Read the report here.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Editor’s note: The Bluegrass Beacon is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.
“All I want for Christmas is for Republicans to act like Republicans,” I recently wrote on Facebook.
Responders aren’t optimistic.
“LOL Jim Waters … I’ll bet you still believe in Santa too!” wrote one friend who’s obviously frustrated with the current state of our political environment.
To avoid a completely empty stocking in case Republicans can’t stop the erosion of “Grand,” leaving them simply with an “Old Party,” I wonder if Santa could find me a major media organization without ideological bias and, worse, intellectual laziness when it comes to reporting on charter schools.
This request comes following publication of a recent Associated Press hit piece on charter schools dressed up as “analysis,” blaming these schools of choice for resegregating America’s public-education system simply because their student populations frequently reflect the high-minority, low-income makeup of the communities in which they’re located.
Nothing in the AP article reports how these schools offer solid evidence-based hope for closing achievement gaps between whites and blacks.
Not even a nod is given to how 95 percent of the 5,821 students attending Success Academy Charter Schools in New York were proficient in math and 84 percent were proficient in English during the 2016-17 school year even though 73 percent of those scholars came from poor homes.
There was no mention about these charter schools’ English Learner (ELL) and learning-disabled students not only surpassing other ELL and special-needs students across New York but also outperforming native English speakers and students without disabilities, respectively, across the Empire State.
Wouldn’t unbiased reporting note the growing academic-achievement gap between whites and blacks in the Jefferson County Public Schools – one of America’s largest districts – as a stark example of the reality that racial parity in the classroom doesn’t guarantee academic equality?
Wouldn’t fairness demand reporting about how assigning and then busing low-income minorities to schools in suburbia in the blessed name of “diversity” doesn’t work?
Bluegrass Institute research indicates that 14 of the district’s 19 elementary schools with white-black proficiency gaps of 30 points or more are in the suburbs east of Interstate 65.
Such exclusions don’t escape the attention of New York Magazine writer Jonathan Chait, who responded to the AP’s analysis with an article entitled: “Charters Didn’t Cause Segregation. They’re a Solution for Its Victims.”
Chait may be over-the-top in claiming that the “deep cause of segregation is residential living patterns driven by decades of racist housing policy.”
What cannot be disputed, however, is his assertion that charter schools fill with poor, minority students because they most often open in urban-area neighborhoods reflecting those same demographics.
Also indisputable is Chait’s observation that without the opportunity for charter schools, “the schools those children would otherwise be attending are also segregated.”
His conclusion offers a much-needed reality check for anti-school choice ideologues who would sacrifice important opportunities for this generation on the holy grail of some future generation’s altar of desegregation.
Minority children living in low-income zip codes shouldn’t be relegated to a poor education just because nobody’s “formulated a plan to achieve large-scale school integration that stands any practical chance of success during the lifetime of today’s students,” he writes.
While working for desegregation is always noble and necessary, Chait urges “it cannot be the only mechanism to allay the appalling lack of educational opportunity given to children in segregated neighborhoods.”
As charter schools become available in Kentucky, parents should ignore the insidiousness of the AP’s shoddy “analysis” and instead snatch today’s opportunity to give their children for whom the clock is ticking the best education possible.
What better way to break chains of segregation and poverty than by giving children trapped in them the kind of education that allows them to build or buy a house in whatever neighborhood they choose?
Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Reach him at firstname.lastname@example.org and @bipps on Twitter.
The program begins with the commission of a crime, continues with the investigation—often accompanied by strategic legal maneuvering—and reaches its climax in a dramatic courtroom scene where justice prevails in the conviction of the guilty and the exoneration of the innocent.
Since the early days of television, the plots have become more complex, exposing weaknesses in our judicial system as well as the legal and moral ambiguities that lawyers and their clients confront.
No courtroom drama can, however, capture the glacial pace with which most legal actions proceed. In general, such actions linger in the courts for years.
It is, perhaps, for this reason that the architects of Kentucky’s Open Meetings and Open Records Acts established a statutory mechanism for speedy resolution of disputes concerning the public’s right of access to meetings and records of the agencies which serve the public.
As we have noted in the past, sunshine laws like our own are premised on the recognition that “the value of information is partly a function of time.” When the Kentucky attorney general commits to compliance with the statutory deadlines for issuing open meetings and open records decisions, as has the current office holder since September 2016, an open meetings appeal to his office must be resolved within 10 business days and an open records appeal to his office must be resolved within 20 to 50 business days.
This discrepancy exists because the Open Meetings Act establishes a fixed 10 day deadline with no statutory mechanism for extending that deadline. The Open Records Act, on the other hand, authorizes the attorney general to extend his 20 day deadline under statutorily defined “unusual circumstances”—for example, “the need to obtain additional documentation from the agency or a copy of the records involved.”
It is, by the way, the latter clearly established right that has given rise to litigation between the state’s universities and their own student newspapers that is slowly making its way through the courts. To his credit, the attorney general has intervened in those cases to defend this absolutely essential tool for resolving open records disputes presented to his office that he is guaranteed in statute, in regulation, and in caselaw.
Whether 10 days or 50 days, Kentucky’s laws guarantee resolution of most open meetings and open records disputes in a matter of days, rather than months or years, by means of an appeal to the attorney general—a simple and user friendly process–that is unparalleled in other states and unheard of at the federal level.
Importantly, the decisions his office issues—if not appealed to circuit court within 30 days of issuance—have “the force and effect of law,” and therefore bind the parties, in both open meetings and open records disputes. This generally permits the public to pursue a legal challenge without incurring court costs and attorneys’ fees, preserves judicial resources, and promotes agency compliance with the laws.
Moreover, the attorney general’s analysis in open meetings or records appeals is—more often than not—well reasoned, well written and supported by legal authority. On past occasions when the attorney general refused to listen to the career open meetings and open records specialists on his staff, his open meetings and open records decisions have been spectacularly wrong. But these decisions are the exception rather than the rule—especially since the current attorney general awoke to the importance of his role in September 2016. He is usually right and caselaw construing the Open Meetings and Open Records Acts confirms this.
If either of the parties to an open meetings or open records appeal is dissatisfied with the attorney general’s decision, that party can challenge the decision in circuit court. Given their limited financial resources, media representatives and members of the public initiate these judicial challenges selectively and with an eye to meaningfully advancing the public’s right to know.
Public agencies, on the other hand, have deeper pockets and are therefore inclined to challenge an attorney general’s open meetings or open records decision for any number of reasons: embarrassment based on a finding that their actions violated the laws; arrogance based on a belief that their legal advisors cannot be wrong; obstructionism aimed at prolonging the legal proceedings until the issues presented are no longer relevant; and—most ominously—a desire to bully and intimidate the media or public and thereby discourage future legal challenges.
The only legitimate rationale supporting a judicial appeal of an attorney general’s open meetings or open records appeal is a good faith belief that the attorney general erred in his interpretation of the law and that a genuine issue of law exists that is appropriate for review by the courts.
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 issue presented in the appeal is an important one: whether a quorum of the members of the House of Representatives can conduct secret discussions of issues of great public importance—in this case pension reform—through the simple expedient of declaring the meetings Majority Caucus meetings which the Minority Caucus is permitted to attend. Unless the attorney general’s open meetings decision is affirmed by the courts, future legislative abuses of the Open Meetings Act may well occur.
The Bluegrass Institute Center for Open Government will vigorously defend the attorney general’s decision to ensure that the public’s right of access to legislative discussion and debate is not abridged through what is likely to be a protracted legal process. The dispute will not be resolved in a one hour courtroom drama or in 10 business days–as contemplated by the statute and as we had hoped–but we will fight this legal battle to its conclusion however long it may take.
News release: State House rejects attorney general’s ruling it violated open-meetings law, files suit against Bluegrass Institute
For Immediate Release: December 26, 2017
(FRANKFORT, Ky.) — The Kentucky House of Representatives has opted to waste more taxpayer money by filing a lawsuit against the Bluegrass Institute, Kentucky’s free-market think tank, rather than acknowledge it violated the Commonwealth’s Open Meetings Act when it gathered behind closed doors last summer to discuss pension reform.
Today, attorney William Sharp of the Louisville firm Blackburn, Domene and Burchett, PLLC, and co-counsel Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government, filed an answer to the House’s complaint in Franklin Circuit Court and initiated the formal discovery process by asking for records related to the Aug. 29 closed-door meeting, including written and audio records as well as any electronic or printed materials made available to that meeting’s attendees.
Legislators conducted the closed meeting one day after the release of a report by PFM Consulting offering controversial recommendations for reforming Kentucky’s ailing public-retirement systems.
House leaders filed the lawsuit against the Bluegrass Institute following the Kentucky Attorney General’s ruling supporting the Center for Open Government’s claims that none of the reasons offered by then-Speaker Jeff Hoover for preventing the public from attending justifies allowing public agencies to hold a closed meeting of a quorum of their members.
“While we were hopeful that the House would simply accept that it violated the Open Meetings Act, it, unfortunately, decided to waste more taxpayer money by suing the Bluegrass Institute in an attempt to justify excluding the public from its meetings,” Bensenhaver said. “That is precisely what the Open Meetings Act was designed to prevent, and we look forward to vigorously defending the public’s right to be present for such meetings.”
Bluegrass Institute president and CEO Jim Waters said elected officials have no right to shut the people out of such discussions, even those involving politically difficult policies.
“Allowing this illegal closed-door meeting behind which the greatest threat to Kentucky’s economy was discussed to go unchallenged would establish a precedent of conducting the public’s business – including politically thorny and inconvenient issues – out of the purview of that very same public,” Bluegrass Institute president and CEO Jim Waters said. “Such meetings are not in citizens’ best interests and certainly don’t foster open, accountable and accessible government.”
For more information, contact Amye Bensenhaver at email@example.com or 502.330.1816 (cell).