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AN ACT relating to law enforcement records. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
ď˘Section 1. KRS 61.878 is amended to read as follows: 3
(1) The following public records are excluded from the application of KRS 61.870 to 4
61.884 and shall be subject to inspection only upon order of a court of competent 5
jurisdiction, except that no court shall authorize the inspection by any party of any 6
materials pertaining to civil litigation beyond that which is provided by the Rules of 7
Civil Procedure governing pretrial discovery: 8
(a) Public records containing information of a personal nature where the public 9
disclosure thereof would constitute a clearly unwarranted invasion of personal 10
privacy; 11
(b) Records confidentially disclosed to an agency and compiled and maintained 12
for scientific research. This exemption shall not, however, apply to records the 13
disclosure or publication of which is directed by another statute; 14
(c) 1. Records confidentially disclosed to an agency or required by an agency 15
to be disclosed to it, generally recognized as confidential or proprietary, 16
which if openly disclosed would permit an unfair commercial advantage 17
to competitors of the entity that disclosed the records; 18
2. Records confidentially disclosed to an agency or required by an agency 19
to be disclosed to it, generally recognized as confidential or proprietary, 20
which are compiled and maintained: 21
a. In conjunction with an application for or the administration of a 22
loan or grant; 23
b. In conjunction with an application for or the administration of 24
assessments, incentives, inducements, and tax credits as described 25
in KRS Chapter 154; 26
c. In conjunction with the regulation of commercial enterprise, 27 UNOFFICIAL COPY 25 RS BR 1551
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including mineral exploration records, unpatented, secret 1
commercially valuable plans, appliances, formulae, or processes, 2
which are used for the making, preparing, compounding, treating, 3
or processing of articles or materials which are trade commodities 4
obtained from a person; or 5
d. For the grant or review of a license to do business. 6
3. The exemptions provided for in subparagraphs 1. and 2. of this 7
paragraph shall not apply to records the disclosure or publication of 8
which is directed by another statute; 9
(d) Public records pertaining to a prospective location of a business or industry 10
where no previous public disclosure has been made of the business' or 11
industry's interest in locating in, relocating within or expanding within the 12
Commonwealth. This exemption shall not include those records pertaining to 13
application to agencies for permits or licenses necessary to do business or to 14
expand business operations within the state, except as provided in paragraph 15
(c) of this subsection; 16
(e) Public records which are developed by an agency in conjunction with the 17
regulation or supervision of financial institutions, including but not limited to 18
banks, savings and loan associations, and credit unions, which disclose the 19
agency's internal examining or audit criteria and related analytical methods; 20
(f) The contents of real estate appraisals, engineering or feasibility estimates and 21
evaluations made by or for a public agency relative to acquisition of property, 22
until such time as all of the property has been acquired. The law of eminent 23
domain shall not be affected by this provision; 24
(g) Test questions, scoring keys, and other examination data used to administer a 25
licensing examination, examination for employment, or academic 26
examination before the exam is given or if it is to be given again; 27 UNOFFICIAL COPY 25 RS BR 1551
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(h) Records of law enforcement agencies or agencies involved in administrative 1
adjudication that were compiled in the process of detecting and investigating 2
statutory or regulatory violations if the disclosure of the information could 3
pose an articulable risk of[would] harm to the agency or its investigation by 4
revealing the identity of informants or witnesses not otherwise known or by 5
premature release of information to be used in a prospective law enforcement 6
action or administrative adjudication. Unless exempted by other provisions of 7
KRS 61.870 to 61.884, public records exempted under this provision shall be 8
open after enforcement action is completed or a decision is made to take no 9
action; however, records or information compiled and maintained by county 10
attorneys or Commonwealth's attorneys pertaining to criminal investigations 11
or criminal litigation shall be exempted from the provisions of KRS 61.870 to 12
61.884 and shall remain exempted after enforcement action, including 13
litigation, is completed or a decision is made to take no action. The 14
exemptions provided by this subsection shall not be used by the custodian of 15
the records to delay or impede the exercise of rights granted by KRS 61.870 16
to 61.884; 17
(i) Preliminary drafts, notes, correspondence with private individuals, other than 18
correspondence which is intended to give notice of final action of a public 19
agency; 20
(j) Preliminary recommendations, and preliminary memoranda in which opinions 21
are expressed or policies formulated or recommended; 22
(k) All public records or information the disclosure of which is prohibited by 23
federal law or regulation or state law; 24
(l) Public records or information the disclosure of which is prohibited or 25
restricted or otherwise made confidential by enactment of the General 26
Assembly, including any information acquired by the Department of Revenue 27 UNOFFICIAL COPY 25 RS BR 1551
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in tax administration that is prohibited from divulgence or disclosure under 1
KRS 131.190; 2
(m) 1. Public records the disclosure of which would have a reasonable 3
likelihood of threatening the public safety by exposing a vulnerability in 4
preventing, protecting against, mitigating, or responding to a terrorist act 5
and limited to: 6
a. Criticality lists resulting from consequence assessments; 7
b. Vulnerability assessments; 8
c. Antiterrorism protective measures and plans; 9
d. Counterterrorism measures and plans; 10
e. Security and response needs assessments; 11
f. Infrastructure records that expose a vulnerability referred to in this 12
subparagraph through the disclosure of the location, configuration, 13
or security of critical systems, including public utility critical 14
systems. These critical systems shall include but not be limited to 15
information technology, communication, electrical, fire 16
suppression, ventilation, water, wastewater, sewage, and gas 17
systems; 18
g. The following records when their disclosure will expose a 19
vulnerability referred to in this subparagraph: detailed drawings, 20
schematics, maps, or specifications of structural elements, floor 21
plans, and operating, utility, or security systems of any building or 22
facility owned, occupied, leased, or maintained by a public 23
agency; and 24
h. Records when their disclosure will expose a vulnerability referred 25
to in this subparagraph and that describe the exact physical 26
location of hazardous chemical, radiological, or biological 27 UNOFFICIAL COPY 25 RS BR 1551
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materials. 1
2. As used in this paragraph, "terrorist act" means a criminal act intended 2
to: 3
a. Intimidate or coerce a public agency or all or part of the civilian 4
population; 5
b. Disrupt a system identified in subparagraph 1.f. of this paragraph; 6
or 7
c. Cause massive destruction to a building or facility owned, 8
occupied, leased, or maintained by a public agency. 9
3. On the same day that a public agency denies a request to inspect a public 10
record for a reason identified in this paragraph, that public agency shall 11
forward a copy of the written denial of the request, referred to in KRS 12
61.880(1), to the executive director of the Kentucky Office of Homeland 13
Security and the Attorney General. 14
4. Nothing in this paragraph shall affect the obligations of a public agency 15
with respect to disclosure and availability of public records under state 16
environmental, health, and safety programs. 17
5. The exemption established in this paragraph shall not apply when a 18
member of the Kentucky General Assembly seeks to inspect a public 19
record identified in this paragraph under the Open Records Law; 20
(n) Public or private records, including books, papers, maps, photographs, cards, 21
tapes, discs, diskettes, recordings, software, or other documentation regardless 22
of physical form or characteristics, having historic, literary, artistic, or 23
commemorative value accepted by the archivist of a public university, 24
museum, or government depository from a donor or depositor other than a 25
public agency. This exemption shall apply to the extent that nondisclosure is 26
requested in writing by the donor or depositor of such records, but shall not 27 UNOFFICIAL COPY 25 RS BR 1551
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apply to records the disclosure or publication of which is mandated by another 1
statute or by federal law; 2
(o) Records of a procurement process under KRS Chapter 45A or 56. This 3
exemption shall not apply after: 4
1. A contract is awarded; or 5
2. The procurement process is canceled without award of a contract and 6
there is a determination that the contract will not be resolicited; 7
(p) Client and case files maintained by the Department of Public Advocacy or any 8
person or entity contracting with the Department of Public Advocacy for the 9
provision of legal representation under KRS Chapter 31; 10
(q) Except as provided in KRS 61.168, photographs or videos that depict the 11
death, killing, rape, or sexual assault of a person. However, such photographs 12
or videos shall be made available by the public agency to the requesting party 13
for viewing on the premises of the public agency, or a mutually agreed upon 14
location, at the request of; 15
1. a. Any victim depicted in the photographs or videos, his or her 16
immediate family, or legal representative; 17
b. Any involved insurance company or its representative; or 18
c. The legal representative of any involved party; 19
2. Any state agency or political subdivision investigating official 20
misconduct; or 21
3. A legal representative for a person under investigation for, charged with, 22
pled guilty to, or found guilty of a crime related to the underlying 23
incident. The person under investigation for, charged with, pled guilty 24
to, or found guilty of a crime related to the underlying incident or their 25
immediate family shall not be permitted to have access to the 26
photographs or videos; 27 UNOFFICIAL COPY 25 RS BR 1551
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(r) Records confidentially maintained by a law enforcement agency in 1
accordance with a wellness program, including an early intervention system, 2
as described in KRS 15.409; and 3
(s) Communications of a purely personal nature unrelated to any governmental 4
function. 5
(2) No exemption in this section shall be construed to prohibit disclosure of statistical 6
information not descriptive of any readily identifiable person. 7
(3) No exemption in this section shall be construed to deny, abridge, or impede the 8
right of a public agency employee, including university employees, an applicant for 9
employment, or an eligible on a register to inspect and to copy any record including 10
preliminary and other supporting documentation that relates to him or her. The 11
records shall include but not be limited to work plans, job performance, demotions, 12
evaluations, promotions, compensation, classification, reallocation, transfers, lay-13
offs, disciplinary actions, examination scores, and preliminary and other supporting 14
documentation. A public agency employee, including university employees, 15
applicant, or eligible shall not have the right to inspect or to copy any examination 16
or any documents relating to ongoing criminal or administrative investigations by 17
an agency. 18
(4) If any public record contains material which is not excepted under this section, the 19
public agency shall separate the excepted and make the nonexcepted material 20
available for examination. 21
(5) The provisions of this section shall in no way prohibit or limit the exchange of 22
public records or the sharing of information between public agencies when the 23
exchange is serving a legitimate governmental need or is necessary in the 24
performance of a legitimate government function. 25
(6) When material is made available pursuant to a request under subsection (1)(q) of 26
this section, the public agency shall not be required to make a copy of the recording 27 UNOFFICIAL COPY 25 RS BR 1551
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except as provided in KRS 61.169, and the requesting parties shall not be limited in 1
the number of times they may view the material. 2