Most Frequently
Asked Open
Records
Questions
Amye L. Bensenhaver
Assistant Attorney General
[email protected]
(502)696-5664
1. When can an agency deny an open
records request as unreasonably burdensome
or intended to disrupt its essential functions?
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.
Commonwealth v. Chestnut,
250 SW3d 655 (Ky. 2008)
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“A public agency refusing to comply with an
open records request on this unreasonableburden basis faces a high proof threshold since
the agency must show the existence of the
unreasonable burden ‘by clear and convincing
evidence.’”
“The obvious fact that complying with an open
records request will consume both time and
manpower is, standing alone, not sufficiently clear
and convincing evidence of an unreasonable
burden.”
”A record's length, standing alone, is an insufficient
reason to exempt it from open records disclosure.”
Chestnut at 654,655.
Rejecting agency’s argument that
identifying and masking exempt information
in requested files imposes an unreasonable
burden, the Court observes:
“The winnowing process does not rise to the
level of an unreasonable burden under KRS
61.872(6) in light of the fact that the
General Assembly has mandated that all
public agencies must separate materials
exempted from disclosure in a document
from materials that are subject to disclosure
[at KRS 61.878(4)].”
“Inadvertent disclosures”
Rejecting agency’s argument that the
“possible inadvertent disclosure of any such
protected matter is a reason to deny open
records requests,” the Court opines, “We
trust that the [agency] will scrupulously
perform its duty to ensure that privileged
materials are not provided to anyone under
an open records request. But it is clear to us
that the prospect of a public agency's
potentially negligent disclosure of
protected items is simply an insufficient
reason to thwart the openness the General
Assembly sought to achieve when it
enacted the Open Records Act.”
Challenges posed by agency
recordkeeping system
The Court also rejects the agency argument
that its recordkeeping system created an
obstacle to access, holding that the
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.”
What is unreasonably
burdensome?
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11-ORD-144: Kentucky State Police provided clear
and convincing evidence of an undue burden
and therefore properly relied on KRS 61.872(6) in
denying request for various documents relating to
cell phone location records that encompassed in
excess of 52,000 investigative files, many still open,
and necessitated review of each of these files
prior to disclosure.
“From January 1, 2009 to present, KSP has opened
52,151 cases. To provide all subpoenas, subpoenas
duces tecum, search warrants, court orders,
correspondence, or other legal documents
pertaining to the acquisition of cell phone location
data by KSP would require a manual review and
search of all 52,151 cases. Any attempt to comply
with this action would take years to complete.”
What is a request that is
intended to disrupt an
agency’s essential functions?
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15-ORD-015: Board of Education provided clear and
convincing evidence of a “reason to believe that
repeated requests” made by open records
applicant were “intended to disrupt other essential
functions of the public agency.” Accordingly, the
Board properly denied his request on the basis of KRS
61.872(6).
Based on, inter alia, requester’s “documented
willingness to forego submitting any requests under
the Open Records Act in exchange for a financial
settlement.”
Also based on requester’s admission that request was
duplicative in part and evidence of multiple open
records requests in a period of one year.
Other alternatives: 12-ORD-097:
affirming extension of three day
deadline for response to request
implicating 22,000 emails.
“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.”
2. What information is “private” under KRS 61.878(1)(a)?
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KRS 61.878(1)(a) authorizes agencies to withhold
“public records containing information of a personal
nature where the public disclosure thereof would
constitute a clearly unwarranted invasion of 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. [Citation omitted.] As the Supreme Court noted,
the circumstances of a given case will affect the
balance.” Zink v. Commonwealth, 902 SW2d 825 (Ky.
App. 1994) citing Bd. of Examiners v. C-J and Louisville
Times, 826 SW2d 324 (Ky. 1992)
Zink analyzes personal information in
the context of injured workers’
applications for workers compensation
benefits.
 Recognizes
a superior privacy interest in
home addresses, telephone numbers,
social security numbers, and income of
applicants because disclosure of this
information will not advance the public’s
right to know how the Labor Cabinet
discharges its statutory duties in relation to
processing claims.
 Social Security Numbers.
“The statute exhibits a general bias
favoring disclosure.” Bd. of Examiners at
327.
See, e.g., Palmer v. Driggers (employee
misconduct); Cape Publications v. City of
Louisville (rape victims); Cape Publications
v. City of Louisville (performance
evaluations); LFUCG v. Lexington Herald
Leader (settlement agreements), Doe v.
Conway (Attorney General’s investigative
file); Lawson v. OAG (proffer made to AG
in bid rigging invest).
Kentucky New Era v. City of Hopkinsville, 414 SW3d 76 (Ky. 2013) Kentucky Supreme Court affirms propriety of redaction of SSNs, drivers license numbers, home addresses, telephone numbers from all arrest citations (KYIBRS reports) under privacy exception and approves the policy of “categorical redaction” “With respect to discrete types of information routinely included in an agency’s records and routinely implicating similar grounds for exemption, the agency need not undertake an ad hoc analysis of the exemption’s application to such information in each instance, but may apply a categorical rule” of nondisclosure.
In City of Hopkinsville, that “particular, recurring class of information” consisted of “information identifying private citizens in police reports.”(Addresses, phone numbers, SSNs, driver’s license numbers of witnesses, victims, and uncharged suspects as well as information identifying juveniles).
Privacy analysis remains
largely case specific
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With respect to law enforcement records, the
privacy interest “will almost always be substantial,
and the public interest in disclosure [of the private
details of personal lives] rarely so.”
Court continues to reject the practice of “blanket
redaction”– denying access to entire record
based on the existence of some exempted
information in an otherwise nonexempt record.
Example: 911 call reporting unruly neighbors (10ORD-221) v. 911 call reporting traumatic events
surrounding murder, abduction, and attempted
rape (00-ORD-162).
3. What is the agency’s liability for
disclosure of exempt records?
Hill v. Kentucky Lottery Corporation, 327
SW3d 412 (Ky. 2010): Terminated
employees brought action against
state lottery corporation, alleging unlawful
retaliation, common law wrongful
discharge, and defamation.
Hill v. Kentucky Lottery Corp. at 426.
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“Personnel records of employees of public
agencies are subject to disclosure under a formal
open record request, and those responsible for
complying with the Open Records Act may be
compelled to release information that proves
embarrassing or humiliating to public employees.”
“An officer required by law to make a disclosure of
records under the Open Records Act should not
be held liable for having done so.”
“One who is required by law to publish
defamatory matter is absolutely privileged to
publish it; however, the absolute privilege does not
extend so far as to cloak with immunity one who,
with a malicious purpose and under no legal
compulsion to do so, creates defamatory material
with the expectation that it would be published.”
“While we agree with the Restatement [2d of Torts,
Sec. 592A] that “one who is required by law to
publish defamatory matter is absolutely privileged to
publish it,” we also agree that the absolute privilege
does not extend so far as to cloak with immunity one
who, with a malicious purpose and under no legal
compulsion to do so, creates defamatory material
with the expectation that it would be published.
Under the circumstances alleged by the Hills, KLC
would have no more than a qualified privilege, to be
considered by the jury based on evidence
presented at trial. We conclude that the trial court
correctly rejected KLC's claim of absolute privilege.”
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Kentucky has no privacy act equivalent to the
federal Privacy Act of 1974, 5 U.S.C. Sec. 552a.
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Kentucky does not recognize “reverse open
records actions” equivalent to “reverse FOIA
actions” at the federal level.
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Where an agency believes it is legally obligated to
disclose records against the wishes of the
individual to whom the records relate, the agency
may proceed under Beckham v. Bd. of Educ. of
Jefferson County, 873 SW2d 575 (Ky. 1994).
Beckham v. Bd. of Educ. at 579.
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Kentucky Supreme Court recognizes that “the
General Assembly sought to promote disclosure by
devising easy means toward that end, but left the
door ajar for those who seek to prevent disclosure
by granting them a litigation remedy to enforce
the exclusions.”
“Having so highly regarded the personal privacy
exclusion, it would be anomalous if we should
disregard plain statutory language to conclude
that an affected party who may possess a right to
have documents excluded lacks standing to
assert that right.”
“Appellants, having commenced litigation prior to
release of the information sought, were entitled to
be heard on their exclusion claims ” in circuit
court.
See also Lexington Fayette Urban County
Government v. Lexington Herald Leader, 941
SW2d 469 (Ky. 1997).
4. Is an agency required to
convert hardcopy records to
electronic records and vice versa?
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.
Nonstandard or specially tailored
formats
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KRS 61.874(3): The public agency may prescribe a
reasonable fee for making copies of nonexempt
public records requested for use 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 required. 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.
Redaction is a statutorily mandated duty under
KRS 61.878(4) and is not equivalent to production
in a nonstandard or specially tailored format for
which staff costs can be recovered.
5. Is an agency required to
mail records to a requester?
KRS 61.872(3):
A person may inspect the public records: (a) During
the regular office hours of the public agency; or (b) 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 person
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.
Onsite inspection v. inspection by
receipt of copies thru the mail
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Requester may assert right to conduct onsite
inspection even if agency prefers to mail copies
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Agency cannot restrict hours of access during
regular business day or condition right of
inspection on availability of employee to oversee
inspection
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Mailing of records only required if requester resides
or works outside the county where the records are
maintained, precisely describes the records and
the records are readily available within the
agency
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Agency may require payment for copies and
postage before copies are mailed
6. When does an exempt “preliminary”
record become a nonexempt “final”
record?
KRS 61.878(1)(i) and (j) exempts preliminary drafts, notes
and correspondence with private individuals and
preliminary recommendations/preliminary memoranda
in which opinions are expressed or policies formulated
or recommended.
“From the exclusions we must conclude that with
respect to certain records, the General Assembly has
determined that the public’s right to know is subservient
to. . . the need for governmental confidentiality. A
cursory examination of KRS 61.878 reveals an extensive
list of matters excluded from public access, and this
also suggests an absence of legislative intent to create
unrestricted access to records.” Beckham at 578.
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City of Louisville v. Courier Journal (1982) and
Board of Medical Licensure v. Courier Journal
(1983) recognize that if preliminary documents are
adopted “as part of the final action, clearly the
preliminary characterization is lost to that extent”
but that “unless so adopted and made a part of
the final action,” preliminary documents retain
their preliminary characterization and may be
withheld.
See, e.g., Univ. of Kentucky v. Courier Journal
(NCAA investigative records); Palmer v. Driggers
(decision to take no action is final action); Baker v.
Jones (internal email communications).
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.”
7. Can an agency reject an open
records request transmitted by
email?
KRS 61.872(2) provides: Any person shall
have the right to inspect public records. The
official custodian may require written
application, signed by the applicant and
with his name printed legibly on the
application, describing the records to be
inspected. The application shall be hand
delivered, mailed, or sent via facsimile to
the public agency.
98-ORD-167: AG first addresses use of
email to conduct open records
business
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Recognizing that KRS 61.872(2) had not been
amended since 1994 (a fact that extends to the
present), AG observes, “the parties (meaning the
requester and the public agency) may enter into
an express agreement, or consent by a clear
course of conduct, to transact their open records
business by e-mail.” Such a course of conduct
arises when the requester transmits, and the
agency accepts without objection, an open
records request by e-mail. But neither party can
unilaterally compel the other party to conduct
their open records business by email.
Accord, 15-ORD-073.
Agency must, however, respond to the emailed
request by advising requester that he/she should
submit the request by US Mail, fax, or hand delivery
and apply the policy uniformly.
8. If a matter is in litigation, is an
agency required to honor an open
records request for records that can be
obtained through discovery?
 KRS
61.878(1): The following public records
are excluded from the application of KRS
61.870 to 61.884 and shall be subject to
inspection only upon order of a court of
competent jurisdiction, except that no
court shall authorize the inspection by any
party of any materials pertaining to civil
litigation beyond that which is provided
by the Rules of Civil Procedure governing
pretrial discovery.
Kentucky Lottery Corp. v. Stewart, 41
SW3d 860, 863 (Ky.App. 2001)
“[The civil litigation limitation] does not exempt or exclude
all records from the open records disclosure, in favor of
discovery in litigation or anticipated litigation cases, but
limits the release of records specifically listed in KRS
61.878(1) to those records which parties can obtain
through a court order. The gist of this wording is not to
terminate a person's right to use an open records request
during litigation, but to limit a court on
an open records request on excluded records, to those
records that could be authorized through a court order on
a request for discovery under the Rules of Civil Procedure
governing pretrial discovery. Any other interpretation
would allow a nonparty ... to obtain records not
exempted, while a party before an administrative agency
could not obtain these same nonexempted records
because administrative agencies are generally not subject
to pretrial discovery.”
Dept. of Revenue v. Wyrick,
323 SW3d 710, (Ky. 2010)
“In evaluating an open records request, the test is as
follows. If the requested materials are not specifically
excluded from disclosure (under KRS 61.878(l )(a)-(n), or
other applicable statutes), then the public agency must
provide the materials. If one of the fourteen
exemptions applies, then the public agency should deny
the request. However, a court of competent jurisdiction,
upon request, can nevertheless grant disclosure of any
document the agency refused to produce, with one
qualification: if the document ‘pertain[s] to civil litigation’
the court cannot order disclosure ‘beyond that which is
provided by the Rules of Civil Procedure governing pretrial
discovery.’ Even though the proceeding in the case
before us is in the nature of an administrative action rather
than a civil action, the agency would apply the same test
and any agency denial would have to be based on a
statutory or other legal exclusion.”
9. How should an agency respond if it
does not possess the requested
record?
Bowling v. Lexington-Fayette Urban County
Government, 172 SW3d 333 (Ky. 2005):
recognizing that “The Open Records Act is silent
as to the procedure to be followed when a
requester seeks to enforce the Act over a public
agency’s denial of the record’s existence. The
Act contemplates that an agency will deny an
open records request when it believes that the
requested records are exempt, but it does not
envision a situation where the agency claims
that the records do not exist.”
Bowling v. LFUCG at 341.
In order to refute a complaining party’s
claims to a nonexistent record, the agency
would essentially have to prove a negative,
presumably by presenting evidence of its
standards and practices regarding
document production and retention, as
well as its methods of searching its archives.
Therefore, we hold that before a
complaining party is entitled to a hearing
[to disprove a public agency’s denial of the
existence of records], he or she must make
a prima facie showing that such records do
exist.
Eplion v. Burchett, 354 SW3d 598 (Ky.App. 2011)
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Jailer unable to honor inmate’s request for records
relating to his incarceration due to the removal of those
records by jailer’s predecessor in office.
Court reverses circuit court opinion determining that
jailer had no legal obligation to the inmate and holds,
“The OAG has held, and we agree, that when it is
determined that an agency’s records do not exist, the
person requesting those records ‘is entitled to a written
explanation for their nonexistence.’ Ky. Op. Atty. Gen.
10–ORD–078, 2010 WL 1538882 (Ky.A.G.), p. 2.”
Where the record is legally required to exist, or it is
factually established (as by proof of receipt of a copy of
the record from another source) that the record exists or
existed, agency should explain why it is unable to
produce the requested record.
Example: Agency cannot produce requested records
because they were destroyed in a manner consistent
with proper records retention and management.
See also Bowling v. LFUCG at
848, note 3.
If there is a prima facie showing that
responsive records have not been
accounted for, an agency “may also be
called upon to prove that its search was
adequate.”
10. Can the agency refer the requester to the
requested records posted on website instead
of providing the records by traditional means?
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05-ORD-050, note 5: “We question whether furnishing an open
records requester with a website address where records
responsive to his or her request can be located, in lieu of
affording him or her an opportunity to inspect the records
onsite or receive copies of the records by mail upon payment
of a reasonable copying charge, satisfies that agency’s
obligations under the Open Records Act. We remind the
Cabinet that the Open Records Act generally contemplates
records access by means of onsite inspection or receipt of
copies through the mail. KRS 61.872(3). While a requester may
wish to avoid the effort associated with conducting onsite
inspection, or the expense associated with payment for copies,
he or she may not have access to a computer or the necessary
skills to obtain the records electronically.”
05-ORD-277 conclusively resolves this question in the negative.
Agencies can and should notify requesters of the availability of
requested records on the web, but if requesters express a
preference for access by on site inspection and/or copies
agency must discharge its duties by traditional means.
11. When is an agency’s final response
due and can the agency postpone its
final response?
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KRS 61.880(1): Each public agency, upon any request
for records made under KRS 61.870 to 61.884, shall
determine within three (3) days, excepting Saturdays,
Sundays, and legal holidays, after the receipt of any
such request whether to comply with the request and
shall notify in writing the person making the request,
within the three (3) day period, of its decision. An
agency response denying, in whole or in part,
inspection of any record shall include a statement of
the specific exception authorizing the withholding of the
record and a brief explanation of how the exception
applies to the record withheld. The response shall be
issued by the official custodian or under his authority,
and it shall constitute final agency action.
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Agency response time runs from the day after receipt of
the request per KRS 446.030(1)(a).
KRS 61.872(5)
If the public record is in active use, in storage or
not otherwise available, the official custodian
shall immediately notify the applicant and shall
designate a place, time, and date for
inspection of the public records, not to exceed
three (3) days from receipt of the application,
unless a detailed explanation of the cause is
given for further delay and the place, time, and
earliest date on which the public record will be
available for inspection.
01-ORD-140
The Act “’normally requires the agency to notify the
requester and designate an inspection date not to
exceed three days from agency receipt of the
request.’ OAG 92-117, p. 3. 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, p. 4. In all other instances, ‘timely
access’ to public records is defined as ‘any time less
than three days from agency receipt of the request.’
OAG 82-300, p. 3; see also 93-ORD-134 and
authorities cited therein.”
Records Production
Records must be available for inspection or mailing on the
third day unless:
KRS 61.874(1)—applicant requests that copies be
mailed but has not prepaid for copies (including
postage if applicable)
KRS 61.872(4)--they are not records in the custody or
control of the agency
KRS 61.872(5)—they are in active use, in storage, or
not otherwise available
KRS 61.872(6)—the request is unreasonably burdensome or is intended to disrupt essential functions
KRS 61.878(1)(a)-(n)—they are statutorily exempt.
12. What is required for an agency to
successfully invoke the law
enforcement exemption?
City of Ft. Thomas v. Cincinnati Enquirer, 406
SW3d 842 (Ky. 2013) holds that the mere
fact that a law enforcement action remains
prospective is not enough to establish that
disclosure of anything from a law
enforcement file constitutes “harm” under
law-enforcement exemption, overruling
Skaggs v. Redford, 844 S.W.2d 389 (Ky.1992).
City of Ft. Thomas at 850.
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“To invoke the law enforcement exemption under
the statute’s ‘prospective action’ prong, the
agency must show (1) that the records to be
withheld were compiled for law enforcement
purposes; (2) that a law enforcement action is
prospective; and (3) that premature release of the
records would harm the agency in some
articulable way.”
Court rejects that agency’s attempt to “conflate
the second and the third elements and have us
presume ‘harm’ from any disclosure of a police file
when an enforcement action is still a possibility.
We agree with the Court of Appeals, however,
that the City’s reading of the statute does not
comport with the clearly expressed intent of the
General Assembly.”
City of Ft. Thomas at 851
“We hold, rather, that the law enforcement
exemption is appropriately invoked only
when the agency can articulate a factual
basis for applying it, only, that is, when,
because of the record’s content, its release
poses a concrete risk of harm to the
agency in the prospective action. A
concrete risk, by definition, must be
something more than a hypothetical or
speculative concern.”
13. What should an agency do if it is
notified that its response to a request
has been appealed?
40 KAR 1:030 Section 2: Notice. Upon receiving a
complaint, the Attorney General's Office shall send notice
to the public agency that a complaint has been filed and
a copy of the complaint. The agency may provide the
Attorney General with a written response to the issues
raised in the complaint. The agency shall send a copy of
this response to the complaining party taking the appeal.
If the agency fails to provide such copy, the Attorney
General shall provide one upon request. The Attorney
General shall consider any response received before the
decision is prepared; however, the Attorney General shall
not agree to withhold action on the complaint beyond
the time limit imposed by KRS 61.846(2) and 61.880(2).
KRS 61.880(2)(c): “The burden of proof in sustaining
the action [taken] shall rest with the agency.”
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City of Ft. Thomas at 852: “The agency should
provide the requesting party and the court
[Attorney General] with sufficient information
about the nature of the withheld record (or the
categories of withheld records) and the harm that
would result from its release to permit the requester
to dispute the claim and the court [Attorney
General] to assess it.”
KRS 61.880(2)(c): [T]he Attorney General may
request additional documentation from the
agency for substantiation. The Attorney General
may also request a copy of the records involved
but they shall not be disclosed.
KRS 61.880(2)(a): The Attorney General shall
review the request and denial and issue within
twenty (20) days, excepting Saturdays, Sundays
and legal holidays, a written decision stating
whether the agency violated provisions of KRS
61.870 to 61.884.
14. What are the consequences of
ignoring an adverse open records
decision?
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KRS 61.880(5): (a) A party shall have thirty (30) days
from the day that the Attorney General renders his
decision to appeal the decision. An appeal within
the thirty (30) day time limit shall be treated as if it
were an action brought under KRS 61.882.
(b) If an appeal is not filed within the thirty (30)
day time limit, the Attorney General's decision shall
have the force and effect of law and shall be
enforceable in the Circuit Court of the county
where the public agency has its principal place of
business or the Circuit Court of the county where
the public record is maintained.
Penalties that may be imposed by the courts
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KRS 61.882(5): ) Any person who prevails against any
agency in any action in the courts regarding a violation
of KRS 61.870 to 61.884 may, upon a finding that the
records were willfully withheld in violation of KRS 61.870
to 61.884, be awarded costs, including reasonable
attorney's fees, incurred in connection with the legal
action. If such person prevails in part, the court may in
its discretion award him costs or an appropriate portion
thereof. In addition, it shall be within the discretion of
the court to award the person an amount not to
exceed twenty-five dollars ($25) for each day that he
was denied the right to inspect or copy said public
record.
KRS 61.991(2): a) Any official of a public agency who
willfully conceals or destroys any record with the intent
to violate KRS 61.870 to 61.884 shall be guilty of a Class A
misdemeanor for each separate violation. (b) Any
official of a public agency who fails to produce any
record after entry of final judgment directing that such
records shall be produced shall be guilty of contempt.
City of Ft. Thomas at 854
addresses willfulness
“[F]or the purposes of KRS 61.882(5), ‘willful’ connotes
that the agency withheld requested records without
plausible justification and with conscious disregard of
the requester’s rights. We have characterized a trial
court’s decision on the issue of willfulness as ‘a
finding of fact’ and, as such, it is not to be disturbed
on appeal ‘unless clearly erroneous.’ Bowling, 172
S.W.3d at 344. A factual finding is not clearly
erroneous, moreover, if it is ‘supported by substantial
evidence,’ i.e., supported by ‘evidence of
substance and relevant consequence having the
fitness to induce conviction in the minds of
reasonable [persons].’” (Citation omitted).
City of Ft. Thomas at 854


“Where ‘willfulness’ is found, the statute still leaves
the imposition of fees, costs, and/or penalties to
the trial court’s discretion. (‘Any person who
prevails ... may ... be awarded costs.’). The factors
bearing on that determination are apt to include
the extent of the agency’s wrongful withholding of
records; the withholding’s egregiousness; harm to
the requester as a result of the wrongful
withholding, including the expense of litigating the
matter; and the extent to which the request could
be thought to serve an important public purpose.”
Only if the trial court has abused its discretion will
its fee determination be disturbed on appeal, only,
that is, if that determination was “arbitrary,
unreasonable, unfair, or unsupported by sound
legal principles.”
Kentucky cabinet penalized $756,000 for
'willfully circumventing' child-abuse open
records ruling
FRANKFORT, KY. — The Kentucky Cabinet for Health and Family Services must
pay a $756,000 penalty after it “willfully circumvented” open-records laws by
failing to fully release records on child abuse fatalities and near deaths,
according to a scathing court order issued Monday.
Franklin Circuit Judge Phillip Shepherd said the cabinet made a “mockery”
of Kentucky’s Open Records Act by maintaining that documents —
including dozens already in the public domain, such as reports that contain
the identities of convicted child abusers — remain confidential.
His 56-page ruling orders the cabinet to pay statutory penalties and produce
information it has withheld, arguing that the cabinet has demonstrated an
unwillingness to comply with the law without “significant” court sanctions.
The plaintiffs — The Courier-Journal and Lexington Herald-Leader — are also
allowed to seek attorney fees.
The files are subject to open records law “to ensure both the cabinet and
the public do everything possible to prevent the repeat of such tragedies in
the future,” Shepherd wrote. “There can be no effective prevention when
there is no public examination of the underlying facts.”
C-J awarded lawyer fees in battle over childdeath records
FRANKFORT, Ky.--Kentucky was ordered Tuesday to pay
more than $300,000 to two Kentucky newspapers, including
The Courier-Journal, for attorneys fees after they
successfully sued for access to records involving children
killed while under state supervision.
Franklin Circuit Judge Phillip Shepherd's final ruling rejects a
request by the Cabinet for Health and Family Services to
dismiss his December order requiring the cabinet to pay
the plaintiffs' attorneys fees, though that figure was not set
until Tuesday.
In awarding Courier-Journal attorneys $228,887 and HeraldLeader attorneys $72,897, Judge Shepherd cited four
children by name, "and dozens of others," who died while
under the cabinet's supervision. He said the court did not
consider their deaths "inevitable."
Health cabinet appeals ruling
on child abuse records
FRANKFORT, Ky. – The Kentucky Cabinet for Health and Family
Services is appealing a recent court decision in a five-year legal
battle over newspaper access to child abuse records.
Franklin Circuit Judge Phillip Shepherd found last year that the
cabinet "willfully circumvented" the Open Records Act by failing to
fully release files on child abuse fatalities and near deaths.
He has fined the cabinet $756,000 and ordered payment more
than $300,000 in attorney fees to The Courier-Journal and
Lexington Herald-Leader, which sued for access to the documents.
But the cabinet filed an appeal with the Kentucky Court of
Appeals on Monday, asking for the case to be transferred directly
to the Kentucky Supreme Court.
Officials also are requesting that Shepherd stay his order to release
case files on children who were being monitored by the state
when they died or nearly died from abuse or neglect.
Cabinet for Health and Family Services v.
Todd County Standard, Inc..
--SW3d– 2015WL8488911 (nonfinal)
“Upon review of the Attorney General's Opinion, it is true that the
Attorney General did not determine that the records were, in fact,
accessible under the ORA. However, the Attorney General was
prevented by the Cabinet from reaching this issue. The Cabinet
repeatedly claimed to the Attorney General and to the Standard
that it possessed no records concerning A.D.'s fatality. It was only
after the enforcement action was filed in the circuit court that the
Cabinet admitted to even possessing records as to A.D.
Additionally, the Cabinet blatantly refused to respond to the
Attorney General's specific questions as to the Cabinet's prior
involvement with A.D. or with her family. It is highly probable that if
the Cabinet had responded truthfully to these questions the
existence of records relating to A.D. would have been revealed.
By refusing to respond to the Attorney General's questions, the
Cabinet certainly frustrated the Attorney General's statutory
review under KRS 61.880 and also the timely release of records
under the ORA.”
Todd County Standard at 6, 7
“In this case, the circuit court found that the Cabinet acted
willfully in denying the Standard's open records request in violation
of the ORA:
[T]he Cabinet's actions denying public disclosure of
records regarding [A.D.] clearly constitute a willful violation
of the Kentucky Open Records Act. The Cabinet maintains
it was appropriate to misrepresent to the Standard that
they possessed no documents because the Standard had
requested “public records” relating to her instead of “all
records.” The Kentucky Supreme Court has found
“an open records request should not require the specificity
and cunning of a carefully drawn set of discovery
requests, so as to outwit narrowing legalistic interpretations
by the government.” Com. v. Chestnut, 250 S.W.2d 655,
662 (Ky.2008). The Court finds the Cabinet's actions were
an attempt at misdirection and obfuscation designed to
prevent public disclosure in the same manner condemned
by the Kentucky Supreme Court in Chestnut. Therefore, the
Court finds that the nondisclosure was intentional and
willful.
This court has already commented on the Cabinet's actions that
frustrated review by the attorney general. Upon the whole of this
case, we cannot conclude that the circuit court's finding that the
Cabinet acted willfully to be clearly erroneous. Consequently, we
hold that the circuit court did not err by awarding attorney's fees,
costs, and penalties under KRS 61.882(5).”
Questions?
Amye L. Bensenhaver
Assistant Attorney General
(502)696-5655
[email protected]