On open records: Well yes, but ...

Amye Bensenhaver
Amye Bensenhaver

The Courier Journal provided a “non-journalist’s guide to the open records law” in Sunday’s digital edition.

The Kentucky Open Government Coalition is alway pleased when the open records law gets a nod. Kentuckians have come to take the law for granted in a time when many public officials are overtly hostile to it.

The guide emphasizes the value of the law not just to the media but to the public. Indeed, it is ordinary Kentuckians who represent the largest open records constituency. We are grateful for the recognition.

There are, however, a few statements in the guide that must be clarified and others with which we take issue.

1. For example, this quotation appears in the Courier-Journal guide as a means of suggesting the ease of making a records request:
“‘Dear So-and-So, I want to see this record. I want to see all these records relating to this.’ You don’t have to say anything more than that. Then it’s up to the agency to respond.”

Well yes, but ...

  • The open records law now authorizes a public agency to require the requester to state how s/he qualifies as a resident under the residency requirement enacted last year. That definition of resident is found at KRS 61.870(1)(a) through (g).

    For most Kentuckians, this statement of residency should suffice: “I am an individual residing in the Commonwealth under KRS 61.870(10)(a).”

    The Coalition encourages requesters who wish to avoid delays to include it in their original requests. The attorney general’s statutorily mandated (but optional) request form includes a check-off for establishing residency.
  • The Coalition encourages requesters to confirm, in their original request, that the request is not intended for a commercial purpose. The agency can also delay access by requiring a certification of noncommercial or commercial use.

    In a nutshell, commercial use is defined at KRS 61.870(4) as “any use by which the user expects a profit through either commission, salary, or fee.”

    If a requester can truthfully state that his or her request is not submitted for a commercial purpose, s/he should include a statement to this effect: “I certify that my request is submitted for a noncommercial purpose.”
  • The Coalition encourages requesters to state whether they wish to obtain paper copies by snail mail or electronically stored records by email, or whether they wish to review the records onsite before obtaining copies.

    If the requester can precisely identify the record they seeks, a request for receipt of a copy of the record by mail or email is a good option. If the requester cannot precisely describe the record, they might instead request to conduct onsite inspection — before obtaining copies — to ensure they aren't being charged for records in which the requester has no interest.

    Incidentally, an agency is not required to mail copies to requesters who reside, or have their principal place of business, in the county where the records are maintained. Some agencies waive this requirement, but they can, in fact, require such requesters to come to the agency to review and obtain copies of the records.
  • Finally, the Coalition encourages a carefully worded open records request. “All the records related to this” may or may not — depending on the breadth of the subject — be a description adequate to require the agency to produce records for onsite inspection. It is not a precise description that triggers the agency’s duty to mail copies.

    It is advisable to frame a request in such a way that “a reasonable person can ascertain its nature and scope.” “A brief and simple request” for records — as opposed to the DOA “request for information” — is best.

    This is correct: “I request a copy of the city’s contract with Smith’s Towing Company.”

    This is incorrect: “What are the terms of the city’s contract with Smith’s Towing Company and when was it executed?”

    The line between records and information has become blurred in the digital age, but requesters should proceed with caution.
  • Nothing is more likely to prompt an agency denial than an open records request for “Any and all records related to ...” The agency will argue that the request is too broad and/or unreasonably burdensome. Equally fatal is a request for information. The agency will argue that it is not required to provide information, only records.

    We wish it were as easy as the Courier suggests — and perhaps it is for the media — but public agencies have become increasingly sophisticated in denying requests. The public must be careful to avoid these traps for the unwary. Our recommendations, along with a sample open records request, can be found at this Google Drive location.


2. Lawrence Trageser, a self-described “ignorant landscaper,” has filed over 1000 open records requests and litigated 11 cases.

Well yes, but ...

Trageser is hardly the typical non-lawyer, non-journalist open records requester. Landscaper? Yes. Ignorant? No.

Trageser is unique in “getting his jollies” from fighting public agencies, and he does little to advance the cause of open government when he celebrates the fact that “taxpayers are footing the bill for [his] jollies.”

Most members of the public do not request records to “get their jollies.” Most lament that it is taxpayers who bear the costs when the court finds that an agency willfully withheld public records and awards penalties, costs, and fees.

Statements to this effect fuel agency belief that open records laws are nothing but an expensive nuisance.

The Coalition knows Trageser, regularly works with Trageser, and respects Trageser’s efforts on behalf of open government.  There are three appellate court opinions — two published — bearing his name.

But his own recent statements to us — indicating that he has expended a jaw dropping amount of his own money in his long open records campaigns, more than the $50,000 he has recovered — suggest that he is anything but typical.

We give credit where credit is due, but Lawrence is the least typical non-lawyer, non-journalist requester we know because of his balls to the wall /take no prisoners approach.

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In the final analysis, we can quibble about some parts of the Courier’s guidance and amplify on other parts (in the interest of absolute accuracy), but its message is a good one:

The Kentucky Open Records Law was enacted in 1976 by well-intentioned lawmakers who dedicated their efforts to drafting a law for the public’s benefit — not just lawyers and journalists.

The Kentucky Open Government Coalition urges the public to use the open records law responsibly and with a clear understanding of what is required and what to expect.

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Amye Bensenhaver

Amye is a retired assistant AG who specialized in open records laws. She is the co-founder of the Kentucky Open Government Coalition. (Read the rest of her bio on the Contributors page.)


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