CHAPTER 33A: PUBLIC RECORDS

Section

General

   33A.01   Definitions

Procedures for Requesting Public Records

   33A.05   Initial request with immediate inspection

   33A.06   Referral to proper custodian

   33A.07   Public records not immediately available

   33A.08   Refusal of unreasonable requests

   33A.09   Time limitation; denial of inspection

   33A.10   Concealing or destroying records prohibited

   33A.11   Access to records relating to particular individual

   33A.12   Public records protected from disclosure

GENERAL

§ 33A.01 DEFINITIONS.

   For purposes of this chapter the following words and phrases shall have the following meanings ascribed to them respectively.

   “CITY.” The city government of this city.

   “COMMERCIAL PURPOSE.” The direct or indirect use of any 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. “COMMERCIAL PURPOSE” shall not include publication or related use of a public record by a newspaper or periodical; use of a public record by a radio or television station in its news or other informational programs; or use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties.

(KRS 61.870(4))

   “CUSTODIAN.” The official custodian or any authorized person having personal custody and control of public records. The “CUSTODIAN” having personal custody of most of the public records of this city is the City Clerk/Treasurer.

(KRS 61.870(6))

   “OFFICIAL CUSTODIAN.” The chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care, and keeping of public records, regardless of whether the records are in his actual personal custody and control. The “OFFICIAL CUSTODIAN” of this city shall be the Mayor.

(KRS 61.870(5))

   “MECHANICAL PROCESSING.” Any operation or other procedure which is transacted on a machine, and which may include, but is not limited to a copier, computer, recorder or tape processor, or other automated device.

(KRS 61.870(8))

   “MEDIA.” The physical material in or on which records may be stored or represented, and which may include, but is not limited to paper, microform, disks, diskettes, optical disks, magnetic tapes, and cards.

(KRS 61.870(7))

   “PUBLIC AGENCY.” Every city government board, commission, and authority; every city council and council board, commission and committee; every school district board, special district board, and municipal corporation; every city government agency, including the policy-making board of an institution of education created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act; any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government; any entity when the majority of its governing body is appointed by a “public agency”, as defined by this section; a member or employee of a “public agency”, a state or local officer, or any combination thereof; any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, or controlled by a “public agency” as defined in this section; an interagency body of two (2) or more public agencies where each “public agency” is defined in this section.

(KRS 61.870(1))

   “PUBLIC RECORD.” All books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency. “PUBLIC RECORD” shall not include any records owned or maintained by or for a body referred to above in the definition of “PUBLIC AGENCY” (KRS 61.870(1)(h)) that are not related to functions, activities, programs, or operations funded by state or local authority.

(KRS 61.870(2))

   “REASONABLE FEE” or “FEE.” The fair payment required by a public agency for making copies of non exempt public records requested for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.

   “REQUEST.” An oral or written application by any person to inspect public records of the city.

   “RESIDENT OF THE COMMONWEALTH.”

      (1)   An individual residing in the Commonwealth;

      (2)   A domestic business entity with a location in the Commonwealth;

      (3)   A foreign business entity registered with the Secretary of State;

      (4)   An individual that is employed and works at a location or locations within the Commonwealth;

      (5)   An individual or business entity that owns real property within the Commonwealth;

      (6)   Any individual or business entity that has been authorized to act on behalf of an individual or business entity defined in paragraphs (1) to (5) of this definition; or

      (7)   A news-gathering organization as defined in KRS 189.635(8)(b)1.a. to e.

(KRS 61.870(10))

   “SOFTWARE.” The program code which makes a computer system function, but does not include that portion of the program code which contains public records exempted from inspection as provided by KRS 61.878 or specific addresses of files, passwords, access codes, user identifications, or any other mechanism for controlling the security or restricting access to public records in the public agency's computer system. “SOFTWARE” consists of the operating system, application programs, procedures, routines, and subroutines such as translators and utility programs, but does not include that material which is prohibited from disclosure or copying by a license agreement between a public agency and an outside entity which supplied the material to the agency.

(KRS 61.870(3))

PROCEDURES FOR REQUESTING PUBLIC RECORDS

§ 33A.05 INITIAL REQUEST WITH IMMEDIATE INSPECTION.

   (A)   All public records shall be open for inspection by any resident of the Commonwealth, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right. No resident of the Commonwealth shall remove original copies of public records from the offices of any public agency without the written permission of the official custodian of the record.

(KRS 61.872(1))

   (B)   (1)   Any resident of the Commonwealth shall have the right to inspect public records. The official custodian may require a written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The official custodian may require the applicant to provide a statement in the written application of the manner in which the applicant is a resident of the Commonwealth under paragraphs (1) to (6) of definition of “RESIDENT OF THE COMMONWEALTH” in § 33A.01 .

      (2)   The written application shall be:

         (a)   Hand delivered;

         (b)   Mailed;

         (c)   Sent via facsimile; or

         (d)   Sent via e-mail to the public agency’s official custodian of public records or his or her designee at the e-mail address designated in the public agency's rules and regulations adopted pursuant to KRS 61.876.

      (3)   A public agency shall not require the use of any particular form for the submission of an open records request, but shall accept for any request the standardized form developed under KRS 61.876(4).

(KRS 61.872(2))

   (C)   A resident of the Commonwealth may inspect the public records:

      (1)   During the regular office hours of the public agency; or

      (2)   By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the resident of the Commonwealth requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.

(KRS 61.872(3))

   (D) The applicant shall have the right to make abstracts of the public records and to obtain copies of all public records not exempted by this chapter. When copies are requested, the custodian may require a written request and advance payment of the prescribed fee as defined in § 33A.01.

(KRS 61.874(1))

   (E) 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.

   (F) The minimum standard format in paper form shall be defined as not less than 8½ inches x 11 inches in at least one (1) color on white paper, or for electronic format, in a flat file electronic American Standard Code for Information Interchange (ASCII) format. If the public agency maintains electronic public records in a format other than ASCII, and this format conforms to the requestor’s requirements, the public records may be provided in this alternate electronic format for standard fees as specified by the public agency. Any request for a public record in a form other than the forms described in this section shall be considered a nonstandardized request.

(KRS 61.874(1))

   (G) Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee. The public agency from which copies of nonexempt public records are requested for a commercial purpose may require a certified statement from the requestor stating the commercial purpose for which they shall be used, and may require the requestor to enter into a contract with the agency. The contract shall permit use of the public records for the stated commercial purpose for a specified fee. The fee may be based on the cost to the public agency of media, mechanical processing and staff required to produce a copy of the public record or records or the cost to the public agency of the creation purchase, or the acquisition of the public records.

(KRS 61.874(4))

   (H) It shall be unlawful for a person to obtain a copy of any part of a public record for a:

      (1) Commercial purpose, without stating the commercial purpose, if a certified statement from the requestor was required by the public agency pursuant to subsection (G) of this section: or

      (2) Commercial purpose, if the person uses or knowingly allows the use of the public record for a different commercial purpose; or

      (3) Noncommercial purpose, if the person uses or knowingly allows the use of the public record for a commercial purpose. A newspaper, periodical, radio or television station shall not be held to have used or knowingly allowed the use of the public record for a commercial purpose merely because of its publication or broadcast, unless it has also given its express permission for that commercial use.

(KRS 61.874(5))

   (I)   Online access to public records in electronic form, as provided under this section, may be provided and made available at the discretion of the public agency. If a party wishes to access public records by electronic means and the public agency agrees to provide online access, a public agency may require that the party enter into a contract, license, or other agreement with the agency, and may charge fees for these agreements. Fees shall not exceed:

      (1)   The cost of physical connection to the system and reasonable cost of computer time access charges;

      (2)   If the records are requested for a commercial purpose, a reasonable fee based on the factors set forth in subsection (G).

(KRS 61.874(6))