A state secret or a secret from the state: technology as an obstacle to the public’s right to know

COG LOGOEvents have rapidly unfolded since we first commented on a serious threat to open government in the state of Missouri. The threat is a notable one for Kentuckians because it could play out in our own backyard.

The Kansas City Star reported on December 7 that  Missouri’s governor – and his staff – had downloaded the app Confide to their personal cellphones. The app “deletes messages and prevents recipients from saving, forwarding, printing or taking screenshots of messages.” The app was likened to the Mission Impossible tape recorder that instantly burst into flames after delivering instructions to the agents during the opening of the sixties’ television series.

Within days of the report, there were calls for an investigation by the Missouri attorney general into possible violations of the state’s sunshine law and records management laws.

Subsequent  requests to the Missouri governor for records relating to the use of Confide in his office met with delay and evasion. When at last the governor’s office responded, his staff indirectly acknowledged use of the app but denied a request for documents showing the date on which the governor or his staff downloaded it or a similar app.

In support, the Missouri governor cited that state’s equivalent of Kentucky’s open records homeland security exception, prompting critics to declare that the requested information – namely, the date or dates on which the app was installed — “is not a state secret, [i]t’s a secret from the state.”

Under either states’ law, and on these facts, the invocation of statutes aimed a thwarting terrorism to support nondisclosure strains credulity.

The issue is now in the courts in a case alleging violation of the Missouri sunshine law.

Opponents of the governor’s use of Confide argue that the “use of automatic communications destroying software by elected officials and government employees is illegal and constitutes an ongoing conspiracy to violate” the state sunshine and records management laws, “not to mention a significant affront to the open government and democratic traditions of Missouri and the United States.”

Meanwhile, criticism has emerged concerning the governor’s use of his “personal” Facebook and Twitter accounts  to, for example, conduct a meeting from his office in the Capitol to discuss his tax cut plan with constituents.

In an about-face, the Missouri attorney general determined that the practice does not violate the state’s Sunshine Law absent evidence indicating that the account is being used to transact public business. This begs the question: just how narrowly does the attorney general define the term “public business?”

To his credit,  the Missouri attorney general has proposed changes to the state’s laws aimed at, among other things, assigning penalties for violation of records management and retention laws of up to a year in prison, up to a $2,000 fine or both.

His efforts coincide with a bill introduced in the current Missouri legislative session that prohibits the use of software like Confide that is designed to automatically delete messages and a bill that amends the definition of public record to include social media pages so that the information contained in such pages is subject to sunshine law requests and clarifies that electronic mail, text messaging, direct or private messaging through social media accounts or other applications or platforms are, under certain circumstances, public records and must be preserved for the purpose of sunshine law requests.

Why focus on threats to the public’s right to know in Missouri under that state’s sunshine law?

It is because the same threats confront Kentucky under our open records and records management laws.

These laws were last substantially amended in 1994. In that year, the General Assembly recognized “an essential relationship between the intent of [Chapter 61 of the Kentucky Revised Statutes, dealing with  open records] and [Chapter 171] dealing with the management of public records, . . .  and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes.”

The Kentucky Department for Libraries and Archives – which is responsible for implementing Chapter 171 by establishing retention schedules for records of all public agencies — has been proactive in capturing all records in the schedules, based on content rather than format or location, declaring that public officials and employees “are responsible for maintaining the integrity of records whether those records are stored electronically or in hard copy. Information must be accessible to the appropriate parties until all of the legal, fiscal, and administrative retention periods have been met, regardless of the medium.”

The Kentucky Attorney General has been anything but proactive, issuing open records decision in 2015 and again in 2016 ill-advisedly declaring that communications between public officials and employees concerning public business conducted on private devices are not public records.

In so doing, the Attorney General  “ignored the expansive definition of the term ‘public record’ and years of precedent that had guided the office’s interpretation of the law recognizing that  ‘[i]n the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.’” An analysis of those open records decision can be found here.

Given the dated language of our Open Records Law, and the Kentucky attorney general’s past failure to effectively apply the law to emerging technologies or to seize the initiative in proposing legislation to address the widening gap between technology and the law, Kentucky will soon – if it does not already — face similar challenges to those now confronting Missouri.

Unless the Attorney General is prepared to reverse his position on this and similar issues, or an appellate court points out the error in his analysis, legislative action — such as that proposed in the Bluegrass Institute’s report, “Shining the Light on Kentucky’s Sunshine Laws” — represents the best, and perhaps the only, solution.

–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.

News release: State House rejects attorney general’s ruling it violated open-meetings law, files suit against Bluegrass Institute

BIPPS Logo_pickCOG LOGOFor 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 abensenhaver@freedomkentucky.com or 502.330.1816 (cell).

Bluegrass Beacon: Stay the course despite the scandal

BluegrassBeaconLogoEditor’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. This column has been updated to reflect new developments since it was originally released to newspapers.

An initial statement by House Majority Leader Jonathan Shell, R-Lancaster, that then-Speaker Jeff Hoover, R-Jamestown, “has the full support” of the Republican caucus following claims of a sexual harassment settlement were as wrong as a preliminary police report that Sen. Rand Paul suffered only “minor injuries” when physically assaulted by a neighbor at his home in a gated community in Bowling Green.

It didn’t take long for the truth about the attack on Paul to come out; he suffered bruised lungs, several broken ribs and other damage – hardly “minor.”

It also didn’t take long for a group of conservative statehouse Republicans to dispute Shell’s claim about where the caucus stood regarding the sexual harassment settlement and ensuing cover-up involving Hoover and other GOP leaders.

“Contrary to what has been reported, the Representatives at issue did not have the ‘full’ support of the entire Republican caucus,” said an extraordinary statement issued by the gang of eight lawmakers the day after Shell’s statement, which no doubt helped seal Hoover’s resignation the following day.

Courier-Journal reporter Tom Loftus in assessing the fallout’s winners and losers rightly concludes that Shell’s statement was “not true, and a big mistake.”

But not everything coming out of Frankfort has been wrong.

On Wednesday, Nov. 1, the same day reports of the sexual harassment settlement broke, the attorney general’s office issued a spot-on decision in response to a Bluegrass Institute Center for Open Government complaint that a closed-door meeting of the House of Representatives on Aug. 29 violated the Open Meetings Act.

Hoover said he held the meeting behind closed doors to allow legislators “a more comfortable setting” in which to discuss a consultant’s controversial recommendations for addressing the commonwealth’s public-pension crisis.

But comfort and convenience cannot be determinants regarding whether laws – including those requiring transparency – are followed.

These laws recognize that citizens have as much right to witness the formation of policies – the discussion and debate that occurs during the legislative process – as knowing how their representatives ultimately voted on bills.

Allowing such private discussions to go unchallenged could encourage-the entire House to close its doors to any meeting involving politically difficult deliberations.

“After all, it’s just a caucus meeting,” political leaders could claim.

The Bluegrass Institute Center for Open Government asked for three reasonable actions by House leaders:

  • Acknowledge the statute was violated.
  • Release any written record or audio or video recording of the closed meeting.
  • Approve a resolution committing to future compliance with the Open Meetings Act.

Rather than do the right thing and acknowledge the statute was violated, the House appears to be doubling down and taking the matter to court.

However, not everything coming from House leadership has been wrong, either.

Several lawmakers have called for continued focus on solving Kentucky’s severe pension crisis.

Rep. Jerry Miller, R-Louisville, chairman of the State Government Committee, is urging members to not allow Hoover’s resignation and fallout to “distract us,” calling pension reform “the most important thing facing Kentucky from a fiscal-economic standpoint.”

Acting Speaker David Osborne, R-Louisville, said in a statement following a (legal) four-hour meeting of the GOP caucus that Republicans consider it “vital” that they both get the investigation of the scandal “right, and that we not lose sight of the policy problems facing our state as we do that.”

Some seem eager to use the scandal-plagued environment to avoid meaningful reform to Kentucky’s retirement systems, especially changes to the current structure of unsustainable benefits.

To say we can avoid a confrontation of our $65 billion pension crisis is not true and would, indeed, be a big mistake for this commonwealth and future generations of Kentuckians who would reap the consequences of such failure.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

UofL’s sloppy open meetings practices expose it to the risk of successful legal challenge by its former basketball coach (and others)

COG2The Courier Journal reports that Rick Pitino was “very humiliated, very hurt” by his treatment at a June 28 meeting of the University of Louisville Board of Trustees. In particular, he was wounded by comments made by Board Vice Chair John Schnatter who, according to the article, participated by video teleconference in a closed session of the board to discuss litigation and personnel matters.

Pitino should take comfort — admittedly modest in the grand scheme — in knowing that his accusers violated the law when they permitted a board member to participate by video teleconference in the closed session.

The fault lies not with Schnatter but with university attorneys, who should have alerted the board to this impropriety.

In September,  we reported on an illegal meeting involving Board Chairman David Grissom’s private phone calls to “every trustee to get their take on how best to respond to the recruiting scandal” during the course of which he obtained the trustees’ unanimous support for the president’s decision to suspend both Pitino and Tom Jurich. And in October we criticized a poorly reasoned open meetings decision issued by the attorney general resolving that disputed issue in favor of the university.

Our analysis of the erroneous open meetings decision can be found here.

That open meetings decision centered on a statute prohibiting nonpublic serial less than quorum meetings of public agency members. The issue is currently on appeal in the Jefferson Circuit Court where we hope the complainant will receive a favorable ruling that rejects the attorney general’s strained analysis and discourages statutorily prohibited secret serial meetings.

The June 28 violation centers on a separate statute  permitting a public agency to “conduct any meeting, other than a closed session, through video teleconference.” In other words, video teleconferenced open meetings are generally permitted but video teleconferenced close sessions are absolutely not.

Schnatter’s participation in the closed session by video teleconference was expressly prohibited by the Open Meetings Act. The board’s actions therefore violated the law.

Were he so inclined, Pitino might seek additional retribution against the university by pursuing a legal challenge to the Board of Trustees’ open meetings violations in the courts. Although courts lack authority to void actions – including firings — taken in violation of the statute prohibiting video teleconferenced closed sessions, they can void action taken in violation of the statute prohibiting serial less than quorum meetings. Pitino has two credible claims of violations of the Open Meetings Act.

In any case, the University of Louisville’s sloppy open meetings practices expose it to the risk of a successful legal challenge by its former basketball coach and others. This is a wholly unnecessary risk that it can ill afford to take.

In the media: Coverage of Bluegrass Institute’s open-meetings win

Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government, speaking tonight in E’town on Kentucky’s sunshine laws

BIPPS Logo_pickCOG LOGOCheck here for outstanding coverage by Lexington Herald-Leader reporter John Cheves regarding the Kentucky Attorney General Office’s decision to side with the Bluegrass Institute Center for Open Government’s claim that the House of Representatives cannot close its doors and hide behind claims that a secret discussion about pension reform is somehow justified because leaders called it a caucus meeting and because it would allow politicians to be more “comfortable” while discussing the biggest threat to the commonwealth’s economic stability.

Center director Amye Bensenhaver, a Bluegrass Institute Liberty Award winner, will speak on “Kentucky’s Sunshine Laws: What They Are and What They Should Be” at the Central Kentucky Tea Party meeting tonight at 7 pm at the Nolin RECC, 411 Ring Road in Elizabethtown.

Bensenhaver, who served as assistant attorney general for 25 years, wrote around 2,000 open records and open meetings opinions and is a foremost expert on Kentucky’s Sunshine Laws.

The public is invited. There is no charge.

News Release: AG supports Center for Open Government’s claim that House’s secret meeting violated Open Meetings Act

BIPPS Logo_pickCOG LOGOFor Immediate Release: November 6, 2017

(FRANKFORT, Ky.) — The Kentucky Office of the Attorney General in response to a complaint filed by the Bluegrass Institute Center for Open Government has ruled that the House of Representatives violated the Open Meetings Act when it met “with a quorum present” behind closed doors to discuss a consultant’s controversial recommendations for addressing the commonwealth’s public-pension crisis.

Former House Speaker Jeff Hoover argued in his response to the Center’s complaint that the gathering was not subject to the Open Meetings Act since it was held by the Majority Caucus but was also open to the Minority Caucus, and that both caucuses are exempt from the law.

Closed-caucus meetings are held in separate locations by the respective political parties’ legislators in the House and Senate during General Assembly sessions to choose leaders and plan the flow and strategy of legislation.

However, the Center for Open Government in its complaint noted the gathering was not a permissible closed-caucus meeting since a quorum of all House members were present.

“The presence of members of the minority party at a meeting of the Majority Caucus is factually antithetical to Speaker Hoover’s characterization of that meeting as a majority caucus meeting,” the complaint stated.

Center for Open Government Director Amye Bensenhaver praised the Attorney General’s office for its ruling.

“Our purpose in bringing this legal challenge was to ensure that House members were held to the same standard of accountability they have required of all other state and local agencies since the Open Meetings Law was passed,” Bensenhaver said. “The attorney general’s decision secures the public’s rights under the act and confirms that the act must be applied even-handedly to those at every level of government.”

The decision listed as 17-OMD-228 was written by Assistant Attorney General Matt James, who quotes from a previous decision involving similar complaints by noting the fact that state law differentiates between standing legislative committees and all other committees when it comes to open-meetings requirements.

In that decision, which involved a closed meeting by the House to consider health-care reform, the Attorney General’s office noted: “If the House of Representatives was, generally, excluded from the coverage of the Open Meetings act, then the law would not make a distinction as to what kinds of House Committees are excluded from the provisions of the Act.”

House leaders will have 30 days to appeal or discuss with the Bluegrass Institute Center for Open Government the following proposed remedies, including that the House leadership should:

• Acknowledge it violated the statute requiring the challenged meeting be open to the public.

• Release to the public any written record or audio or video recording of the closed meeting.

• Issue a resolution committing to future compliance with the requirements of the Open Meetings Act.
Hoover claims the meeting on Aug. 29 – the day following the release of PFM Consulting’s contentious recommendations calling for cutting retirees’ cost-of-living benefits and freezing benefits for current public workers and moving them into a 401(k)-style plan – allowed lawmakers to question the consultant and state budget Director John Chilton “without the media there and to make it a more comfortable setting for them to ask questions.”

“Comfort and convenience cannot be the determinants in whether transparency laws are followed,” Bluegrass Institute president and CEO Jim Waters said. “These laws exist to ensure that the formation of public policy – the discussion, debate and disagreement of proposed reforms – is just as much a part of the public’s business as the final vote tallies on bills.”

James also rejected Hoover’s claim that applying the Open Meetings Act to such gatherings “would violate separation of powers,” noting the legislature hasn’t exempted itself and has specifically directed the attorney general to issue decisions on these disputes.

Waters said the ruling rightly rejects claims the public can be denied access to this assembly involving an overwhelming quorum of the entire House of Representatives concerning the most significant threat to Kentucky’s future economic security and well-being “because this was just a big political caucus meeting.”

“To support such an approach would allow – perhaps even encourage – the entire House to close its doors to any meeting involving difficult discussions,” Waters said.

For more information, contact Amye Bensenhaver at abensenhaver@freedomkentucky.com or 502.330.1816 (cell).

Bluegrass Beacon: Legislators boost, judge busts liberty

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.


This edition of “Liberty Boosters and Busters” is brought to you by reasonable Kentuckians who reject racism, bigotry and censorship with every fiber of their freedom-loving beings.

Liberty Booster: The attorney general’s office decided in favor of the Bluegrass Institute Center for Open Government in its appeal challenging a Jefferson County school board meeting at a private law firm on the 28th floor of an office building in downtown Louisville on a Sunday afternoon in April.

Assistant Attorney General James Herrick ruled the meeting – held to discuss applicants for the district’s then-vacant interim superintendent’s position – violated the law requiring public agencies to conduct meetings “at specified times and places convenient to the public.”

It’s also likely the building was locked that day as it was on a subsequent Sunday when some of my colleagues at the institute tried to enter – an experience Herrick referenced in his ruling.

Liberty Buster: U.S. District Judge Danny Reeves allowed Eric Conn, the eastern Kentucky lawyer who pleaded guilty to engineering one of history’s largest Social Security fraud campaigns, to remain free on home incarceration – despite warnings against doing so by an FBI agent and witnesses claiming Conn had crossed 140 borders in eight years and had vowed to run before going to jail.

Conn ran, and likely is now sipping martinis and hanging out on the beach of some country with women for whom he previously claimed to have provided “English lessons,” and with whom the U.S. has no extradition treaty.

Yet Reeves, the judge, forced Sam Girod, an Amish farmer from rural Bath County, to remain in jail for months without bond while awaiting trial before handing him a harsh six-year prison sentence for the “crime” of mislabeling homemade herbal skin salves containing such dangerous (sarcasm dripping here) ingredients as chickweed and peppermint and not acquiescing to the Food and Drug Administration’s ideological thuggery.

Prosecutors, gung-ho though they were to destroy this man and ridicule his way of life, failed to produce a single victim harmed by Girod’s concoctions.

Yet Reeves permitted Conn, a wealthy white-collar criminal whose fraud resulted in 1,500 people losing their benefits and at least one person committing suicide, to remain out of jail.

He also handed a weak six-month sentence to Charlie Andrus, a former chief regional Social Security judge who pleaded guilty to conspiring with Conn to retaliate against the whistleblower in the campaign defrauding the program of $550 million.

Reeves in an unrelated case allowed a former University of Kentucky employee who swindled the school out of $200,000 to avoid prison altogether with a sentence of probation, calling it “sufficient punishment.”

Yet farmer Girod, who’s harmed no one and had no criminal record when his nightmare began, languishes in a Pennsylvania prison more than 400 miles away from his home.

An appeals-court reversal or presidential pardon would go a long way toward highlighting the insufficiency of this judge’s contemptible inconsistency.

Liberty Boosters: Gov. Bevin and Frankfort’s Republican legislative leaders for planning to tackle pension and tax reforms separately.

Claims that tax reform is critical to generating revenue wrongly blame Kentucky’s public pension woes on insufficient support from taxpayers or poor returns on investments or, at the very least, station the cart before the horse.

The retirement systems’ funding levels continue to fall even though the commonwealth’s current budget poured an additional $1.2 billion into them.

Also, investment returns for the past 30 years have, on average, exceeded more than 9 percent in the Kentucky Retirement Systems and 8 percent in the Teachers’ Retirement Systems.

At the core of the pension crisis is a structural weakness rather than lack of dollars.

Stop the digging by fixing the systems’ benefit structures.

Then, looking for more dirt to fill the hole becomes an exercise in productivity rather than futility.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Bluegrass Institute News Release: Center for Open Government scores victory in JCPS open meetings appeal


BIPPS LOGOFor Immediate Release: Wednesday, August 16, 2017COG2

(FRANKFORT, Ky.) — The Kentucky Attorney General has ruled in favor of the Bluegrass Institute and its Center for Open Government in an open meetings appeal involving the Jefferson County Board of Education.

Assistant Attorney General James Herrick in a decision released Monday agreed with the Bluegrass Institute that a meeting conducted by the JCPS board on Sunday, April 30, in private law offices on the 28th floor of a downtown Louisville building violated the legal requirement that public agencies conduct their meetings “at specified times and places convenient to the public.”

The meeting was held to discuss applicants for the school district’s then-vacant interim superintendent’s position.

Herrick rejected the district’s claim that the meeting site was chosen to avoid inconvenience to JCPS staff and “conserve the considerable costs associated with opening the VanHoose Education Center on a weekend.”

The VanHoose building at 3332 Newberg Road serves as the district’s central office where the board normally convenes.

Relying on past open meetings decisions, Herrick ruled that “[a] public meeting must be held in ‘a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

Based on previous decisions and “common experience as well as the specific experience of” Bluegrass Institute representatives who were unsuccessful in their attempts to gain entry to the 28th floor of the building at 500 West Jefferson Street on a subsequent Sunday afternoon, Herrick concluded that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

Center for Open Government Director Amye Bensenhaver praised not only the decision but Herrick’s reasoning.

“Our goal in bringing this appeal was to establish that meetings of public agencies must always be conducted at times and places convenient to the public – even if it causes inconvenience to the public agency,” Bensenhaver said. “Regardless of whether the agency believes the issue to be discussed worthy of public interest, it’s required to conduct meetings at locations from which no member of the public may feel excluded.”

It’s not as if a “suitable public building was unavailable,” Herrick wrote, noting the availability of appropriate meeting rooms at the district’s “approximately 174 schools” in addition to the VanHoose facility.

“With such a selection of locations available in public buildings, we cannot reasonably find it ‘convenient to the public’ to hold a public meeting in a private law office on the 28th floor of a privately-owned building, based solely on unspecified ‘costs’ of opening the VanHoose building on a Sunday,” he concluded.

Bensenhaver noted that past court rulings establish clearly that “an agency’s failure to comply with the strict letter of the law in conducting its meetings ‘violates the public good.’ We intend to hold public agencies to the strict letter of the open meetings law.”

If not appealed to circuit court within 30 days, an open meetings decision issued by the Kentucky attorney general has the force and effect of law.

For more information, please contact Amye Bensenhaver at abensenhaver@freedomkentucky.com or 502.330.1816.


Secret Ballots: The Ultimate Affront to Open Government

COG2There are few actions of public agency officials that more directly fly in the face of open government  than the use of the secret ballot. Surely, forty three years after the passage of the open meetings law agency officials no longer indulge the absurd belief that they are permitted to employ secret ballots in conducting the public’s business.

Not so.

In an open meetings decision issued last week, Assistant Attorney General James Herrick took the McLean County Joint Planning Commission to task for improperly conducting a secret ballot on a rezoning issue. The commission’s defense? The members “did not know or believe” that they were taking final action.

General Herrick rejected that defense in 17-OMD-151.

Relying on the unambiguous language of the open meetings law and opinions dating back to 1982, he determined that KRS 61.835, coupled with the law’s statement of legislative policy, prohibited the commission’s secret ballot vote if its intent was to take final  action on the rezoning issue. KRS 61.835 requires public agencies to promptly record “minutes of action taken at every meeting of any public agency, setting forth an accurate record of votes and action taken at such meeting,” and the statement of legislative policy declares that “[t]he formation of public policy is public business.”

In other words, the public is entitled to know who voted and how they voted.

If, on the other hand, the commission members “did not know or believe” that they were taking final action, General Herrick concluded, they nevertheless violated KRS 61.810(1) mandating that “[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed . . . shall be public meetings open to the public at all times.”

A secret vote by the members, he reasoned, “even if only a ‘straw vote’ to ascertain consensus, constitutes a communication about the public’s business and should not have been conducted in secret during an open session.” He relied on 01-OMD-110. In that open meetings decision the attorney general recognized that public officials “must avoid any whispered, inaudible or closed discussion of the public’s business” during open session. Such conduct derogates from the public’s absolute right “to observe with their eyes and ears what transpires at [public] meetings.”

This, along with Louisville Metro Government’s recent compulsory cancellation of the first meeting of a newly created solid waste board as a consequence of the board’s failure to comply with basic open meetings duties, confirms that many Kentucky officials are woefully ignorant or ill-informed when it comes to a law whose existence spans multiple decades.

It is useful to consider meaningful alternatives to the minimal open meetings training requirements currently imposed on some, but not all, public officials. Kentucky lags behind other states in recognizing that knowledge and understanding of the law promotes compliance with the law. One such alternative — utilizing a mandatory online training module for all public officials —  is advanced by the Bluegrass Institute in its 2017 report, “Shining the Light on Kentucky’s Sunshine Laws: A Proposal for Legislative Revision of the Open Meetings and Records Laws.”

It is also useful to remind public officials of the stirring words of the 1974 preamble to the open meetings law:

WHEREAS, it is the policy of the Commonwealth that the formation of public policy is public business and may not be conducted in secret; and WHEREAS, the legislature finds and declares that public agencies in this Commonwealth exist to aid in the conduct of the public’s business; and WHEREAS, the people of this Commonwealth do not yield their sovereignty to the agencies which serve them; the people, in delegating authority, do not give their public servants the right to decide what is good for them to know; the people insist on remaining informed so they may retain control over the instruments that they have created.

It was these words that prompted the Supreme Court to declare that “the right of the public to be informed transcends any loss of efficiency.”

Public officials whose actions are guided by these words avoid the imputation of wrongdoing under the open meetings law. Conversely, public officials who expend their energies in feigning ignorance of the law or seeking to evade its requirements, like the McLean County Joint Planning Commission members, risk not only the imputation of wrongdoing under the open meetings law, but an adverse ruling by the attorney general or the courts, and, perhaps, the imposition of monetary penalties.

Above all, they risk the well-deserved indignation of their constituents and equally well-deserved reputational damage to the agencies they serve.


Bluegrass Beacon: Holding public records hostage

Amye BensenhaverBy Amye Bensenhaver, Guest Columnist

Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

While employed as an instructor at the University of Kentucky’s School of Journalism, former hostage Terry Anderson recounted his five-year battle with federal agencies to obtain copies of public records under the Freedom of Information Act (FOIA) relating to the government’s efforts to secure his release from Hezbollah kidnappers during his nearly seven-year captivity.

Anderson described his bemusement when agency officials suggested he obtain signed releases from his former captors to expedite disclosure of the records he sought and protect his captors’ privacy. He shared his frustration when the records he received consisted almost entirely of newspaper articles and photos.

Although the content of the records ultimately disclosed to him was disappointing, Anderson’s protracted struggle illustrates, as the federal courts have observed, that “the value of information is partly a function of time.”

In the federal case recognizing this well-entrenched principle of records-access law, the U.S. Department of Justice postponed access to records requested under FOIA for up to 15 years.

The federal court decided that the delay was excessive, noting “Congress gave agencies 20 days, not years, to decide whether to comply with requests and notify the requesters.”

The court acknowledged that the Freedom of Information Act “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.”

In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden – real or imagined – and suggested that the agency present its concerns to Congress.

Kentucky’s public officials regularly complain about the three-day statutory deadline for responding to a request under the Open Records Act.

Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”

The Kentucky Attorney General’s office in a recently issued decision admonished Louisville Metro Government for failing to explain the reasons for a 45-day delay in producing records responsive to a series of broadly worded requests relating to a complaint of sexual harassment, hostile work environment and retaliation filed by a Louisville Zoo employee.

The attorney general found that the facts on appeal supported the delay in producing the records beyond the three-day statutory deadline based on proof that just one of the multiple requests involved more than 23,000 records.

Delays in producing public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level but are no less offensive to the principle that “the value of information is partly a function of time.”

Perhaps the solution to this and other problems lies in the statutory revision of the 40-year-old law.

Any such revision must be faithful to the law’s strongly worded statement of legislative policy favoring the public’s right to know but recognize the dramatic changes in the public-records landscape since the law’s enactment in 1976.

The newly created Bluegrass Institute Center for Open Government proposes revising the commonwealth’s open records and meetings laws in a new report, “Shining the Light on Kentucky Sunshine Laws.” We identify deficiencies in the laws exposed by successive legal challenges, suggest where revision is needed and make recommendations for change.

Our goal is to preserve what is best in the open meetings and records laws but encourage lawmakers to close loopholes in the laws that are frequently exploited by state and local agencies at the expense of the public’s right to know. Doing so will ease the burden on public agencies, reduce the likelihood of legal challenges, preserve administrative and judicial resources and, above all, promote the clearly stated policy of open, transparent and accountable government.

Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government at www.bipps.org. She wrote nearly 2,000 legal opinions regarding open records and meetings laws during a 25-year career as a Kentucky assistant attorney general. She can be reached at abensenhaver@freedomkentucky.com.