200 KAR 1:020. Access to public records

Link to law: http://www.lrc.ky.gov/kar/200/001/020.htm
Published: 2015

      200 KAR 1:020.

Access to public records.

 

      RELATES TO: KRS

Chapter 61

      STATUTORY

AUTHORITY: KRS 61.876(3)

      NECESSITY,

FUNCTION, AND CONFORMITY: The Finance and Administration Cabinet is authorized

by KRS 61.876(3) to promulgate uniform rules governing public access to public

records maintained by administrative agencies of the state government. This

administrative regulation establishes the general rules to be followed by all

state administrative agencies in affording public access to their records and

by persons applying to inspect such records. This amendment adds the word

diskettes to the definition of "public record" in accordance with

Chapter 150, Section 2, 1986 Acts of the General Assembly, as requested by the

Interim State Government Committee.

 

      Section 1.

General. Consistent with the provisions of KRS 61.870 to 61.884, the public

records of all administrative agencies of the Kentucky State Government, except

as provided in Section 4 of this administrative regulation, shall be open for

inspection by any person in accordance with the procedures established by this

administrative regulation.

 

      Section 2.

Definitions. The following terms shall have the meaning assigned herein:

      (1) "State

administrative agency" means every program cabinet, department and

administrative body of the Kentucky State Government as defined by KRS 12.010,

headed by, or whose membership is composed of, persons appointed by the

Governor, and their component organizational subdivisions.

      (2) "Public

record" means all books, papers, maps, photographs, cards, tapes, discs,

diskettes, records or other documentary materials prepared, owned, used, in the

possession of or retained by a state administrative agency, but does not

include any records owned by a private person or corporation in the possession

of a state administrative agency or an officer or employee thereof, and not

related to any function, activity, program or operation funded by the state.

      (3)

"Official custodian" means the chief administrative officer of a

state administrative agency who by virtue of his position, is responsible for

the maintenance, care and keeping of all the public records of his agency, or

if so designated in writing by the chief administrative officer of a state

administrative agency, the head of each office, bureau, division or other

organizational subdivision within a state administrative agency, who is

responsible for the maintenance, care and keeping of all the public records of

his organizational unit.

      (4)

"Custodian" means any officer or employee of a state administrative

agency having public records in his personal custody and control.

 

      Section 3. (1)

Any person may, on written application to the official custodian describing the

records, inspect and make abstracts and memoranda of the contents of any of the

public records, except those listed in Section 4 of this administrative

regulation, of all state administrative agencies. Copies of any written

material shall be furnished, on request, to any person requesting them, on

payment of fee of ten (10) cents a page for each record copies; copies of

photographs, maps and other nonwritten material, and records stored in computer

files or libraries, shall be furnished to any person requesting them on payment

of a fee equal to the actual cost to the agency of producing the copies.

Persons requesting copies of records shall be advised of the total actual cost

of copies of written material, and the actual, if known, or approximate cost or

producing copies of nonwritten material or of records stored in computer files

or libraries before the copies are prepared. The fee shall be collected before

the copies are handed or sent to the person requesting them. The fees

established herein shall not be collected, for copies of records requested in

the course of their employment by employees of state administrative agencies,

and shall be inapplicable in cases of documents printed for sale for which a

fee is fixed by or pursuant to law or which are customarily distributed without

charge.

      (2) The

inspection of public records of state administrative agencies shall in all

cases be made in the presence of an employee of the agency, on premises

occupied by the agency having custody of the records, during the usual office

hours of the particular office or other organizational unit having physical

possession of the records. The official custodian of the records of each state

administrative agency, and of each administrative subdivision of the agency,

shall be responsible for the assignment of agency employees, as a duty in addition

to their usual duties, to assist persons applying to inspect the public records

of the agency and to insure protection of the records against damage and

disorganization.

 

      Section 4. The

public records enumerated in subsections (1) through (10) of this section

shall, except as provided herein, be subject to inspection only upon an Order

of the Court of this Commonwealth or of the United States. The exemptions under

this section notwithstanding, nothing herein shall prohibit or limit the

exchange of public records or the sharing of information between state

administrative agencies and other public agencies when the exchange of such

records or sharing of such information will serve legitimate governmental needs

or is necessary in the performance of legitimate governmental functions, nor

shall the enumeration of any material herein prohibit disclosure of statistical

information not readily identifiable of any person. If any public record

contains material subject to public inspection only by court order, and other

material not so excluded from public inspection, the custodian of the record

shall, on application by any person for inspection of such record, segregate or

remove the excluded material from the record and the nonexcluded material shall

then be available for inspection in accordance with the application for

inspection. The official custodian of the records of each state administrative

agency shall generally exclude from public inspection, except by an order of

court as provided in this section.

      (1) Public

records containing information of a personal nature where public disclosure

would constitute a clearly unwarranted invasion of personal privacy.

      (2) Records

confidentially disclosed to an agency and compiled and maintained for:

scientific research; in conjunction with an application for a loan; the

administrative regulation of commercial enterprise, including mineral

exploration records; unpatented, secret, commercially valuable plans,

appliances, formulas, or processes, which are used for making, preparing,

compounding, treating, or processing of articles or materials which are trade

commodities obtained from a person and which are generally recognized as

confidential; or for the grant or review of a license to do business which if

openly disclosed, would permit an unfair advantage to competitors of the

subject enterprise, unless the disclosure or publication of such records is

directed by law.

      (3) Public

records pertaining to the prospective location of a business or industry where

no previous public disclosure has been made of the business' or industry's

interest in locating in, relocated within, or expanding within the

Commonwealth. (Provided, however, that this exemption shall not include

applications filed with state administrative agencies for permits or licenses

necessary to do business or to expand business operations within the state,

except as provided in subsection (2) of this section).

      (4) The contents

of real estate appraisals, engineering or feasibility estimates and evaluations

made by or for an agency relative to the acquisition of real property, until

such time as all of the property has been acquired.

      (5) Test

questions, scoring keys and other examination data used to administer a

licensing examination, or an examination for employment before the examination

is given or if it is to be given again.

      (6) Centralized

criminal history records maintained by the Kentucky Justice Cabinet and

intelligence and investigative reports maintained by state criminal justice

agencies except as provided in KRS 17.150, and records of law enforcement or

administrative agencies compiled in the process of detecting and investigating

statutory or regulatory violations if the disclosure of the information

contained in such records would harm the agency by revealing the identity of

informants not otherwise known or by the premature release of information to be

used in a prospective prosecution or suit or an administrative adjudication.

Except as provided by KRS 17.150, public records exempted under this subsection

shall be open for inspection after adjudicative action is completed or a

decision has been made to take no action.

      (7) The official

custodian shall have the burden of justifying with specificity a refusal of a

demand for inspection of any public records covered by the exemptions provided

in this subsection except centralized criminal history records maintained by

the Kentucky Justice Cabinet. Preliminary drafts, notes, correspondence between

state administrative agencies and private individuals, other than correspondence

intended to give notice of final action by an agency.

      (8) Preliminary

recommendations and memoranda in which opinions are expressed or policies

formulated or recommended.

      (9) All public

records or information, the disclosure of which is prohibited by federal law or

regulation.

      (10) Public

records or information, the disclosure of which is prohibited or restricted or

otherwise made confidential by the statutes of this Commonwealth.

 

      Section 5.

Application for Inspection of Public Records. (1) Persons requesting to inspect

public records of state administrative agencies shall file a written

application describing the records requested to be inspected, on a form

prescribed by the Finance and Administration Cabinet, with the official custodian

of the records of the office of the agency having physical custody of the

records. Agency employees shall assist, on request of the applicant, in

completing the form; the applicant shall sign the application form. The

application form shall include a receipt to be completed and signed by the

custodian of the records for payment received for copies of records requested

by applicants and one (1) copy of the receipt shall be furnished to the

applicant.

      (2) Application

forms for the inspection of public records of state administrative agencies

will be stocked by and available from the Central Stores of the Finance and

Administration Cabinet. Each state administrative agency shall be responsible

for obtaining from Central Stores an adequate supply of the application forms

for use by each of its administrative subdivisions so that at all times there

will be sufficient number of forms on hand to comply with requests for

inspection of the agency's records.

 

      Section 6.

Agency Responsibility. (1) Each state administrative agency shall display a

copy of this administrative regulation in a prominent location in each of its

offices to which the general public has access. Copies of this administrative

regulation, suitable for posting, shall be printed and each agency shall be

responsible for obtaining the number of copies of the printed administrative

regulation required to comply with this section from the Central Stores of the

Finance and Administration Cabinet.

      (2) The printed

copies of this administrative regulation shall bear the following caption which

shall be appropriately completed by each agency and its subdivisions:

 

NOTICE

 

ADMINISTRATIVE

REGULATIONS GOVERNING

INSPECTION

OF THE PUBLIC RECORDS OF THE

 

___________________________________________________

(Name

of State Administrative Agency)

 

___________________________________________________

(Office,

Bureau, Division, etc.)

 

Pursuant to KRS 61.870

to 61.884, the public is notified that, as provided herein, the public records

of the above named Agency of the Commonwealth of Kentucky are open for

inspection by any person on written application to __________ (name), _________

(title), official custodian of the public records of the _____________ (state

administrative agency) whose address is ___________ or to __________ (name),

__________ (title), official custodian of the public records of the

____________, (office, bureau, division, etc.) whose address is ______________,

from ____ a.m. to ____ p.m., Monday through Friday, each week, except holidays.

Application forms for the inspection of the public records of this agency will

be furnished on request to any person by an employee in this office. Assistance

in completing the application form will be provided by an employee on request.

      Applicants for

the inspection of public records shall be advised of the availability of the

records requested for inspection, and shall be notified in writing not later

than three (3) working days after receipt of an application for inspection of

any reason the records requested are not available for public inspection.

      Copies of

written material in the public records of this agency shall be furnished to any

person requesting them on payment of a fee of ten (10) cents a page; copies of

nonwritten records (photographs, maps, material stored in computer files or

libraries, etc.) shall be furnished on request, on payment of a charge equal to

the actual cost of producing copies of such records by the most economic

process not likely to damage or alter the record.

 

This the ______ day of

______________, 19___.

 

___________________________________________________

(Agency 

Head or Designated Representative)

 

      (3) The official

custodian of records requested for public inspection shall promptly determine

the availability of such records for inspection; if it is determined that the

records are not available for inspection, the applicant, if present, will be

orally advised, subject to written confirmation, or notified in writing, not

later than three (3) working days after the date of receipt of the written

application for inspection of the records of the reason or reasons why the

records are not available for inspection. If the record sought is in active

use, in storage or not otherwise available, the applicant will be advised of

the reason for the delay in providing access to the record and of the earliest

practicable date, time and place that the record will be available for

inspection. If an application for inspection of a record is denied because it

is of a kind, or contains material enumerated in Section 4 of this

administrative regulation, the official custodian shall advise the applicant in

writing of the reason for denial, in whole or in part, and shall include a

statement of the specific exception contained in Section 4 of this administrative

regulation, and in KRS 61.878, authorizing denial of the application and an

explanation of how the exception applies to the record withheld. A copy, signed

by the official custodian of the records, of the writing denying any

application for the inspection of the public records of any state

administrative agency, shall be sent to the Attorney General. If any person who

has been denied the right to inspect any public records of a state

administrative agency requests the Attorney General to review the denial of his

application, the agency shall furnish such additional documentation concerning

the circumstances of the denial of inspection of the records and a copy of the

records, as the Attorney General may request. If any person denied the right to

inspect the records of a state administrative agency elects to file suit

against an agency to compel inspection of the records denied, the agency shall

immediately advise the Attorney General of the action and forward to the

Attorney General on the day served, a copy of the Summons in the action. (3

Ky.R. 175; eff. 9-1-76; Am. 16 Ky.R. 373; eff. 10-11-89.)
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