You pay when the government fights to keep its secrets

COG2In 2016 the Kentucky Court of Appeals affirmed the award of statutory penalties, attorneys’ fees and costs against the Cabinet for Health and Family Services in an amount that exceeded $1 million dollars. The Cabinet had, over a five year period, exhausted every legal avenue in an attempt to shield from public inspection records relating to fatalities or near fatalities in cases involving children under its supervision who were neglected and/or abused in horrific circumstances that might have been prevented if the Cabinet had intervened.

It remains the highest penalty ever awarded in an open records dispute in Kentucky. In affirming the award the court acknowledged, “The penalty we affirm is a substantial one.  Substantial, too, is the legal obligation the Cabinet owed the public and the effort it expended in attempting to escape it. While it will ultimately be the public that bears the expense of this penalty, we maintain that the nominal punishment of an egregious harm to the public’s right to know would come at an even greater price.”

Herein lies the problem.

Public agencies have substantial monetary resources from which to draw in prosecuting or defending open records and open meetings litigation. And they are not reluctant to expend these resources to obstruct access as demonstrated in the protracted legal battle waged by the Cabinet for Health and Family Services. After all, the resources they expend on litigation are not really theirs. It is “the public that bears the expense”  of the litigation and any resulting penalties, fees and costs imposed by the courts.

The message the Cabinet sent to the public – at public expense — in resisting disclosure of records which exposed systemic problems within the agency was troubling. That message? It was more important to the Cabinet to insulate itself from criticism than to save children’s lives.

And don’t let anyone tell you that the Cabinet was chastened by these penalties or that things are demonstrably better there nearly two years later. No less than ten open records appeals have been filed against the Cabinet in 2017, one of the most recent involving — you guessed it — an unsuccessful attempt to avoid disclosure of child fatality records.

The Cabinet’s attempts to censor a requester’s use of public records disclosed to her in an open records request,  and its insulting and dismissive attitude toward that requester when she successfully challenged the Cabinet in the courts – at her own expense – have been documented in past blogs.

And, coincidently, the Cabinet recently settled a whistleblower lawsuit filed by an employee who was ordered to falsify records to cover up the Cabinet’s mistakes in a child abuse case. The Cabinet’s reasoning, one assumes, is that if records must be disclosed it is better to sanitize the records before they are released.

Even more troubling is the swelling tide of often harassing litigation filed by public agencies as an apparent means of silencing those who dare to question their practices. These cases, in part if not in whole, are motivated by a desire on the part of public agencies to leverage their superior resources against members of the public – and even the media – whose pockets are not nearly as deep.

“Governments turn tables by suing public records requesters.” The title of this September 2017 Associated Press article describing this emerging practice says it all.

While the public agency prosecutes the action in the court, the citizen or media representative is compelled to absorb the cost of defending the action. Recent examples include the University of Kentucky challenge to its own student newspaper’s attempt to obtain records relating to allegations of sexual harassment against a professor — using the open records law — in which the university named the student editor of the paper.

An even more recent example involves the Finance and Administration Cabinet’s challenge to a Frankfort reporter’s efforts to enforce his statutory right to attend meetings of a statutorily created selection committee that is statutorily required to conduct some business in open session and some business in closed session. Assuming that the Finance Cabinet can read the statutes, this litigation appears at best frivolous and at worst vexatious.

Nevertheless, both reporters, and the newspapers that employ them, were required to “lawyer up,” while the public agencies that sued them relied on public resources. Only time will tell if the public will pay penalties and costs imposed on the agencies by the courts if the courts find that the agencies willfully violated the laws.

But the prize goes to the City of Taylorsville.  I very recently learned about its request that the circuit court impose punitive and compensatory damages on an open records requester who received a favorable ruling from the Kentucky Attorney General in an open records dispute involving access to responses filed by city commissioners to ethics complaints against them.

The basis for the city’s claim in its circuit court appeal of the attorney general’s decision? The requester did not obtain the original complaints from the city through an open records request — but by other means — and the city was therefore deprived of its opportunity to withhold the complaints in an open records denial.

This tactic finds no support in the law. Knowing the requester as I do, I suspect it is more likely to embolden than intimidate him. But most open government advocates are less inclined to engage in fruitless, and wholly unjustified, legal sparring at their own expense.

In all of these cases the message public agencies send to open government advocates is clear: file a records request or meetings complaint “at your peril.” That message is “noxious to open government.”

Under Kentucky’s open records and meetings laws courts are permitted to award penalties, attorney’s fees and costs against agencies if they find a willful violation.  To paraphrase the Court of Appeals, the Open Records and Open Meetings Acts are “neither an ideal nor a suggestion. [They are] the law.”  Public agencies must strictly comply with them “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.”

Perhaps, in the final analysis, it is only the threat of meaningful punishment against public agency officials  — at the official’s and not the public’s expense — that will ensure compliance and prevent agencies from spending your money to keep their secrets.

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