“Much ado about nothing.” This is how the attorney for the Cabinet for Health and Family Services described the issue before the Oldham Circuit Court in the appeal of an open records decision issued earlier this year.
He was less grandiloquent in his description of the issue when we unexpectedly met outside the courthouse. Responding to his expression of surprise at my attendance, I explained that I thought the issue before the court was an important one. He replied, “it’s stupid.”
And so it remains. The Cabinet for Health and Family Services learned nothing from past mistakes which resulted in the imposition of penalties, attorneys’ fees and costs in excess of $1 million for willfully circumventing the open records law as well as a scathing rebuke from the Kentucky Court of Appeals. A culture of secrecy and an attitude of contempt, disdain and obstructionism toward the open records law persists.
What is the “stupid” issue about which “much ado” is being made?
It is the issue we discussed in an earlier post involving a legal challenge to an attorney general’s open records decision, 17-ORD-007. In that decision the attorney general deviated from the well-entrenched principle that an agency cannot place restrictions on the use of nonexempt public records when it discloses those records.
The requester, a public employee, asked for copies of statements written about her that resulted in a reprimand. The Cabinet released the records to the requester but admonished her that she “should not discuss it [sic] with anybody, in any form or fashion, outside of [her] supervisors.”
“It is difficult to conceive of a clearer, and more improper, restriction on secondary use of public records,” we wrote, than the cabinet’s admonition to the requester.
“It is even more difficult to conceive of a clearer, and more improper, assault on the public’s right to know,” we concluded, “than an attorney general’s open records decision that endorses agency action aimed at censoring the requester’s use of the open records disclosed to her.”
The July 21 hearing in the Oldham Circuit Court began with counsel for the requester’s cogent defense of his client’s, and any open records requester’s, right to use nonexempt public records for any purpose that is not prohibited by law. In support, he cited prior attorney general’s open records decisions that affirm that right by stating that nothing in the open records law “permits an agency to restrict a person to whom records have been released from reproducing those records or sharing them with others.” See, for example, 95-ORD-77.
Counsel for the cabinet credited the OAG staffer who wrote the decision with an examination of hundreds of open records decisions. How he made this assessment is unclear. What is clear is that if, in fact, the staffer examined hundreds of decisions, he missed the decisions that were directly on point.
In a remarkable display of obfuscation, counsel for the cabinet invoked the familiar words of the Bard of Avon, also characterizing the issue on appeal as little more than a matter of “academic” interest.
He constructed a strained argument based on the fact that the cabinet’s admonition on use of the records was issued when the records were disclosed to the requester and not as a condition of disclosure, waiving the banner of prior restraint. In addition, he strongly suggested that a public employee has fewer rights under the open records law than an ordinary citizen.
And of course there were the apologies — always the apologies for the cabinet’s poor choice of words, or, in other cases, delays in producing records, false denials about the existence of public records, etc.
He cited, or actually miscited, a case involving the Kentucky Lottery Corporation, which he identified as the Kentucky Retirement Systems, and a defamation claim failed by corporation employees when the corporation created defamatory records, placed them in a file in anticipation of an open records request and released them when it received the request.
And how is that case relevant? Talk about muddying the waters!
What is at stake? 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?
To paraphrase the Bard in a quotation from Hamlet, “[Counsel for the cabinet] doth protest too much, methinks.”