Monday, March 17, 2014

Kentucky Open Records Act: What You Need to Know

One of the most powerful tools available to criminal defense attorneys and investigators is the Kentucky Open Records Act (KRS 61.870 through KRS 61.884, hereinafter “KORA”). KORA was signed into law in 1976 and it establishes a right of public access to public records kept by government entities. KORA provides clever defense attorneys with access to evidence that the prosecutor most likely has not seen. Evidence obtained from KORA can be invaluable at trial as substantive evidence (subject to evidentiary and discovery rules), impeachment evidence, or prior to trial for the purposes of negotiation. Examples of evidence that I have obtained through KORA requests are police agency policy and procedure manuals, police training records, and prior police suspensions for misconduct. This article is by no means meant to be an exhaustive treatise on KORA (there are over 908 reported decisions on the statute discussing KORA exemptions alone); rather, it is written as a starting point for an attorney or investigator looking to begin improving their practice through use of KORA. For a more detailed introduction, a reader should consult Kentucky Open Meetings and Open Records Laws: Statutes and Q&A, a document put out by the Legislative Research Commission and available online at

The first step in making a KORA request is to identify the appropriate entity that keeps the record you wish to obtain. In most cases, that will be with the law enforcement agency that keeps the records you wish to acquire. After determining which agency has custody of the record, it is worth the effort of calling the office and asking who is in charge of open records requests at that office. The particular agency may have a form that they prefer you use when making a request. While KORA authorizes two forms of records inspection (in person and over mail), in practice most agencies prefer sending records over mail, even if the person does not meet the out of county requirement for KORA by mail. See KRS 61.823(3) which tells us that if a person’s primary residence is outside of the county where the record is stored, she can request that a written copy of the record be mailed to her residence or place of business. KRS 61.872(3).

Once you have identified the proper agency and have spoken to the person in charge of answering KORA requests you have to draft the request itself. It is worth the time to look at the list of materials that are exempted from KORA production in KRS 61.878. Be specific and general in your production requests; ask for any and all records that you want that you can make a good faith argument are not excluded in KRS 61.878. Sign and send the request to the person in charge of answering them. Depending on the volume of the record and the type of record, you may want to discuss with the records custodian the medium (digital or physical) you would like to receive the records in. Generally digital will be less expensive than physical (both paper and shipping costs), but if the records are kept in a physical format, KORA does not require the records custodian to convert them to digital for your convenience. KRS 61.874(2)(a).

Once an agency receives a KORA request, it has three days, excluding weekends and legal holidays to respond to the request under KRS 61.880.  If an agency denies a request, KRS 61.880 requires the agency to state in writing the specific exception preventing release of the materials.  Once a person is denied access to records under KRS 61.880(1) she can proceed to appeal or enforce KORA in one of two ways. She can either choose to proceed against the agency in an administrative process by petitioning the Attorney General to review the decision and issue an advisory opinion, KRS 61.880(2), or she can choose to appeal the denial of the disclosure in the Circuit Court for the county that the agency sits in. See KRS 61.882. It is important to note that the first method gives the attorney multiple “bites at the apple” on appeal. After having a decision to deny disclosure affirmed by the Attorney General, an attorney can still choose to appeal that decision to the local Circuit Court within thirty days of the opinion being issued. However, an attorney may feel that a local Circuit Court is more likely to be sympathetic to her cause. If this is the case, she can bypass the KRS 61.880(2) process and proceed directly to Circuit Court under KRS 61.882.

Contributed by Brad Clark