In its 2021 regular session, the Kentucky General Assembly passed, and ultimately overrode Governor Andy Beshear’s veto of, House Bill 312 to amend the Kentucky Open Records Act, KRS 61.870 to KRS 61.884. Effective as of June 29, 2021, among other changes, the amended Act will restrict inspection rights to Kentucky “residents,” require public agencies to accept emailed open records requests, and extend public agencies’ time for handling requests from three days to five days.
A brief summary of these and some other amendments to the Act contained in HB 312 follows:
- Requester Residency. While the Act does not currently have a residency requirement applicable to requesters, as of June 29, 2021, only “residents of the Commonwealth” will be entitled to inspect public records under the Act. The term “resident of the Commonwealth” will be defined to include news organizations and individuals and business entities with certain connections to Kentucky, including, for example, registration with the Kentucky Secretary of State.
- Required Acceptance of Emailed Requests. As opposed to the current permissive language, the Act will require that public agencies accept open records requests sent via email, in addition to requests that are hand delivered, mailed, or sent via facsimile.
- Five Days for Public Agency Compliance. After the state of emergency relating to the COVID-19 pandemic is lifted, public agencies will have five days (instead of three days) to comply with requests. While the state of emergency remains, public agencies continue to have 10 days to comply.
- Online Posting of Rules and Regulations. The Act will require public agencies to post rules and regulations related to open records requests not only in a prominent location accessible to the public at the public agency, but also on the public agency’s website. The rules and regulations will be required to include the email address to which emailed requests may be directed.
- Form of Open Records Request. HB 312 imposes a new requirement for the Kentucky Attorney General to promulgate a standard form to be used for any open records request. This form must be displayed on the Attorney General’s website. While a public agency cannot require the use of any particular form for an open records request, this standard form must be accepted by every public agency for any open records request, and the form must be posted by each public agency along with its rules and regulations.
- LRC Appeals. Under the existing Act, appeals of decisions regarding requests for records or other documents in the custody of the Kentucky Legislative Research Commission or the General Assembly may be made to the Franklin Circuit Court. HB 312 includes language intended to revoke such authority granted to the Franklin Circuit Court and to provide that the LRC shall make final and unappealable decisions regarding requests to inspect its records.
Stites & Harbison attorneys are ready to assist you with your questions about these changes to the Kentucky Open Records Act and steps your organization can take to comply with the Act.