In July, 2017, we criticized an open records decision issued by the Kentucky Attorney General declaring that a public agency could place restrictions on an open records recipient’s use of nonexempt public records without subverting the intent of the Open Records Law.
We suggested that an attorney general’s decision endorsing agency’s censorship of a recipient’s publication of records obtained under that law represented a direct assault on the public’s right to know. We cited four prior attorney general holdings — three of them legally binding open records decisions — that directly contradicted the attorney general’s 2017 decision.
Following her unsuccessful appeal to the attorney general, the open records recipient, a Cabinet for Health and Family Services employee who had been instructed by the Cabinet that she could not discuss the records released to her with anyone, challenged that attorney general’s decision in the Oldham Circuit Court. In late July, we reported on the hearing in that case.
We were outraged by the dismissive attitude of the Cabinet’s attorney toward the hearing. He characterized the issue before the court as “much ado about nothing.” When he and I met outside the courtroom prior to the hearing, he expressed surprised at my presence declaring that the issue was “stupid.”
Oldham Circuit Judge Karen A. Conrad did not agree.
On October 24, she issued an opinion declaring that the Cabinet for Health and Family Services violated the Open Records Law when it disclosed public records to the recipient with instructions not to share the records with anyone else.
Judge Conrad was apparently no more impressed by the Cabinet attorney’s “remarkable display of obfuscation” at the hearing than were we. In her opinion, she focused on the referenced legal authorities issued by the attorney general — the most recent in 2014 — which counsel for the Cabinet and the attorney general chose to ignore.
Noting that the “the common theme among them is that it is impermissible for an agency to direct how a person may use documents procured from an open records request,” Judge Conrad concluded that although the Cabinet “supplied the requested documents pursuant to an open records request,” it “violate[d] the Open Records Act in advising the [recipient of the records] that she could not discuss the contents with anyone but her supervisors.”
In so doing, she repudiated the Cabinet’s actions and the attorney general’s 2017 open records decision approving those actions.
Cases like this one do not make headlines. The Cabinet employee who brought it is not a famous, or infamous, public official. The stakes are high, ostensibly at least, only to her.
But her courage and sacrifice in bringing this action cannot be discounted. And the principle that she and her attorney successfully vindicated is fundamental to the Open Records Law.
“What is at stake” we asked in our analysis of the circuit court hearing in July? “Nothing less than the right of an open records requester to freely use the records to which she is afforded access. What good is a public record if it cannot be made public?”
Cynics may disagree, but these small battles in the war on agency abuse of the Open Records Law do as much, if not more, to steadily advance and invigorate the cause of transparency and accountability than some of the widely reported cases whose holdings may have limited application.
The individuals who bring these cases in circuit courtrooms across the state are true champions of open government. Their efforts represent considerably more than “much ado about nothing.” And their achievements are anything but “stupid.”
Through their efforts and achievements, these individuals may one day succeed in convincing agencies like the Cabinet for Health and Family Services to abandon a “culture of secrecy” that – in 2016 — resulted in the imposition of hundreds of thousands of dollars in penalties, costs and attorneys’ fees. Perhaps the agencies will reconcile themselves to, and even embrace, the value of open government if that day comes.