The “cost” of access: when agencies frustrate the public’s right to know by charging excessive fees

COG2The News-Democrat & Leader reports that the attorney general last week ruled against the Logan County jailer in an open records dispute involving a magistrate’s request for jail commissary records.

What was the issue that compelled a county magistrate to appeal the county jailer’s handling of the magistrate’s records request?

The issue addressed by the attorney general in 17-ORD-244 was whether the jailer subverted the intent of the Open Records Act in imposing copying fees in excess of $4,500 for records responsive to the magistrate’s request. Leaving aside the issue of whether the jailer legitimately located  over 31,600 responsive records — or simply sandbagged the magistrate with non-responsive records — he assessed nearly $1,500 of the copying fee for “deputy overtime hours and benefits” associated with retrieving, reviewing, redacting and reproducing the records.

In the wake of an audit critical of the jail’s record keeping, Magistrate Dickie Carter submitted a request to Jailer Phil Gregory on September 11 for a “list of all checks and deposits written, date, amount, who to and what for” relating to the commissary for the past two years.

Carter indicated that he wished to be notified if the cost of reproducing responsive records would exceed $20, but asked that the jailer waive the copying fee since “disclosure of the requested information is in the public interest and will contribute significantly to the public’s understanding of [how] the commissary account is benefitting the inmates.”

His request was not out of line since KRS 61.878(5) encourages public officials and agencies to share public records “when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.”

And although Gregory was not required to honor Carter’s request for a fee waiver, he was required to calculate the copying fee based on statutorily established factors that expressly exclude staff time.

I don’t know, and frankly don’t care, whether there is “bad blood” between these county officials. Nothing is — or at least should be — less relevant to an open records exchange than state or local politics and political bickering.

What I do know is that, by its express terms, the Open Records Act  prohibits public agencies from attempting to recover staff costs for reproducing public records that are responsive to an open records request. The Act permits agencies to “prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required.”

Gregory has held office since 2014. Perhaps he should have familiarized himself with his statutorily assigned duties under the Open Records Act instead of bemoaning the “enormous hardship” to his staff in discharging these duties.

And, if he genuinely believed that Carter’s request was a “personal vendetta” and a “political attack,”  he should have consulted with legal counsel when he received the request to determine if he could successfully deny the request as unreasonably burdensome or intended to disrupt his agency’s essential functions. At a bare minimum, he should have consulted with counsel — or reviewed the Open Records Act — to determine how to properly calculate copying fees.

Jailer Gregory is certainly free to consult with legal counsel now for the purpose of weighing his appeal options, but this much I can assure him, “the opinion of the Attorney General’s Office is accurate on this issue.” Any attempt to recover staff costs for copying public records is prohibited by statute and therefore futile.

The Open Records Act is clear on this point. Nevertheless, excessive copying fees are a recurring issue in open records disputes. Anticipating this likelihood, the General Assembly included a provision authorizing attorney general review of disputes involving the imposition of excessive fees to refute agency claims that the fee issue was mooted by disclosure of the requested records.

In addition to reviewing appeals based on denials of open records requests, the attorney general is empowered to review open records disputes “[i]f a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees. . . .” The dispute is “subject to the same adjudicatory process as if the record had been denied.”

Public records belong to the public.

Public agencies that persist in imposing excessive copying fees in order to dissuade the public from submitting requests, or in order to generate additional revenue for their agencies, or because they don’t like the requester, invite successful legal challenges like 17-ORD-244. The courts and the attorney general ”have struck a reasonable balance between the agency’s right to recover its actual costs, excluding staff costs, and the public’s right of access to copies of records at a non-prohibitive charge.”

Public officials should be guided by this principle rather than by frustration, greed, or personal hostility.

 

 

 

BROKEN PROMISE? Common Core tests were supposed to usher in a new era of comparing America’s schools

Back in 2010 one of the major reasons we heard for adopting the Common Core State Standards was that the results from new Common Core-aligned tests would be comparable across states.

It’s now 2017, and as Chalkbeat points out, this is yet another promise from the education community that hasn’t been kept.

Kentucky, of course, uses its own, self-created Common Core-aligned Kentucky Performance Rating for Educational Progress (KPREP) tests, which don’t compare to tests used in any other state.

But, even for those states that joined one of the two Common Core test consortia and are nominally using the same tests, Chalkbeat’s article points out that no one is calling the results comparable.

It makes you wonder if the underlying education in each state is even close to comparable.

Which brings up another problem.

We normally could answer that question about cross-state education performance with results from the National Assessment of Educational Progress (NAEP). However, there was a change in the way this federal test was administered in 2017. Right now, we won’t see the 2017 NAEP results for several more months, at least. Even then, it is possible the 2017 results might have problems because of those changes in administration procedures. So, even the NAEP might not be useful to analyze the Common Core and cross-state education performance as of 2017.

In any event, right now, that Common Core promise about comparing cross-state testing remains unfulfilled. With seven years under its belt since enactment, that doesn’t speak well for Common Core.

“Preliminary” pension reports and perennial problems with public access

COG2In one of the earliest legal challenges to Kentucky’s Open Records Law, the City of Louisville objected to disclosure of its internal affairs unit’s investigative files involving allegations of police misconduct. The city’s objections were based on the exceptions to the Open Records Law that permit nondisclosure of  “[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency” and  “[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.”

The court recognized the public’s right of access to the complaints that spawned the investigations, as well as the final action taken on the complaints, but affirmed the city’s denial of access to the underlying investigative files because internal affairs was not authorized to take final action against the police officers. Only if the chief of police, “who alone determines what final action is to be taken” adopted the information in the files “as part of his final action,” the court concluded, did the files lose their “preliminary characterization” and become publicly accessible.

Through the years, this analysis of the frequently invoked “preliminary documents” exceptions has created one of the greatest impediments to the public’s right to know.

The policy supporting these exceptions is a sound one: to protect the integrity of the agency’s internal decision-making process by encouraging the free exchange of opinions and recommendations while the process proceeds. But these exceptions, found at KRS 61.878(1)(i) and (j), are often cited to shield from public inspection all pre-decisional records until final action is taken — or a decision is made to take no action — and thereafter unless the records are adopted as part of that final action or decision not to act.

Not all “pre-decisional” records are — as the exceptions expressly require — drafts, notes, or correspondence with private individuals or preliminary recommendations or memoranda in which opinions are expressed and policies formulated.

By virtue of a loose construction of the exceptions, and despite the legislative declaration that all exceptions must be “strictly construed,”  the courts have declared — in the most recent case analyzing the exceptions — that “piecemeal disclosure along the path of the decision-making process is not mandatory.”  This is true regardless of whether the disputed records consist of drafts, notes, preliminary recommendations, etc. and regardless of the fact that agencies are statutorily obligated to separate excepted from non-excepted materials and make the non-excepted materials available for public inspection even in the midst of the decision-making process. Given the wealth of information these records contain in enabling the public to understand the process – what was considered and how officials hammered out their differences in arriving at final action – this is unfortunate.

It is especially unfortunate when a record that is generated after official action is taken is characterized as “preliminary.”

This occurred on November 13 when the Kentucky Retirement Systems Board of Trustees declined to discuss – much less release – a report “on how much [a] proposed pension reform bill would cost taxpayers and how much it would impact pension plans within the [KRS]” prepared by its consultant, GRS Consulting.

While it does not appear that all trustees agreed on the preliminary nature of the report, and the length of time the report would be withheld, trustee and state budget director John Chilton deemed the report “preliminary” because the previously released 505 page pension reform bill that codifies the publicly announced pension reform plan is not “[t]he final bill . . . It’s part of the legislative process. It’s information that’s preliminary. It’s not a final bill.”

Chilton suggested that the report would only be released “whenever the legislature decides to file” a final bill.

But the consultant’s report does not analyze the “final bill.” The final bill exists only in the abstract. It is disturbing to think that the public might be deprived of all reports, analyses, and other records relating to the pension until a final bill is filed on the pretext that everything that proceeds it is “preliminary.”

The consultant’s report which Chilton characterizes as “preliminary” examines the cost and impact of the administration’s pension plan. Although that plan is subject to legislative revision, it is final as to the administration. The report analyzing it is a post-decisional – not a pre-decisional – record that is in no way preliminary as described in KRS 61.878(1)(j).

The argument that it is “clearly marked as a draft” is a non-starter. Merely stamping a record “confidential” or “draft” has no legal impact. In several cases, the attorney general has recognized that “placing a notation such as “draft” or “confidential” on a public record does not restrict the public’s right of access to the record unless the notation is supported by an applicable statutory exemption.” Any other view would promote abuse of KRS 61.878(1)(i) through the simple expedient of marking a nonexempt record “confidential” or “draft.”

Kentucky’s sunshine laws are premised on the legislative recognition that “the people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.”

KRS’s refusal to release a report, prepared at the people’s expense, that alerts the people to the shared cost and impact of the administration’s plan for pension reform is – at best – legally problematic. It is – at worst – an improper attempt to usurp the people’s right to “remain[ ] informed so they may retain control over the instruments they have created.”

 

Opening closed doors: why we appealed the House’s illegal meeting

As details began to emerge one week agoCOG2 that would rock the General Assembly, the Bluegrass Institute Center for Open Government celebrated a victory in its ongoing transparency initiative. We were also pointedly reminded of the importance of accountability at all levels of governmen

Shortly after learning about the decision of the House of Representatives to conduct a closed meeting to discuss pension reform, we expressed our opposition. We argued that “the open meetings act must be applied even handedly to those at the highest level of government who enacted it as well as to those for whom it was otherwise enacted,” and asked what message the House of Representatives sends to public agencies across the state “if it does not practice what it preaches?”

On August 29, the full House convened in closed session under the guise of a meeting of the majority caucus to which the minority caucus was invited. Only one member, Representative Jim Wayne, D-Louisville, objected to the closed meeting and refused to attend.

One week later, the Bluegrass Institute Center for Open Government submitted an open meetings  complaint to the House’s presiding officer, Speaker Jeff Hoover, as required for any such legal challenge by KRS 61.846(1). The words of the preamble to the Open Meetings Act drove our decision to appeal. “The people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.”

We alleged that the closed meeting “constituted a violation of KRS 61.810(1) which states that ‘[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times’ unless the public business to be discussed falls within one or more of the 13 exceptions recognized by the General Assembly and enacted into law. There is no specific exception to the open meetings act for discussion of pension reform. Nor is there a general exception to the open meetings act under which discussion of pension reform falls.”

As a means of remedying this violation, we proposed that that the House of Representatives acknowledge that it violated KRS 61.810(1) in conducting a closed meeting of a quorum of its members at which public business was discussed; that the House provide the public with a copy of any written record or audio or video recording of the closed session; and that the House issue a resolution committing to future compliance with the requirements of the open meetings law.

In support, we cited a 1993 open meetings decision — that arose under nearly identical facts — in which the attorney general rejected the House’s defense that a closed meeting to discuss health care reform was a majority caucus meeting to which the minority caucus was invited.

The attorney general recognized that a caucus is “’a conference of party or organization leaders (as in legislators) to decide on policies, plans, appointees and candidates; a local or regional meeting of party members to choose candidates or delegates.’” On this basis he concluded that “perhaps the meeting was originally intended to be some kind of caucus meeting but at least one of the [complainants] maintains that every member of the House was invited to attend the meeting regardless of party affiliation. This office does not know who specifically attended the meeting but if invitations were extended to all members, regardless of party affiliation, then, by definition, the meeting was not a caucus meeting.”

The House rejected our argument that the 1993 decision was legally controlling, asserting that in succeeding years majority and minority caucuses were established as “committees of the General Assembly other than standing committees” that are authorized by KRS 61.810(1)(i) to conduct their meetings in closed session.

But the House’s argument was not sufficient to overcome the obvious fact —  recognized by the attorney general in 1993 and again in 2017 – that a meeting attended by all members of the House, regardless of party affiliation, is not a caucus meeting.

This legal reasoning in 17-OMD-228 is solid, and although the House has until the end of November to appeal the decision to circuit court, we trust that it will choose its legal battles wisely –  in light of the morass in which it now finds itself.

Further, we trust that the House will not take measures to limit the application of the Open Meetings Act to itself as it did in 2003 when it limited the application of the Open Records Act to itself. In KRS 7.119 the General Assembly divested the attorney general of his role in adjudicating disputes that arise from its denial of an open records request, compelling persons aggrieved by such a denial to hire attorneys and incur costs and fees to appeal to circuit court for resolution.

Especially when viewed in light of the past week’s events, the House’s attempt to evade the Open Meetings Act that it originally enacted for all public agencies — including itself — reminds us that it “is neither an ideal nor a suggestion. It is the law.” Public agencies must strictly adhere to the letter of the law “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.”

 

Do parents really care about Kentucky’s school councils?

A major goal of the Kentucky Education Reform Act of 1990 (KERA) was getting parents more involved in their children’s schools. Towards that end, KERA required that virtually all regular schools in Kentucky had to install School-Based Decision-Making Councils (often referred to as SBDMs) no later than December 1996. These councils would take on major responsibilities for such things as curriculum development, staff selection and final allocation of finances that formerly were local school board prerogatives. Parents, elected by parents in the school, would fill some SBDM positions.

Kentucky’s SBDM governance scheme certainly created a major shift in power, but there was a catch – while parents would have a voice on the SBDMs, teachers alone would have the controlling votes. KERA stipulated that each SBDM would have a membership ratio of three teachers to two parents. Because a majority vote rules in SBDMs, this ensured real control over the schools would be in the hands of teachers, not parents. Still, it was hoped that parents would like the idea of having some voice on the SBDMs and get more involved.

In any event, as is true with many education fad ideas, the goal with SBDMs was noble, but after more than two decades of school council operations in Kentucky, reality is catching up. For a lot of reasons, questions about the efficacy of Kentucky’s SBDM system have bubbled up recently (you can read about some of those issues here, here, here, here, here, here, and here).

Given the original goal of increasing parent involvement in schools, I thought it would be interesting to examine some data in the Kentucky School Report Cards “Data Sets” section to get a feel for how well parents really participate in one of the SBDMs’ most important activities – the election of the parent representatives.

What I found is disturbing.

When I looked at the Kentucky Department of Education’s data for the 2016-17 school year, I found a total of 1,124 schools had data listed for both school student membership (often called enrollment by the general public) and the number of parents who voted for the SBDM parent representatives. If parents are participating enthusiastically, you would expect those numbers to agree fairly well.

To investigate that the level of agreement, I calculated the number of parent voters as a percentage of student enrollment in each school.

For example, the department’s data shows in the Hazel Green Elementary School the student membership in 2016-17 was 314 and the number of parents voting in the SBDM election was 280. That works out to a voter to student membership figure of 89.2 percent, which is really good.

However, there weren’t many cases like Hazel Green. Only 15 schools out of the 1,124 schools with data had an SBDM voter to student membership ratio of at least 50 percent. Still worse, 818 schools – 72.8 percent of all the schools – had only single-digit ratios of parents voting in the SBDM election compared to the total student enrollment – that’s all (You can check out this Excel spreadsheet covering all the schools to see more)!

This little study provides disturbing evidence that in the typical school in Kentucky the vast majority of parents don’t get involved with SBDMs very much. When almost three out of four schools have single-digit ratios of parent SBDM voting numbers compared to student enrollment, I submit that if a key purpose of SBDMs is to generate parent interest, then this school management model has failed very badly to attain that goal.

To be fair, there are limitations to this simple analysis.

For one thing, student enrollment is not equal to the total number of parents in the school. Some students still come from two-parent families (both parents can vote for the SBDM representatives in this case) and in some cases a family may have more than one child registered in a school. So, it would be unreasonable to expect really high agreement in the SBDM voter and student membership numbers.

There are also concerns about the general accuracy of the Kentucky Department of Education’s data. The numbers are self-reported by the schools. While I would expect the membership data to be fairly accurate, the parent vote data isn’t being audited and could have notable errors for some schools.

Still, the numbers in my spreadsheet look highly problematic. Simply put, the numbers in most schools are just way too low. When only about one in ten students or even less is represented in the vast majority of SBDM parent member elections, parent interest in SBDM activities in the vast majority of Kentucky’s schools is obviously problematic.

[Read more…]

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.

Basking in the sunlight of last week’s open records and open meetings victories

COG2Few weeks have rivaled the week of October 30 to November 3 for reaffirming the principles of open government. A description of the week’s events follows.

On October 30, the attorney general ruled that the Cabinet for Health and Family Services violated the Open Records Act in denying the State Journal’s request for records relating to the “state’s involvement with Jaxton and Kirsten Dean.” Earlier this year, the State Journal reported that two year old Jaxton and his mother, Kirsten, had died in an apparent murder suicide.

The Cabinet acknowledged the existence of a past as well as a pending investigation, but denied the newspaper’s request based on KRS 61.878(1)(h), an exception that is often invoked while an investigation is proceeding.

But in a 2013 opinion, the Supreme Court established that the exception is “appropriately invoked” only “when the agency can articulate a factual basis for applying it, only, that is, when, because of the record’s content, its release poses a concrete risk of harm to the agency in the prospective action.”

The attorney general’s management team was slow to accept the Court’s opinion, to the great frustration of his open records/meetings staff, and in a series of open records decisions  went to great lengths to affirm agency denial of access to records in open investigative files.

17-ORD-224 signals — once and for all we hope — the end of this strained attempt to shield investigative records from public inspection. The attorney general properly determined that the Cabinet violated the Open Records Act in withholding investigative records relating to Jaxton and Kirsten Dean without showing how release of the records “poses a concrete risk of harm to the agency in “a prospective action.” The law is clear on this point, and past open records decisions should no longer muddy these waters.

On November 1, the Franklin Circuit Court rejected –  for largely the same reasons —  the Kentucky State Police’s reliance on KRS 61.878(1)(h) to deny an open records request for records relating to a 22 year old criminal case. In Sarah Teague v. Kentucky State Police, the court identified the “potential harms articulated by KSP” which included release of “heretofore undisclosed investigative details [that might] tip off individuals involved in the crime,” “bias a potential jury pool,” or “adversely color witness recollections of the events.”

Characterizing these concerns as “vague, speculative, and extremely remote,” the court concluded that the requester, the mother of the victim in the unsolved case, was entitled to copies of 911 tapes which, strangely enough, KSP had previously permitted her to hear.

The importance of the Supreme Court’s 2013 opinion as an antidote to secret investigative activity cannot be overstated.

On November 2, the attorney general held that the Kentucky Board of Medical Licensure improperly denied a request for the recording of a disciplinary hearing involving an impaired physician and conducted under Chapter 13B of the Kentucky Revised Statutes.

KRS 13B.080(8) expressly provides that such disciplinary hearings “shall be open to the public unless specifically closed pursuant to a provision of law.” Moreover, KRS 13B.090(6) entitles  “[a]ny person, upon request, [to] receive a copy of the recording or a copy of the transcript, if the hearing has been transcribed, at the discretion of the agency, unless the hearing is closed by law.”

The board maintained that the entire recording of the hearing was shielded from public inspection by an order sealing the record. No specific legal authority, state or federal, was cited in support of the order and no evidence was presented that the hearing was “closed by law.”

On this basis — and consistent with the unambiguous language found in Chapter 13B – the attorney general concluded in 17-ORD-231 that the Board of Medical Licensure improperly denied the requester access to the recording.

Also on November 2, the Kentucky Supreme Court confirmed 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 — that had evaded scrutiny since 2011.

In Utility Management Group, LLC v. Pike County Fiscal Court, the Court determined that the company, UMG, was a public agency as defined in KRS 61.870(1)(h) – the “25% rule”– when, in 2011, the Pike County Fiscal Court requested access to its business records.

UMG had denied the fiscal court’s request, asserting that it was not a public agency for open records purposes. On appeal, the attorney general rejected UMG’s position and determined that because it derived more than 25% of its funding from local authority funds, it must disclose the requested records.

As the case proceeded through the courts, opponents of the 25% rule succeeded in convincing the General Assembly to narrow its application by excluding from the 25% calculation public funds derived under competitively bid contracts. This, conveniently, included UMG. The issue for the courts, thereafter, became one of retroactive application of the amended statute to prohibit access to UMG’s business records notwithstanding the fact that it was a public agency at the time the request was made.

The Court rejected UMG’s retroactive application argument and concluded that the public must be afforded access to the business records requested in 2011.

Serious problems persist with KRS 61.870(1)(h) as a consequence of the ill-advised 2012  amendment to the statute. But for now, open government advocates can bask in the sunlight of this and the others victories recounted above.

Each of these victories merits its own blog. And — with the exception of the last — the Bluegrass Institute Center for Open Government played a direct or indirect role in each by assisting the requesters in the development of arguments and the drafting of records request, letters of appeal, and briefs to the court.

But it was the Bluegrass Institute Center for Open Government itself that filed an open meetings appeal and secured another significant victory for open government last week. On November 1, the attorney general issued 17-OMD-228 declaring that the Kentucky House of Representatives violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members in late August to discuss pension reform. An analysis of our victory in that appeal will be the subject of a future blog.

For now it’s safe to say that it doesn’t get any better for access advocates than the week of October 30 to November 3.

 

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 Institute Center for Open Government files amicus brief in Supreme Court case

COG2Does the public have a right to know how the Department of Revenue interprets Kentucky’s tax laws in recurring disputes that affect taxpayers?

On October 30, 2017, the Bluegrass Institute Center for Open Government filed an amicus curiae, or friend of the court, brief in which it urged the Kentucky Supreme Court to affirm a Court of Appeals’ opinion recognizing that right. It is the first amicus brief filed by the Center for Open Government since the Center was created earlier this year.

The Bluegrass Institute Center for Open Government is not a party to the case, Finance and Administration Cabinet, Department of Revenue v. Mark F. Sommer and Tax Analysts, but filed the brief “because it has an immediate and direct interest in ensuring that interpretation of the Open Records Law, the issue that lies at the heart of this appeal, continues to reflect the legislatively and judicially recognized presumption of openness for the public good.”

The purpose of the brief is to assist the Court in better understanding the broad importance of the legal issues presented.

The case involves an open records request submitted to the Finance and Administration Cabinet and Department of Revenue in 2012 for copies of unappealed “final rulings” in tax protests brought under KRS 131.110. Revenue issues these final rulings when the disputed tax issues cannot be resolved through the KRS 131.110 process. It has consistently denied the public access to the rulings based on taxpayer privacy and, in this case, the assertion that redaction of personal information from the rulings would impose an unreasonable burden.

The Court of Appeals determined that production of the unappealed final rulings “is not prohibited by any provision of law.” “Quite the contrary,” the court reasoned, as long as the rulings are “suitably redacted by the Department of Revenue to protect taxpayer privacy,” production “is required by our Open Records Act.”

“[T]he substantive portions of final rulings,” the court observed, “contain a wealth of information relative to the implementation of our tax laws” to which the public has been denied access under Revenue’s “unreasonably and overly broad view of KRS 131.190(1)(a) and KRS 131.081(15).” The court rejected Revenue’s claims and concluded that “great bodies of information related to the reasoning and analysis of the Department of Revenue with respect to its task in administration of our tax laws . . . can indeed be made public without jeopardizing the privacy interests of individual taxpayers.”

In its brief to the Supreme Court, the Center for Open Government focused on Revenue’s argument that “the specter of ‘suitable redaction’ is a red herring because the ORA redaction requirement only applies to records actually subject to the ORA,” an argument that is premised on the erroneous belief that an agency record containing both excepted and nonexcepted information is not a public record.

Such a record, we noted, “is no less a public record for purposes of open records analysis, and public agencies are statutorily mandated to respond to a request for such a record by separating he excepted and making the nonexcepted material available for examination.” We emphasized the grave threat to public access that Revenue’s argument for ”a wholesale blanket approach to withholding public records” represents.

We drew on an extensive body of open records caselaw recognizing and implementing the legislative presumption favoring access to public records as well as the single reported case in which an agency unsuccessfully argued that the duty to redact excepted information and produce nonexcepted information was overly burdensome.

The Bluegrass Institute Center for Open Government stands with the appellees in support of the Court of Appeals’ holding which, in our view, gives “maximum effect both to the privacy protections of taxpayers and to the public’s interest in knowing how our tax laws are administered.”

Does the public have a right to know how the Department of Revenue interprets Kentucky’s tax laws in recurring disputes that affect taxpayers?  The simple answer is “yes.”

 

 

Attorney general rules no foul in UofL open meetings challenge, but the public’s right to know is penalized

COG2When the legislature enacted KRS 61.810(2) in 1992, it did so with good intentions. The Open Meetings Act had prohibited secret meetings of a quorum of the members of a public agency where public business was discussed or action taken since its enactment in 1974.

But agencies quickly found ways to circumvent the Act by holding serial less than quorum meetings where consensus was secretly reached. No quorum was “present” during any of these meetings, but the members attending the meetings collectively constituted a quorum.

The effect of these “floating” or “rolling” serial less than quorum meetings was the same as the effect of a secret meeting of a quorum: the public was denied its legal right to monitor the discussions that went into  the “formation of public policy.”

In enacting KRS 61.810(2), lawmakers recognized that “[a]ny series of less than quorum meetings, where the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency” are public meetings under the Act and must be open to the public.

Clear enough. Agencies could no longer evade open meetings compliance by discussing public business in a secret meeting of a quorum of their members or in a series of less than quorum meetings.

At this point, the legislature apparently got cold feet. Lawmakers retreated from the strongly worded statement of prohibited conduct found in KRS 61.810(2) by requiring proof that the serial meetings were “held for the purpose of avoiding the requirements” of the Open Meetings Act.

Consider the challenge to the public of obtaining proof that the agency members intended to violate the Act and the ease with which the agency could refute that proof by submitting affidavits from the members attesting to their innocent participation in the serial meetings.

Lest KRS 61.810(2) have any real impact, lawmakers inserted an additional loophole that permitted serial less than quorum meetings “where the purpose of the discussions is to educate the members on specific issues.”

Not surprisingly, agencies regularly raise this defense when they are accused of violating KRS 61.810(2).

It is, in fact, the defense that the University of Louisville Board of Trustees raised in fending off a legal challenge arising from a September 27 press conference in which Board Chairman David Grissom “told reporters that he called every trustee to get their take on how best to respond to the recruiting scandal,” and indicated that “every trustee told [him] they supported acting President Greg Postel’s decision to suspend athletic director Tom Jurich and men’s basketball coach Rick Pitino.”

It is also, unfortunately, the basis on which the Kentucky Attorney General affirmed that action.

Relying on that portion of KRS 61.810(2) which excludes discussions held for the purpose of educating members from the prohibition on serial less than quorum meetings, UofL defended the telephonic meetings between Grissom and the Board members as “informational” and “advisory.”

And in 17-OMD-222  the attorney general agreed with UofL.

In what can only be described as a confusing analysis both legally and factually, the attorney general determined that “The U of L Board did not violate the Open Meetings Act by informational calls made by the Interim President to board members notifying them of the decision to place Mr. Jurich on administrative leave.”

The complainant did not allege, nor did the evidence support, a series of telephone calls placed by  the university president to the individual board members. The complainant alleged — and the evidence incontrovertibly supported — a series of telephone calls placed by the chairman of the board to the individual board members. The attorney general’s understanding of the underlying facts is curiously flawed.

This error aside, the attorney general casually accepted the board’s defense that the series of less than quorum telephonic meeting —  in which board members collectively constituting a quorum participated —  were informational only notwithstanding the fact that Grissom, himself, stated in a press conference that he contacted the members by telephone to “get their take on how best to respond” to the scandal and that every member expressed support for President Postel’s decision to suspend the key players.

This suggests not just the sharing of information but also discussion of alternatives (“how best to respond”) and  expressions of opinions (“expressed support”) on a matter with which the board of trustees was ultimately entrusted, specifically, Jurich’s future employment at the university.

In fact, it sounds a lot like the beginning of “the formation of public policy.”

KRS 61.810(2) does not require proof that the members took action. Their discussion of public business was sufficient to trigger the KRS 61.810(2) requirement of an open meeting even if that portion of the meeting relating to discussion of Jurich’s discipline or dismissal was conducted in a properly convened closed session.

The casualness with which the attorney general approached this issue will embolden other public agencies to exploit the loopholes in KRS 61.810(2) that essentially render it a nullity. Short of an admission by agency members that their goal was to avoid the requirements of the Open Meetings Act and that they took action on a matter with which they were entrusted, 17-OMD-222 suggests he is willing to give them a pass.

In a report issued earlier this year, the Bluegrass Institute Center for Open Government recommended elimination of both of the loopholes in KRS 61.810(2).  We proposed a zero tolerance statute. The benefits would be twofold. First, public agencies could no longer evade accountability by the simple expedient of feigning ignorance of their statutory duties. And second, the public could assert the right to monitor discussion of the same information presented to the members so that the public and the members would be equally well educated on specific issues.

The net effect would be a slam dunk for open government.