2017 in review: the top ten Kentucky open meetings and records stories of the past year

COG2Its easy to identify the most significant years in the history of the Open Meetings and Open Records Acts since I first professionally encountered them as an assistant attorney general in 1991.

In 1992 and 1994, for example, the legislature dramatically overhauled the then nearly 20 year old acts, clarifying—among other things– the attorney general’s role as a formal mediator of meetings and records access disputes between citizens and public agencies. The attorney general’s decisions in these disputes were thereafter statutorily recognized to have the “force and effect of law” if not appealed to the courts.

It was also in 1992 that the Kentucky Supreme Court issued a landmark opinion—Kentucky Board of Examiners of Psychologists v. Courier Journal—declaring, among other things, that our laws “exhibit a general bias favoring disclosure.” The case established the roadmap for future interpretation and inaugurated a period of vigorous judicial interpretation that continues to this day.

The following years witnessed highs and lows in open meetings and open records analysis.

2005, for example, is remembered as the year Kentucky came to terms with the grim realities of the modern world—to which we had been tragically awakened four years earlier—by enacting a homeland security exception to the open meetings and open records laws. The exceptions are narrowly drafted and rarely successfully invoked but available in those unusual cases where disclosure “would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in. . .protecting against. . .a terrorist act.”

In 2008 the courts issued an opinion whose humble origins bely its great importance. Commonwealth v. Chestnut involved a prison inmate’s attempts to obtain the nonexempt portions of his inmate file. It  remains—in my view—one of the most significant cases issued in the 40 plus years of the laws’ existence.

2013 was a year of unprecedented activity in the courts. In a series of opinions, the courts advanced—mostly–the laws and overruled a 1992 opinion that led law enforcement agencies to erroneously believe they could deny access to all investigative records while an investigation was “open.”

2016  stands out as the year in which the courts penalized the Cabinet for Health and Family Services in a case involving willful nondisclosure of records relating to the deaths or near deaths of neglected, abused and dependent children under its supervision in an amount exceeding $756,000. The Court expressed “exasperation at the Cabinet’s systematic and categorical disregard for the rule of law” and declared that “[t]he Open Records Act is neither an ideal nor a suggestion. It is the law. Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

2017 will be remembered as a year that did not, generally, disappoint proponents of open government. It requires little effort to identify the top ten open meetings and records stories of the past year. They are, in no particular order:

  1. Audit finds willful obstruction of the public’s right to know by the University of Louisville and its Foundation: a June 2017 audit revealed that University and Foundation officials and employees “engaged in a course of conduct aimed at evading public scrutiny through malicious evasion, obfuscation and secreting away of public records on non-foundation premises” to conceal exorbitant spending practices. Our analysis of these offenses can be found here.
  2. Kentucky Supreme Court confirms the public’s right of access to the financial records of a utilities management company:  privately incorporated but wholly funded through its contract with local government, Utility Management Group  had evaded scrutiny since 2011 asserting that it was not a public agency for open records purposes. A 2012 amendment to the Open Records Act cast doubt on the attorney general’s 2011 decision that UMG’s financial records were subject to inspection, but in November the Court rejected the argument in Utility Management Group LLC v. Pike County Fiscal Court. We examined the case here. A recent article in the Appalachian News Express indicates that the fiscal court has not yet obtained UMG’s financial records. Since the Supreme Court remanded the case to the Pike Circuit Court with directions to enter an order directing disclosure, we trust there will be no further delays.
  3. Finance and Administration Cabinet appeals The State Journal’s favorable attorney general open meetings ruling: in October the attorney general determined that the Finance Cabinet’s refusal to publicize — and admit the public to —  meetings of the Capital Plaza built-to-suit selection committee–a committee established by statute with express authority to conduct specified business, but not all business, in closed session– violated the Open Meetings Act following The State Journal’s legal challenge. The Cabinet appealed the attorney general’s decision, naming the reporter who initiated the challenge as defendant, and the issue is currently pending in the Franklin Circuit Court. Our report on the case can be found here.
  4. State universities’ ongoing lawsuits against their student newspapers, in which the attorney general has intervened, yield mixed results: in 2016, the attorney general determined that the University of Kentucky failed to prove that records relating to sexual harassment complaints against a professor were excluded from public inspection when the university refused to honor the attorney general’s statutory request to conduct a confidential review of the records to confirm or refute the university’s position. UK appealed, other universities followed suit, and the Attorney General intervened to preserve his office’s statutory right to confidentially review agency records in open records disputes. In August, the Fayette Circuit Court ruled that UK was not required to honor the attorney general’s request to review records — if characterized by the university as “education records” — for purposes of mediating an open records dispute. In October, the Franklin Circuit Court reached the opposite conclusion in a case involving the UK student newspaper and Kentucky State University, expressly rejecting the Fayette Circuit Court’s analysis. The cases are pending in the Kentucky Court of Appeals.
  5. Danville Advocate Messenger prevails in protracted open meetings litigation with the City of Danville: in a rare open meetings opinion, the Kentucky Supreme Court held that closed board meetings at which the Danville Board of Commissioners agreed to bid on a building that had come up for sale at an absolute auction — and decided on a maximum bid — were impermissible under the open meetings exception for “[d]eliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency”  and therefore violated the law. Unfortunately, the Court reversed the lower court’s award of attorneys’ fees, and the newspaper must absorb the cost of the lengthy and expensive litigation. We reported on the case here.
  6. House of Representatives releases an arguably exempt “preliminary” investigative report involving sexual harassment allegations leveled against Representative Jeff Hoover but Kentucky Retirement System refuses to release a nonexempt “post-decisional” actuarial analysis of the published pension reform bill: on December 3, the Center for Open Government commended the House of Representatives for its decision to release a “preliminary” investigative report relating to allegations of misconduct leveled against the House speaker prepared by a Louisville law firm. In the same post, we criticized the Kentucky Retirement Systems’ refusal to release an actuarial analysis of the published pension reform bill based on its claim that it does not possess a copy of the analysis and its suggestion that all future requests for the analysis be referred to State Budget Director John Chilton. We maintained that “Chilton does not have unilateral authority to deny the public access to the report, and KRS is foreclosed from ceding its open records decision making authority on the report, or any other record that it prepares, owns, uses, possesses or retains, to a single trustee.” The issue has been appealed to the attorney general and an open records decision is expected soon.
  7. City of Taylorsville requests that the Spencer Circuit Court impose punitive and compensatory damages on an open records requester: in an unprecedented and wholly unauthorized move, the Taylorsville is seeking damages from an open records requester who received a favorable ruling from the attorney general in an open records dispute involving access to responses filed by city commissioners to ethics complaints against them. The city appealed the attorney general’s decision and included a claim for damages based on the requester’s publication of the corresponding complaint which he obtained by means other than an open records request. The case is set for a hearing on February 8 in the Spencer Circuit Court on a motion to dismiss alleging, among other things, that the claim for damages is intended to intimidate and bully the requester from exercising his open records and First Amendment rights. We examined the case here.
  8. Fayette Circuit Court declares that the University of Kentucky violated the Open Meetings and Open Records Acts in responding to the Lexington Herald-Leader’s open meetings complaint and records request: in June, the university refused to release an audit conducted at its chief compliance officer’s direction following receipt of complaints concerning a then-recently acquired heart clinic in Eastern Kentucky and a related PowerPoint presented to the board of trustees by outside counsel at a regularly scheduled dinner meeting held the night before its May 2016 business meeting. Our analysis of the opinion, which has not been appealed, is found here.
  9. Open records and meetings staff of the Kentucky Attorney General’s Office issues multiple decisions advancing the public’s right to know: while we have not endorsed every decision issued by the open records and meetings staff in 2017, there were several decisions that dramatically moved the laws forward. These include 17-ORD-224in which the staff determined that the Cabinet for Health and Family Services violated the Open Records Act in withholding investigative records relating to a murder/suicide involving a young child and his mother, both under the Cabinet’s supervision, without showing how release of the records “poses a concrete risk of harm” to the agency in “a prospective action.” As we observed in our analysis, “The law is clear on this point, and past open records decisions should no longer muddy these waters.” In 17-ORD-268, the staff  correctly determined that the Office of the Governor violated the Open Records Act in denying a request for the keywords used to filter “profane, obscene, or clearly off-topic comments” from its Facebook page. And in a decision that has not yet been posted on the attorney general’s website—17-ORD-273–the staff determined that the University of Kentucky improperly allowed an employee to conduct public business on his private e-mail account through automatic forwarding of all messages on his public account, failed to conduct an adequate search for the emails and failed to properly maintain public e-mail in a manner consistent with proper records management practices.
  10. Bluegrass Institute Center for Open Government receives a favorable decision from the attorney general in an open meetings challenge involving a closed meeting of a quorum of the members of the House of Representatives at which public business was discussed and the House appeals that decision to the Franklin Circuit Court: on November 30, 2017, the Kentucky House of Representatives filed an appeal in the Franklin Circuit Court from an open meetings decision issued by the attorney general on November 1 determining that the House violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members–without legal justification–to discuss pension reform. The Bluegrass Institute Center for Open Government challenged the House’s illegal closed session in a complaint to the Speaker of the House and an appeal to the attorney general. The Bluegrass Institute is therefore named as defendant in the appeal to the Franklin Circuit Court. The long term implications of the case have been examined in a number of posts the latest of which can be found here.

We include at number 11 on our list of the most important open meetings and open records stories of 2017, and at the risk of immodesty, the creation of the Center for Open Government within the Bluegrass Institute in early 2017 and the publication in May of our report, “Shining the Light on Kentucky’s Sunshine Laws.”  In that report, we call for clarification, reconciliation, and modernization of the Open Meetings and Open Records Acts which were last substantially amended in 1994. We undertake this initiative as a means of furthering the Bluegrass Institute’s longstanding commitment to promoting the goal of open, transparent and accountable government.

All in all, 2017 has been a reasonably good year for open government.

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