Do your own digging: A non-lawyer, non-journalist's guide to Kentucky's open records law
Public records are among a journalist's favorite tools, but there's plenty of fun to go around for everyone.
Maybe you're curious about who's behind a new development coming to your neighborhood. Perhaps you want to know more about an issue at your child's school or dive into the nitty-gritty of a public university coach's new contract.
Heck, maybe you're just nosy. (No judgment here, because, same.)
Regardless of your reasons, Kentucky law gives residents the right to access a breathtaking array of government documents at the state and local levels.
The Kentucky Open Records Act is a powerful weapon in the fight for government transparency and accountability — if you know how to wield it.
"It was written so that it was simple and easy to use, with the idea that it was really about citizens' access, or people's access to it," First Amendment attorney Jon Fleischaker said. "Not just reporters. Not just lawyers."
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Fleischaker would know: He was instrumental in writing the 1976 law.
"All you have to do is say, 'Dear So-and-So, I want to see this record. I want to see all these records relating to this. Thanks,'" he said. "You don't have to say anything more than that. … Then it's up to the agency to respond."
Lawrence Trageser, 57, a Spencer County blogger and self-described "ignorant landscaper," estimates he's filed about 1,000 records requests in Kentucky and beyond.
The more agencies fight to deny him, the more Trageser digs in.
"People give up easily, especially if the agencies put any type of obstruction in front of them," he said. "Whereas on the other hand, I get my jollies off. It would be nice if I could get the records, but really, it's when you start denying me, that's when I start enjoying the game, the hunt."
Here's a crash course on how you, too, can use public records:
What are public records in Kentucky?
What, exactly, defines a public record is really broad, so get the image of a dark, musty room stacked with boxes of files out of your head.
Records can be emails, databases, photos, videos and other electronic formats "regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency," according to state law.
Examples of those public agencies include city councils, police and sheriff's departments, public universities, school boards and state cabinets, and any entity that gets at least 25% of its budget from state or local funds.
While this guide is Kentucky-focused, each state has some form of access to public records, though the specifics vary from state to state.
At the federal level, there's the Freedom of Information Act, or FOIA.
What records are exempt?
Not every government document is subject to the Open Records Act.
State law does allow for specific exemptions, which mainly center around:
Personal information that would "constitute a clearly unwarranted invasion of personal privacy," like home contact information and Social Security numbers.
Pending government real estate transactions and prospective locations for businesses prior to public disclosure.
Active and ongoing police investigations, as well as records that would "have a reasonable likelihood of threatening the public safety" from a terrorist attack.
Preliminary drafts of reports, policies and the like.
(Sorry students, but you can't file a records request for test questions and answer keys from your teachers.)
If a requested document has exempt information, the law requires the disclosable information still be released. And, if an agency refuses to provide a document, it must point to the exact exemption it is claiming.
"We did not want general exemptions," Fleischaker said. "We wanted a reason for the exemptions, and we wanted them simple, easy to understand and limited."
How do I file a records request?
Public records requests need to be made in writing, whether that be hand-delivered, mailed, faxed or emailed. Some agencies, like Louisville Metro, use an online portal for filing requests.
Requesters don't have to use any specific jargon or format, but the Attorney General's Office has created a standardized form to be accepted by any agency.
State lawmakers recently changed the statute to require the requester be a "resident of the Commonwealth," meaning individuals and businesses living, operating and working within Kentucky. The law also allows non-resident journalists to request records from out-of-state.
And if you do file a records request, you don't have to tell anyone why you want the documents; "Because I can," is reason enough.
The law requires the agency to respond within five days — it used to be three — to either make the records available or tell you why more time is needed to comply and when they might be available.
(Reporter pro tip: Keep track of when you file requests and when you need to follow up, whether that's in a spreadsheet or calendar reminder. You have to stay on top of some agencies or they will take their sweet time getting back to you or outright not respond.)
What do records cost?
One of the greatest strengths of Kentucky's Open Records Act is how it keeps costs down for requesters.
Fleischaker said the law was written so that people could walk into an agency and inspect the records on site for no charge.
But in the event you want your own copy, paper records cost 10 cents per page. For digital records, agencies can charge for the physical CD or flash drive, but not the contents. With email, many records can be provided for free.
If a document exists digitally, an agency must provide it in that format. They can't, for example, try to print a spreadsheet and then charge per page (been there, seen that).
But on the flip side, agencies are not required to convert hard copies into digital formats.
The law also says agencies cannot charge for the man hours it takes to compile records. So, if your request takes a clerk 40 hours to complete and a staff attorney another 10 hours to review and redact, you can only be charged for physical cost of providing copies of the records.
That's not the case in every state, like Florida, where the Jacksonville Sheriff's Office recently attempted to charge a journalist more than $87,000 for a basic request.
Can I appeal a refusal to turn over records?
This will come as a surprise to no one, but sometimes the government will improperly withhold records (We have a legal team on standby who can attest to it).
So, make sure to scrutinize any denials or refusals you receive from government agencies, ask them to cite the specific statute that allows for them to withhold the records and double-check the law, too.
If you still disagree with the agency's refusal, you may file an appeal with the Office of the Attorney General. Include an explanation of your issue, your original request and the agency's response and send it to oagappeals@ky.gov or Open Records/Open Meetings Decisions, 700 Capitol Ave, Suite 118, Frankfort, KY 40601.
From there, assistant attorneys general will review the case and weigh in.
Under Cameron's leadership, the Attorney General's office has come under scrutiny by First Amendment advocates for dramatically curtailing the public's right to know in Kentucky.
A September 2021 Courier Journal review of more than 130 opinions found that Cameron’s office has sided significantly more often with government agencies than under his predecessor, Andy Beshear, now the Democratic governor. (Cameron, a Republican, has since filed to run for governor in 2023.)
If you're not satisfied with the AG's opinion, you're still not out of options: you can take the agency to court.
Trageser, for example, has been involved in 11 lawsuits over public records. In one case, he was awarded more than $50,000 in attorneys fees and costs from the city of Taylorsville.
"Meanwhile," he said, "the taxpayers are footing the bill for my jollies."
Reach Tessa Duvall at tduvall@courier-journal.com and 502-582-4059. Twitter: @TessaDuvall.
Open records, by the numbers
262: The number of open meetings and open records decisions issued by the Attorney General's Office in 2021.
1,200-1,400: About how many requests Jefferson County Public Schools receives in a given fiscal year. The district estimates about 25- to 30% of requests come from the news media, 20-30% are from parents or student, 15-20% from employees, 25% from community members and about 5% are commercial requests.
Resources for understanding open records:
Where to find public records and data:
This article originally appeared on Louisville Courier Journal: How to do your own digging with Kentucky's open records law
