61.878 Certain public records exempted from inspection except on order of court --

1,840 words·~8 min read·/ky/61-878

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Restriction of state employees to inspect personnel files prohibited.

(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:

(a)Public records containing information of a personal nature where the public

disclosure thereof would constitute a clearly unwarranted invasion of personal

privacy;

(b)Records confidentially disclosed to an agency and compiled and maintained

for scientific research. This exemption shall not, however, apply to records the

disclosure or publication of which is directed by another statute;

to be disclosed to it, generally recognized as confidential or proprietary,

which if openly disclosed would permit an unfair commercial advantage

to competitors of the entity that disclosed the records;

2. Records confidentially disclosed to an agency or required by an agency

to be disclosed to it, generally recognized as confidential or proprietary,

which are compiled and maintained:

a. In conjunction with an application for or the administration of a

loan or grant;

b. In conjunction with an application for or the administration of

assessments, incentives, inducements, and tax credits as described

in KRS Chapter 154;

c. In conjunction with the regulation of commercial enterprise,

including mineral exploration records, unpatented, secret

commercially valuable plans, appliances, formulae, or processes,

which are used for the making, preparing, compounding, treating,

or processing of articles or materials which are trade commodities

obtained from a person; or

d. For the grant or review of a license to do business.

3. The exemptions provided for in subparagraphs 1. and 2. of this

paragraph shall not apply to records the disclosure or publication of

which is directed by another statute;

(d)Public records pertaining to a prospective location of a business or industry

where no previous public disclosure has been made of the business' or

industry's interest in locating in, relocating within or expanding within the

Commonwealth. This exemption shall not include those records pertaining to

application to agencies for permits or licenses necessary to do business or to

expand business operations within the state, except as provided in paragraph

(c)of this subsection;

(e)Public records which are developed by an agency in conjunction with the

regulation or supervision of financial institutions, including but not limited to

banks, savings and loan associations, and credit unions, which disclose the

agency's internal examining or audit criteria and related analytical methods;

(f)The contents of real estate appraisals, engineering or feasibility estimates and

evaluations made by or for a public agency relative to acquisition of property,

until such time as all of the property has been acquired. The law of eminent

domain shall not be affected by this provision;

(g)Test questions, scoring keys, and other examination data used to administer a

licensing examination, examination for employment, or academic

examination before the exam is given or if it is to be given again;

(h)Records of law enforcement agencies or agencies involved in administrative

adjudication that were compiled in the process of detecting and investigating

statutory or regulatory violations if the disclosure of the information could

pose an articulable risk of harm to the agency or its investigation by revealing

the identity of informants or witnesses not otherwise known or by premature

release of information to be used in a prospective law enforcement action or

administrative adjudication. Unless exempted by other provisions of KRS

61.870 to 61.884, public records exempted under this provision shall be open

after enforcement action is completed or a decision is made to take no action;

however, records or information compiled and maintained by county attorneys

or Commonwealth's attorneys pertaining to criminal investigations or criminal

litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and

shall remain exempted after enforcement action, including litigation, is

completed or a decision is made to take no action. The exemptions provided

by this subsection shall not be used by the custodian of the records to delay or

impede the exercise of rights granted by KRS 61.870 to 61.884;

(i)Preliminary drafts, notes, correspondence with private individuals, other than

correspondence which is intended to give notice of final action of a public

agency;

(j)Preliminary recommendations, and preliminary memoranda in which opinions

are expressed or policies formulated or recommended;

(k)All public records or information the disclosure of which is prohibited by

federal law or regulation or state law;

(l)Public records or information the disclosure of which is prohibited or

restricted or otherwise made confidential by enactment of the General

Assembly, including any information acquired by the Department of Revenue

in tax administration that is prohibited from divulgence or disclosure under

KRS 131.190;

(m)1. Public records the disclosure of which would have a reasonable

likelihood of threatening the public safety by exposing a vulnerability in

preventing, protecting against, mitigating, or responding to a terrorist act

and limited to:

a. Criticality lists resulting from consequence assessments;

b. Vulnerability assessments;

c. Antiterrorism protective measures and plans;

d. Counterterrorism measures and plans;

e. Security and response needs assessments;

f. Infrastructure records that expose a vulnerability referred to in this

subparagraph through the disclosure of the location, configuration,

or security of critical systems, including public utility critical

systems. These critical systems shall include but not be limited to

information technology, communication, electrical, fire

suppression, ventilation, water, wastewater, sewage, and gas

systems;

g. The following records when their disclosure will expose a

vulnerability referred to in this subparagraph: detailed drawings,

schematics, maps, or specifications of structural elements, floor

plans, and operating, utility, or security systems of any building or

facility owned, occupied, leased, or maintained by a public

agency; and

h. Records when their disclosure will expose a vulnerability referred

to in this subparagraph and that describe the exact physical

location of hazardous chemical, radiological, or biological

materials.

2. As used in this paragraph, "terrorist act" means a criminal act intended

to:

a. Intimidate or coerce a public agency or all or part of the civilian

population;

b. Disrupt a system identified in subparagraph 1.f. of this paragraph;

c. Cause massive destruction to a building or facility owned,

occupied, leased, or maintained by a public agency.

3. On the same day that a public agency denies a request to inspect a public

record for a reason identified in this paragraph, that public agency shall

forward a copy of the written denial of the request, referred to in KRS

61.880(1), to the executive director of the Kentucky Office of Homeland

Security and the Attorney General.

4. Nothing in this paragraph shall affect the obligations of a public agency

with respect to disclosure and availability of public records under state

environmental, health, and safety programs.

5. The exemption established in this paragraph shall not apply when a

member of the Kentucky General Assembly seeks to inspect a public

record identified in this paragraph under the Open Records Law;

(n)Public or private records, including books, papers, maps, photographs, cards,

tapes, discs, diskettes, recordings, software, or other documentation regardless

of physical form or characteristics, having historic, literary, artistic, or

commemorative value accepted by the archivist of a public university,

museum, or government depository from a donor or depositor other than a

public agency. This exemption shall apply to the extent that nondisclosure is

requested in writing by the donor or depositor of such records, but shall not

apply to records the disclosure or publication of which is mandated by another

statute or by federal law;

(o)Records of a procurement process under KRS Chapter 45A or 56. This

exemption shall not apply after:

1. A contract is awarded; or

2. The procurement process is canceled without award of a contract and

there is a determination that the contract will not be resolicited;

(p)Client and case files maintained by the Department of Public Advocacy or any

person or entity contracting with the Department of Public Advocacy for the

provision of legal representation under KRS Chapter 31;

(q)Except as provided in KRS 61.168, photographs or videos that depict the

death, killing, rape, or sexual assault of a person. However, such photographs

or videos shall be made available by the public agency to the requesting party

for viewing on the premises of the public agency, or a mutually agreed upon

location, at the request of;

1. a. Any victim depicted in the photographs or videos, his or her

immediate family, or legal representative;

b. Any involved insurance company or its representative; or

c. The legal representative of any involved party;

2. Any state agency or political subdivision investigating official

misconduct; or

3. A legal representative for a person under investigation for, charged with,

pled guilty to, or found guilty of a crime related to the underlying

incident. The person under investigation for, charged with, pled guilty

to, or found guilty of a crime related to the underlying incident or their

immediate family shall not be permitted to have access to the

photographs or videos;

(r)Records confidentially maintained by a law enforcement agency in

accordance with a wellness program, including an early intervention system,

as described in KRS 15.409; and

(s)Communications of a purely personal nature unrelated to any governmental

function.

(2)No exemption in this section shall be construed to prohibit disclosure of statistical

information not descriptive of any readily identifiable person.

(3)No exemption in this section shall be construed to deny, abridge, or impede the

right of a public agency employee, including university employees, an applicant for

employment, or an eligible on a register to inspect and to copy any record including

preliminary and other supporting documentation that relates to him or her. The

records shall include but not be limited to work plans, job performance, demotions,

evaluations, promotions, compensation, classification, reallocation, transfers, lay-

offs, disciplinary actions, examination scores, and preliminary and other supporting

documentation. A public agency employee, including university employees,

applicant, or eligible shall not have the right to inspect or to copy any examination

or any documents relating to ongoing criminal or administrative investigations by

an agency.

(4)If any public record contains material which is not excepted under this section, the

public agency shall separate the excepted and make the nonexcepted material

available for examination.

(5)The provisions of this section shall in no way prohibit or limit the exchange of

public records or the sharing of information between public agencies when the

exchange is serving a legitimate governmental need or is necessary in the

performance of a legitimate government function.

(6)When material is made available pursuant to a request under subsection (1)(q) of

this section, the public agency shall not be required to make a copy of the recording

except as provided in KRS 61.169, and the requesting parties shall not be limited in

the number of times they may view the material.