Open records Q and A: Understanding the law and how to use it
In recognition of Sunshine Week, and to help citizens better understand what the Open Records Act is and how to use it, we offer these frequently asked questions and answers. Today, we focus on the scope and application of the Act and how to avoid pitfalls in submitting a request for records. Tomorrow, we will look at what to expect from a public agency in responding to a request and how to appeal the denial of a request to the Kentucky Attorney General.
What is the Open Records Act?
The Open Records Act (ORA) is the Kentucky law that guarantees your right to inspect and obtain copies of state and local public agency records regardless of who you are or why you want the records. If you want to inspect and copy records of a federal public agency – ex., the U.S. Department of Justice, the Environmental Protection Agency, the Internal Revenue Service – you must make your request under the federal Freedom of Information Act (FOIA). Different rules apply to FOIA requests.
Does ORA favor the public’s right to inspect and copy public records?
ORA recognizes that “free and open examination of public records is in the public interest,” and the 14 exceptions to this statutorily recognized policy must be “strictly construed.” Our courts have stated that ORA “exhibits a bias favoring disclosure” and must be interpreted “most favorably to the public.” ORA does not require a requester to prove he is entitled to a record. Instead, it requires the agency to prove that the requester is not entitled to the record.
What is a "public agency" that is subject to ORA?
“Public agency” is broadly defined to include all state or local government officials (ex., the Governor, the county judge-executive, the sheriff, the superintendent of schools); all state and local departments (ex., the Cabinet for Health and Family Services, the city planning and zoning board, the police department ); all state and local legislative bodies (ex., the General Assembly, the fiscal court, the city council); all university governing boards, boards of education, site based councils; state or local agencies that are created by statute; all committees – even advisory committees -- created by these agencies; and more.
Don't be afraid to make an open records request even if you are in doubt.
What is a public record?
“Public record” is also broadly defined as “all documentation” that a public agency prepares, owns, uses, possesses, or retains. This includes all paper records and all electronic/digital records.
What is the difference between a public record and an open record?
ORA establishes 14 exceptions that an agency can rely on to deny a records request. An open record is any public record that is not protected by one or more of these exceptions and must be disclosed. All open records are public records, but not all public records are open records. Public records are presumed to be open unless one or more of the exceptions protect it.
How do I make an open records request?
Using ORA is easy. Simply submit a written request to the public agency describing the record you want to inspect/copy. ORA requires you to sign the request and print your name, but some agencies waive this requirement.
You are not required to refer to the Open Records Act, but it helps.
Your request should be addressed to the “custodian of records.” If you know the name of the agency’s custodian, address your request to him or her. If you want records from a city, the city clerk is custodian of records and you should address your request to him or her. If you do not know the custodian’s name, address your request to the “Official Custodian of Records” or “Custodian of Records.”
If you know the name of the agency’s attorney , it may be helpful to send a copy of your request to him or her.
Be sure to keep a copy of your written request. You will need it if your request is denied – or ignored – and you decide to appeal.
How do I describe the records I want to inspect or receive copies of by mail?
Request records. Do not request information, demand the creation of a list, or ask questions.
Right: “Please provide me with copies of payroll records containing the current salaries or hourly rates for all city employees.”
Wrong: “How much does each city employee earn?”
“I request a list of all city employee’s salaries.”
Avoid asking for “any and all records.” Agencies often deny these requests as overbroad or not sufficiently specific. If you want all records that are responsive to your request, ask for “all” records and avoid the “legalese.”
How specific do I have to be in describing the requested records?
ORA allows you to access records by inspecting them at the agency or by receiving copies through the mail. If you want to inspect the records at the agency, you must “describe” the records. If you want the agency to mail you records, you must “precisely describe” the records. The agency may also refuse to mail you copies unless you live or work outside the county where the records are kept.
If you don’t know how to describe the records “precisely,” it is usually better to request to inspect the records. This makes it much more difficult for the agency to deny your request as not sufficiently precise.
If the agency agrees to mail you copies, it can require you to prepay a reasonable fee (usually ten cents per page) and postage.
How can I “precisely describe” a record when I don’t know what the agency calls it?
This can be challenging. All public agencies have a records retention schedule that describes records “series” (ex., “timesheets,” “accounts receivable,” “routine correspondence”), and how long they must be kept. Records retention schedules can be helpful in identifying the records you are seeking and determining if they still exist. These state and local records schedules can be found at: https://kdla.ky.gov/records/recretentionschedules/pages/default.aspxIt is helpful to narrow the scope of a request by subject, timeframe and, if possible, the names of public employees who may have knowledge of the record. This makes it more difficult for an agency to deny your request as overly burdensome.
How do I submit my request?
ORA has not been updated since 1994 and requires that you submit your request by U.S Mail, by fax, or by hand delivery. Some, but not all, agencies accept emailed requests. If the agency you are dealing with does not, the custodian may ask you to resubmit your request by U.S. Mail, fax, or hand delivery.
You do not have to use certified mail, keep a copy of a fax receipt, or get a date stamped copy to prove delivery of a request, but you may do any one of these things if you believe the agency may deny that it received your request.
Providing contact information (address, telephone number, etc.) is not a legal requirement, but it’s a good idea. This information can be used by the agency to contact you if it cannot understand your request and needs clarification or to notify you when the records you requested are ready for inspection/copying. These tips should be helpful in submitting your request. Tomorrow, we will look at what to expect from the agency after you submit your request and what you can do if your request is denied.