspection turn on the particular facts presented." OAG 92-117

b. Unreasonably burdensome: KRS 61.872(6) – If the

application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

i. 16-ORD-262: Request for written communications

between school board members and another individual for a specific date range. AG found that record of 33 prior requests, inconvenience and time devoted to responses, and submissions of settlement demand to make the requests "go away" did not support the unreasonable burden defense.

ii. 17-ORD-104: Request was for any mention of prior

employee's name or position in an email. Search of university's server indicated approximately 225 million items from individual emails that would have to be individually reviewed for redactions, including FERPA, which would have required years of staff time. Request properly denied as unreasonably burdensome.

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iii. Com. v. Chestnut, 250 S.W.3d 655 (Ky. 2008).

A public agency refusing to comply with an open records request on this unreasonable-burden basis faces a high proof threshold since the agency must show the existence of the unreasonable burden by 'clear and convincing evidence.' (a) Time and manpower, standing alone, is not

enough. (b) A record's length, standing alone, is not

enough. (c) The failure of the agency's recordkeeping

system is not burdensome enough: agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request."

3. Email privacy.

a. Private email addresses: 16-ORD-205: A list of private email addresses for university trustees was properly redacted in copies of responsive emails under the personal privacy exception.

b. Personal privacy: Our analysis begins with a

determination of whether the subject information is of a 'personal nature.' If we find that it is, we 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. As the Supreme Court noted, the circumstances of a given case will affect the balance. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825 (Ky. App. 1994) citing Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992).

c. Preliminary: 16-ORD-029: AG's appointment calendar

and emails related to arranging meetings were properly withheld as preliminary. Exception applies where communications setting up meeting are not adopted and the meeting does not resolve the "ultimate issue."

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University of Louisville v. Sharp (2013) relating to emails exchanged by public employees concerning scheduling of, and agenda for, meetings and holding that "piecemeal disclosure along the path of the decision-making process is not mandatory."

d. Personal nature: HB 302 amends KRS 61.878 to state:

"The following public records are excluded from the application" of the Open Records Act... "(p) Communications of a purely personal nature unrelated to any governmental function."

C. Relevant Attorney General Opinions and Open Record Decisions on

Electronic Records

1. OAG 76-375 – It is not necessary for an agency to make a list of items from its records if such a list does not already exist. When an agency has compiled statistics, the agency must make that compilation available for public inspection and copying; but if the agency has no such compilation, a requester cannot require the agency to make one.

2. OAG 79-77 – A list which is compiled in a computer and does not

contain information made confidential by law must be made available for inspection and a copy must be provided for a reasonable fee.

3. OAG 81-333 – The Open Records Act does not require an agency

to create a query to extract statistical data upon receipt of an open records request. "It is for the agency to decide if and when to create a body of statistical data."

4. 17-ORD-089 – Past open records decisions issued by the attorney

general have recognized that public agencies are required to honor "a request for information contained in a database ... [if] there is a pre-existing query, filter, or sort capable of extracting the specific information," and, if no query, filter, or sort exists, to "make available the entire database." 09-ORD-197; 03-ORD-214 (requiring release of Kentucky Tobacco Settlement Trust Corporation Phase II payments database), see also, 04-ORD-117.

However, the attorney general has also recognized that an agency is not required to allow a requester unrestricted access to the database for the purpose of extracting desired information when such access would include highly personal information and, so, constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).

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III. SUMMARY OF SELECT KENTUCKY APPELLATE CASES A. Open Records Act

1. What constitutes a "public agency?"

a. Utility Management Group, LLC v. Pike County Fiscal Court, 531 S.W.3d 3 (Ky. 2017).

Utility Management Group, LLC ("UMG"), a private company, refused the Pike County Fiscal Court's request for records pertaining to its utility services contract. The Attorney General opined that UMG qualified as a "public agency" under the 1994 version of KRS 61.870(1)(h), which defined a "public agency" to include "any body which derives at least … 25% of it funds expended by it in … Kentucky from state or local authority funds." UMG appealed to the Pike Circuit Court. While the case was pending, the general assembly in 2012 amended KRS 68.170(1)(h) to exclude from the determination of whether a body is a public agency "any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process…." The Pike Circuit Court found that the 2012 amendment applied retroactively and, alternatively, that the 1994 version of the KRS 61.870(1)(h) was unconstitutionally vague. The Court of Appeals and Supreme Court both disagreed with the lower court. Specifically, UMG qualified as a public agency under the 1994 version of KRS 61.870(1)(h); the 2012 amendment to KRS 61.870(1)(h) does not apply retroactively; and the 1994 version of KRS 61.870(1)(h) was constitutional. The Supreme Court affirmed the Court of Appeal's conclusion that UMG must respond to the Pike Fiscal Court's March 2011 request for records and remanded the matter to the Pike Circuit Court for entry of such order. (Opinion by Minton, C.J.; Keller, VanMeter, and Venters, JJ., concurring; Dissent by Wright, J., joined by Cunningham, J.)

b. University Medical Center, Inc. v. American Civil Liberties

Union of Kentucky, Inc., 467 S.W.3d 790 (Ky. App. 2014).

The Court of Appeals held that the operator of the University of Louisville Hospital is a public agency subject to the Open Records Act where a minority of its board of directors was appointed directly by the University of Louisville, a public agency. Because the university also controlled the nominating committee responsible for appointing the remainder of the board of directors, the

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Court of Appeals held the university controlled all board of director appointments.

c. Frankfort Pub. Co., Inc. v. Kentucky State University

Foundation, Inc., 834 S.W.2d 681 (Ky. 1992).

The State Journal requested an audit report of the Kentucky State University Foundation's records related to travel and entertainment expenses, and the request was denied on the grounds that the foundation was not subject to the Open Records Act. The Supreme Court held that the foundation is a public agency under a prior definition which included any "agency" of a public entity.

d. Ex parte Farley, 570 S.W.2d 617 (Ky. 1978).

Although the Open Records Act, on its face, applies to the Court of Justice and its records, the Supreme Court held that "the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation." Id. at 624. Thus, the Open Records Act does not apply to judicial agencies.

2. Standing to oppose disclosure of records.

a. Beckham v. Board of Educ. of Jefferson Co., 873 S.W.2d 575 (Ky. 1994).

The Kentucky Supreme Court held that the Open Records Act provides a cause of action whereby an affected individual may seek to preclude disclosure of public records pertaining to him or her.

b. Lawson v. Office of Atty. Gen., 415 S.W.3d 59 (Ky. 2013).

Following a federal criminal proceeding involving the procurement of highway construction projects in 1983, Lawson's company paid restitution to the Kentucky Department of Transportation and made a "proffer" of information to the attorney general. In 2010, Lawson was acquitted on subsequent charges of conspiring to obtain confidential cost estimates for Kentucky highway construction projects. During the 2010 trial, federal prosecutors tried and failed to introduce Lawson's 1983 proffer. The Courier-Journal and Lexington Herald-Leader sought to obtain the proffer from the attorney general through open records requests. Lawson filed an action in the Franklin Circuit Court seeking to enjoin the disclosure of the proffer under the privacy exemption to the Open Records Act, KRS 61.878(1)(a), and under the "law

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enforcement" exemption, KRS 61.878(1)(h). The Supreme Court of Kentucky held that private citizens do not have standing to invoke the protection afforded to law enforcement records under KRS 61.878(1)(h). While the privacy exemption under KRS 61.878(1)(a) is intended to protect private citizens such as Lawson, disclosure of the proffer was not an "unwarranted" invasion because the public interest outweighed Lawson's personal privacy interest.

3. Personal privacy exemption.

a. Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Div. of Admin. v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324 (Ky. 1992).

The Kentucky Board of Examiners of Psychologists received complaints regarding sexual improprieties by a psychologist who surrendered his license following the scheduling of a formal hearing regarding the matter. When the Courier-Journal sought access to documents regarding the psychologist, the board provided certain documents (complaints, the psychologist's license application and results of his examination), but refused to permit inspection of the complaint file. After the attorney general upheld the board's decision, the Franklin Circuit Court and the Court of Appeals found in favor of the Courier-Journal. The Court of Appeals reasoned that because there was final action by the board regarding the psychologist's license, the Open Records Act compelled disclosure. On review, the Supreme Court reversed, finding that the already-disclosed portions of the record fulfilled the function of demonstrating that the board had "faithfully performed its purpose." Id. at 328. The Court found that the personal (i.e. sexual) nature of the information in the complaint file implicated privacy interests overriding the public interest in disclosure of such information. Id. at 328-329. (Stephens, C.J., Lambert, Leibson, Spain and Wintersheimer, JJ., concurring; Reynolds, J., dissenting).

b. Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76

(Ky. 2013).

The Kentucky New Era newspaper sought records including copies of arrest citations and incident reports involving stalking, harassment or terroristic threatening. The city withheld records involving names of juveniles, open cases, as well as social security numbers, driver's license numbers, telephone numbers, and addresses of victims, witnesses and suspects. The Supreme Court held

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that private citizens have "more than a de minimus" interest in the confidentiality of the personally identifiable information collected from them by the state. Id. at 85. The Court further held that the city's "categorical" (as opposed to "blanket") redaction policy did not violate the Open Records Act. Id. at 88.

c. Cape Publications, Inc. v. University of Louisville

Foundation, Inc., 260 S.W.3d 818 (Ky. 2008).

The Courier-Journal sought records of donations made to the University of Louisville Foundation, a fundraising arm of the university. The foundation rejected the request on the grounds that it is a private corporation not subject to the Open Records Act. The trial court held the foundation is a public agency because it was established, created, and controlled by the university, and the Court of Appeals affirmed. The Supreme Court denied discretionary review. The foundation also litigated the issue of whether the personal privacy exemption applies to individual donors, which claim of exemption the Court of Appeals upheld. On review, the Supreme Court of Kentucky held that the privacy interests in donors' identities and amounts of gifts to a public university was overridden by public interest in knowing who might have influence with the university.

d. Cape Publications v. City of Louisville, 147 S.W.3d 731

(Ky. App. 2003).

The city's practice of redacting sexual assault victims' names and addresses, as well as locations of offenses if occurring in victims' homes was found to be justified under the personal privacy exemption, KRS 61.878(1)(a). However, the court held that police "may not withhold the identities of all crime victims as a matter of policy." Id. at 732.

e. Lexington H-L Services, Inc. v. Lexington-Fayette Urban

County Government, 297 S.W.3d 579 (Ky. App. 2009).

The Lexington Herald-Leader sought disclosure of a closed police case file involving an alleged rape by a University of Kentucky basketball player. The LFUCG disclosed the file but redacted the names of the suspect and the victim. The Court of Appeals of Kentucky held that disclosure of the rape suspect's identity would constitute a clearly unwarranted invasion of personal privacy. The Court of Appeals cautioned, however, that the holding was "limited to this case and that judicial decisions concerning such open record requests are to be made on a 'case-by-case' basis." Id. at 585.

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f. Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000).

The Court of Appeals of Kentucky held that 911 callers have a right of privacy when seeking police assistance.

g. Zink v. Com., Dept. of Workers' Claims, Labor Cabinet,

902 S.W.2d 825 (Ky. App. 1994).

The Court of Appeals held that the Labor Cabinet properly withheld home addresses and phone numbers of injured workers from an attorney who requested records with the hope of soliciting clients.

4. Preliminary matters exemption.

a. Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001).

A police officer, who resigned prior to completion of a hearing about his termination, fought disclosure of the complaint file regarding his conduct arguing, in part, that the records were exempted from disclosure by the "preliminary matters" exemption under KRS 61.878(1)(i). The Court of Appeals held that the officer's resignation before the commission reached a decision constituted "final action." Id. at 597. The court also rejected the officer's argument that the records were exempt under the privacy exemption, holding the complaint presented a matter of "unique public interest" and that while "allegations of misconduct by Palmer are of a personal nature, we hold that the public disclosure of the complaint would not constitute a clearly unwarranted violation of Palmer's personal privacy." Id. at 599.

b. City of Louisville v. Courier-Journal and Louisville Times

Co., 637 S.W.2d 658 (Ky. App. 1982).

A Courier-Journal reporter requested all records and documents relating to complaints filed against a Louisville police officer. The Court of Appeals held that internal investigative files of the police department were "exempt from public inspection as preliminary," but the exemption would not extend to the complaints which initially spawned the investigations, once the investigation concluded.

c. Kentucky State Bd. Medical Licensure v. Courier-Journal &

Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983).

A Courier-Journal reporter requested documents relating to the medical licensure board's investigation of a physician. The Court of Appeals held that, once final action is taken, the initiating complaints must be subject to public scrutiny.

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The court also held that any other documents adopted by the board as part of its action also lose their exempt preliminary status.

5. Law enforcement exemption.

City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). Following conviction of a defendant for manslaughter of her husband, the Cincinnati Enquirer sought records related the investigation of the victim's death. The city claimed that the records were exempt under the law enforcement exemption. The Supreme Court held that the police department's investigatory file was not categorically exempt merely because it pertains to a prospective enforcement action. The city is required to show that premature release of records would harm the agency (i.e., the agency must articulate a factual basis for withholding the records by showing a "concrete" risk of harm). Id. at 851. The Court rejected the city's argument that Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992) provides for a blanket exemption of police investigatory files. The Court noted that during the pendency of that case, the general assembly amended KRS 61.878(1)(g) to provide a blanket exemption for prosecutorial files.

6. Confidential proprietary records/unfair commercial advantage.

Marina Management Services, Inc. v. Com. of Ky., Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995). Audited financial reports submitted by Marina Management Services (MMS) to the Cabinet for Tourism – including information on asset values, notes payable, related party transactions, profit margins, net earnings and capital income – held to be exempt from disclosure under KRS 61.878(1)(c) as disclosure would "unfairly advantage competing operators." Id. at 319.

7. Open records requests made in the context of litigation.

Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860 (Ky. App. 2001). The Kentucky Lottery Corporation denied attorneys' requests for records on the ground that the material sought was available in discovery in the pending unemployment benefits matter. The Court of Appeals held that "a public agency is not relieved of its duties under the Open Records Act simply because of actual or contemplated litigation." Id. at 861. In addition, the Court of Appeals upheld the trial court's award of attorney fees.

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8. Inadvertent disclosure/waiver.

Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006). Inadvertent or unauthorized release of certain material does not result in a waiver of exemptions under the Open Records Act.

9. Settlements between private citizens and public agencies.

a. Central Kentucky News-Journal v. George, 306 S.W.3d 41 (Ky. 2010).

The Central Kentucky News-Journal sought access to two "confidential" settlement agreements between a former employee of Campbellsville High School and the Board of Education and certain individual defendants. Following settlement, the trial court denied the newspaper's motion to intervene, and on remand from the Court of Appeals' writ of mandamus directing that the newspaper be allowed to intervene, the trial court still refused to unseal the settlements. The Supreme Court of Kentucky emphasized, "it is beyond question that the settlement agreements are public records for the purposes of the Open Records Act." Id. at 45. The Court rejected the notion that disclosure of the settlements would constitute an unwarranted invasion of personal privacy, as they did not contain any details of the underlying claims. Id. at 47.

b. Lexington-Fayette Urban County Government v. Lexington

Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997).

LFUCG refused to provide the Herald-Leader with unredacted copies of final settlement agreements or other documents identifying the recipients of settlements. The Supreme Court held that the privacy interests implicated were insufficient to overcome the public's right of access to records reflecting the settlements of a public agency. The Court qualified its ruling by noting, "we recognize in some cases there may be a legitimate concern for personal privacy that would be sufficient under the Act." Id. at 473. However, generally, "settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize." Id. at 473.

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10. Fees/penalties.

Cabinet for Health & Family Services v. Courier-Journal, Inc., 493 S.W.3d 375 (Ky. App. 2016). The Courier-Journal and Lexington Herald-Leader sought access to the records related to child fatalities and near-fatalities held by the Cabinet for Health and Family Services. The cabinet provided only its summary of recommendations from internal reviews purportedly conducted regarding incidents; however, it refused to provide the internal reports or the related files. KRS 620.050(12)(a) provides an exception to the general confidentiality afforded to child abuse and neglect records where there has been a fatality or near fatality. The cabinet relied on multiple Open Records Act exemptions for its blanket non-disclosure. After a lengthy and protracted litigation including an interlocutory appeal, the circuit court ordered production of 140 unredacted case files, awarded attorney fees to the newspapers and imposed statutory penalties in the amount of $756,000. The cabinet appealed the decision of the circuit court, but produced the records in dispute with only the redactions permitted by the circuit court. As an initial matter, the Court of Appeals held that the cabinet's production of the records in dispute mooted the appeals dealing with the circuit court's orders to produce the requested records. Id. at 383. The Court of Appeals upheld the award of the attorney fees and penalties, finding the cabinet's conduct to be "egregious" and indicative of a "culture of secrecy" whereby the cabinet viewed the Open Records Act as a suggestion. Id. at 388-389. (Maze; Stumbo, concur; Taylor, concur in part and dissent in part). Related cases include Com., Cabinet for Health and Family Services v. Lexington H-L Services, 382 S.W.3d 875 (Ky. App. 2012) (upholding fees awarded where Cabinet failed relied on blanket non-disclosure to refuse access to child fatality records); Cabinet for Health and Family Services v. Todd County Standard, Inc., 488 S.W.3d 1 (Ky. App. 2015) (upholding award of attorney fees and post-judgment interest against the cabinet after the Franklin Circuit Court found it had obfuscated the Open Records Act).

11. Immunity

Taylor v. Maxson, 483 S.W.3d 852 (Ky. App. 2016). After Taylor requested records and prevailed on appeal to the attorney general, she filed a tort action in Franklin Circuit Court seeking to hold the attorney for the Education and Workforce Development Cabinet liable in both his official and individual capacities for willful failure to respond to her requests. The court of appeals held: (1) that the circuit court properly dismissed her "official capacity" claim (while damages pursuant to KRS 61.882 would be recoverable in her separate cause of action relating to

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her open records request); and (2) any statements made by the attorney in the course of the Open Records Act proceeding were made as part of an adjudicatory process protected by absolute judicial immunity.

B. Open Meetings Act

1. Notice.

Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004). Citizens of Knox County sought to set aside an occupational tax ordinance based in part on the argument that the ordinance was enacted in violation of Kentucky's Open Meetings Act because it was conducted during a community festival (the Daniel Boone Festival). The Supreme Court held that the county did not violate the Open Meetings Act and noted that evidence of large attendance demonstrated that the time and place was not inconvenient. Id. at 844-845.

2. Action taken in closed session.

Webster County Bd. of Educ. v. Franklin, 392 S.W.3d 431 (Ky. App. 2013). A school board voted in closed session to authorize its attorney to pursue litigation. The board claimed that the litigation exception in KRS 61.810(1)(c), which allows for a public agency to have a closed session for "[d]iscussions of proposed or pending litigation against or on behalf of the public agency," permitted the board to authorize the action in closed session. The Court of Appeals held that the board violated the Open Meetings Act because, while discussion of litigation in closed session is permissible, the Open Meetings Act specifically provides that "[n]o final action may be taken at a closed session." KRS 61.815(1)(c). The board's decision in closed session constituted "final action."

3. Pending litigation/personnel exceptions.

a. Carter v. Smith, 366 S.W.3d 414 (Ky. 2012).

The Board of the Bourbon County Public Schools went into executive session to purportedly discuss "pending litigation and personnel." Prior to the meeting, members were made aware that the purpose of the closed session was to discuss the superintendent's resignation and appointment as a "consultant." After meeting for several hours, the board returned to open session and immediately voted to accept the superintendent's resignation and authorize an agreement to hire him as a consultant at a specified compensation arrangement ($133,063.09 plus moving

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expenses). The Supreme Court held that the board violated the Open Meetings Act when it discussed the resignation and consulting contract in closed session, finding that the discussions were not proper under either the personnel or litigation exceptions. There was no substantial threat of litigation, and the personnel exemption at KRS 61.810(1)(f) applies only to "discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student" – not discussion of resignations or consulting contracts.

b. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921 (Ky.

1997).

The board of education held private meetings to discuss and agree upon a general reorganization policy. When it resumed its open meeting, it voted to adopt the reorganization plan. Three administrators whose positions were eliminated challenged the validity of using the "personnel" exception, KRS 61.810(1). The board also took the position that it closed the meeting to discuss pending (i.e., potential) litigation. The Supreme Court found that the board went into executive session to consider the reorganization plan, not pending litigation, exempted under KRS 61.810(1)(c). The Court further held that the personnel exception does not allow a general discussion concerning reorganization. Id. at 923-925.

4. Acquisitions/sale of real property.

Bd. of Commissioners of City of Danville v. Advocate Communications, Inc., 527 S.W.3d 803 (Ky. 2017). The Board of Commissioners of the City of Danville went into closed session to discuss its intention to bid on property for sale pursuant to absolute auction. In the closed session, the board authorized a maximum bid and the hiring of a bidding agent. KRS 61.810(1)(b) provides an exception from the Open Meetings Act for deliberations on "future acquisition of sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency." The Supreme Court held that since the auction of the property was an absolute auction, the city's interest in bidding on the property could have been discussed in public open session without affecting the value of the property to the city's detriment. Accordingly, the closed session violated the Open Meetings Act. Id. at 807.

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5. Settlements/settlement negotiations.

Cunningham v. Whalen, 373 S.W.3d 438 (Ky. 2012). The Supreme Court held that the city of Florence did not violate the Open Meetings Act when it agreed in private discussions to settle a pending lawsuit because KRS 61.810(1)(c) specifically allows for private discussions of pending or proposed litigation. The settlement itself was voted on in an open meeting and adopted by municipal order. Id. at 441-442.

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