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.

Jefferson County Public Schools denies Bluegrass Institute’s records request

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Edit: Here is the actual letter sent by BIPPS to the JCPS– JCPS open records request 

It did not come as a complete surprise to the Bluegrass Institute when the Jefferson County Public Schools denied our request for written communications exchanged by officials, staff, board of education members and Superintendent Donna Hargens relating to the superintendent’s performance during the most recent evaluation cycle and her ultimate resignation, including written communications exchanged on privately owned electronic devices or stored in personal accounts.

We were aware of the obstacles we faced in attempting to access communications exchanged on private devices. The attorney general has undermined the public’s ability to access these records by twice declaring that they are not public records as defined in the open records law because they were not possessed and/or used by the agencies whose employees or members created them.

Never mind  that his own staff has, for years, recognized that “in 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.”

And never mind that the statute defines “public record” as “documentation regardless of physical form or characteristics, which is prepared, owned, used, in the possession or retained by a public agency.”

Proponents of access, including the Bluegrass Institute, will continue to wage a battle to prove that the attorney general’s position is legally unsupportable. But the battle to disprove JCPS’s position for denying the remainder of our request, which is summarized above for purposes of brevity, was fought and won several years ago.

JCPS argued that because our request was not sufficiently specific, it required a search of all 25,000 email accounts across the district, implicated “in excess of”  1,000,000 records and was unreasonably burdensome.

The Kentucky Supreme Court rejected similar arguments in a 2008 opinion. Noting that an open records requester “could not blindly, yet with particularity,” request “documents . . .that he had never seen,” the Court held that if “a reasonable person could ascertain the nature and scope” of an open records request the request was adequate.

More importantly, the Court recognized that “the obvious fact that complying with an open records request will consume both time and manpower” did not satisfy the “high proof threshold” for establishing an unreasonable burden. An agency cannot  “rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request.”

Although there are factual differences between our case and the 2008 case,  the Supreme Court’s holding applies to both.

Unlike the agency in the referenced case, JCPS did not close the door to our request altogether. Instead JCPA asked that we specify dates and search terms that are likely to yield the records we seek. However, we question whether it is our duty to assist JCPS in conducting its obligatory search for the records we requested. The parameters of our request were clearly stated.

We also question whether JCPS’s records management practices compound the difficulties associated with locating, retrieving and reviewing records in order to respond to all open records requests, not just ours. What would otherwise be a manageable number of records – as older records meet their required retention and are lawfully destroyed — becomes unmanageable as records unnecessarily accumulate through the years. Its considerably easier to locate, retrieve and review 100 records than 1000 records, and, in this case, an estimated 1,000,000 records.

The burden on JCPS is likely not of our making but of its own.

In the final analysis, we question JCPS’s candor in suggesting that our request necessitates a review of 25,000 email accounts and “30 days of machine time.” JCPS is only required to “make a good faith effort to conduct a search using methods which could reasonably be expected to produce the records requested.” It is not required “to embark on an unproductive fishing expedition ‘when the likelihood of finding records that fall within the outermost limits of the zone of relevancy is slight.’”

Perhaps JCPS’s  time would be better spent in commencing its search for records responsive to our request rather than trotting out these hackneyed defenses.

 

Not a big surprise: University of Louisville Foundation also engaged in open meetings violations

COG2The Courier Journal headline, “Experts: U of L officials improperly invested own money in foundation-backed companies,” gave no indication that the article’s introductory sentence would identify violations of the Kentucky open meetings law.

But reporter Andrew Wolfson prefaced his article with the statement, “They met in President James Ramsey’s conference room, with no notice to the public.”

“They were called the ‘Entrepreneurial Group,’” he explained, describing the group as “a select panel of University of Louisville Foundation board members, officers and outside consultants who recommended investments in new ventures to the foundation and to Ramsey.”

As an advisory committee of a public agency, the “Entrepreneurial Group” was also — these facts strongly suggest — a public agency for open meetings purposes.

Its most offensive acts did not consist of apparent open meetings violations including but not limited to the failure to give notice of, and admit the public to, its meetings. But the culture of secrecy within which the group operated contributed to the abuses with which the foundation is charged, enabling them to go unchecked far too long.

This is not the first time that allegations of open meetings violations have been leveled against the foundation. Here the allegations involve a committee established by the foundation.

And this is the critical point.

By its express terms the open meetings law applies to “any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency. . .established, created, and controlled by a public agency.”

Absent this statute, a public agency could avoid the requirements of the open meetings law, and accountability to the public, by establishing committees of less than a quorum of its total membership to conduct its business behind closed doors and convening publicly for the limited purpose of taking action. No discussion. No debate.

So much for the legislative recognition that “the formation of public policy is public business and shall not be conducted in secret.”

But the open meetings law does not permit this outcome. Committees of public agencies, even committees established for the exclusive purpose of advising, are themselves public agencies. A quorum of the committee is based on the total number of committee members and not on the total number of  members of the public agency that created it.

It is surprising how few public agencies acknowledge this fact.

Committees must adopt a schedule of regular meetings and treat all other meetings, including rescheduled regular meetings,  as special meetings, observe the requirements for conducting closed sessions, record minutes of their meetings, provide meeting room conditions that allow effective public observation, and in all respects “maximize notice of [their] meetings and actions.”

Given the gravity of the consequences that flow from noncompliance with the open meeting law, including the voiding of action taken at an illegal meeting, public agencies must understand and implement the duty to treat any of their committees as discrete public agencies and ensure that they  adhere to the letter of the law in conducting meetings. Failure to do so, the courts have noted, “would thwart the intent of the law.”
 

 

Modernizing the open records law

COG2While writing about the University of Louisville’s failure to respond to an emailed open records request submitted by the Kentucky Center for Investigative Reporting,  I discovered a January 2015 article published by KyCIR entitled “Fax Machines, Snail Mail and Transparency in Kentucky.”

Buried in the basement of the Capitol where I labored many years to meet statutory deadlines for issuance of open records decisions, I did not see the article in 2015. I acknowledge that I bristled at the suggestion that “Kentucky’s open records law doesn’t dictate one form of transmission over another.”

The article focused on agencies that continue to “bask in pre-Digital Age means of communicating with the information seeking public.” In what can generously be described as derisive terms, the author suggested that a fax machine, “a fossil” and “technological relic from the 1990s. . .comes in handy” in transmitting open records requests.

In fact, the open records law does dictate forms of transmission. In 1994 the law was amended to permit fax transmission of open records requests in addition to mail and hand delivery. Since 1994, the law has stated that an open records  “application shall be hand delivered, mailed, or sent via facsimile to the public agency.”

As email use became increasingly common in the years that followed, the attorney general’s staff struggled with the obsolescence of the statutory language. Nevertheless, we were constrained by that language and the knowledge that before 1994 “mail” meant U.S. Mail and email was not on the table in the legislative discussions surrounding the 1994 amendments.

We first attempted to address this problem in 98-ORD-167, an open records appeal in which the issue was placed squarely before us.

There we concluded that “’the parties (meaning the requester and the public agency) may enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by e-mail.’ Such a course of conduct arises when the requester transmits, and the agency accepts without objection, an open records request by email.”

“But,” we admonished,  “neither party can unilaterally compel the other party to conduct their open records business by email.” In later years we emphasized that public agencies must adopt uniform policies relating to acceptance of emailed open records requests and that if that policy authorizes rejection of such requests, the agency must immediately notify the requester to submit his request by hand delivery, mail, or fax.

Too little, too late? Perhaps.

But Kentucky’s courts have yet to interpret this 1994 amendment to the open records law, and the  role of the Attorney General in reviewing an open records dispute is a narrow one.

The language of the statute, as well as its legislative history, impeded our ability to fashion a Post-digital age solution. Moreover, “prudence counsels caution” in an era when today’s digital innovation becomes tomorrow’s “technological relic.”

The term “email,” the Bluegrass Institute’s Center for Open Government noted in its recent proposal for legislative revision of the open records and meetings laws, appears in only one place in either law. That is in the 2008 amendment to the open meetings law authorizing public agencies to email notice of special meetings to agency members and media organizations as long as they file “a written request with the public agency indicating their preference to receive electronic mail notification in lieu of personal delivery, facsimile machine, or mail.”

In our proposal, we strongly urge lawmakers to undertake modernization of the open records and meetings laws aimed at eliminating anachronisms and ambiguities in the law, including but certainly not limited to, references to facsimile machines.

We hasten to note, however, that in the case referenced above the University of Louisville failed to issue a response to KyCIR’s emailed open records request within the three business day statutory timeframe, responding 12 business days later and only after KyCIR filed an open records appeal with the Kentucky Attorney General.

Whatever mode of transmission Kentucky’s lawmakers settle on when they undertake revision of the law, human error, omission, neglect or recalcitrance cannot be legislated away.

 

Another corporation doing business with the state avoids the open records law

COG2For the second time in a month, a statute which the Bluegrass Institute has characterized as “the most confounding” in the open records law figures prominently in an attorney general’s decision holding that a private contractor to a state agency is not required to disclose records relating to the performance of public services and the expenditure of public funds under the contract.

KRS 61.870(1)(h) was originally enacted to expand the scope of the open records law to records in the possession of private entities that receive 25 percent or more of their funding from state or local government that relate to publicly funded functions, activities, programs or operations. It was amended in 2012 to exclude funds those entities receive for goods or services they provide under public competitively bid contracts from the 25 percent calculation.

Correct Care Solutions, LLC, the corporation whose status is at issue in 17-ORD-117, operates under a competitively bid contract with the Department of Corrections, and the funds its receives from the department for medical services rendered to inmates are excluded from the monetary calculation for determining its status as a public agency under KRS 61.870(1)(h).

In a recent blog we identified two other cases in which this statute, as amended in 2012, enabled corporations that derive some or all of their funds from state or local authorities to avoid accountability under the open records law for the performance of contractual services and  the expenditures of public funds. We examined the issue further in the Bluegrass Beacon.

A still active case dating from 2011  – involving a for profit company which provides management services to public waterworks under competitively bid contracts with local agencies – and a June 1, 2017 case  – involving a halfway house operating under a competitively bid contract with the Department of Corrections – underscore the seriousness of this problem.

17-ORD-117 – issued on June 22 — demonstrates that these are not isolated cases.

That open records decision involves an inmate’s request to Correct Care Solutions for his medical records. Resolution of the issue presented in the appeal turns on the fact that “all of the revenue CCS receives and expends in the Commonwealth of Kentucky is received through the public procurement process” and is excluded from the 25 percent calculation.

“CCS is not a public agency as that term is defined by KRS 61.870(1) and is therefore not subject to the Open Records Act.”

And here the analysis ends unless and until lawmakers reconsider the wisdom of the 2012 revisions to KRS 61.870(1)(h) and amend the statute as suggested by the Bluegrass Institute in its comprehensive analysis of the state’s sunshine laws and specifically proposed by Representative Chris Harris, D-Forest Hills, in 2016 and 2017.

When public records cannot be made public

COG2Not every public record is an open record. The law recognizes 14 exceptions to the general rule that “free and open examination of public records is in the public interest.” But a record that does not fall under one or more of these statutory exceptions must be disclosed to the public, and no restrictions can be placed on inspection or use of that record.

In January 2017 the attorney general ignored this fundamental principle of the open records law by issuing an open records decision in which he affirmed the Cabinet for Health and Family Services’ attempt to restrict the use of open records disclosed to a requester.

That requester, a cabinet employee, asked for copies of written statements that resulted in her reprimand. The cabinet disclosed the statements to the employee but – expressing concerns about use of the records to retaliate “against anyone for performing their job duties” —  advised her that she “should not discuss it [sic] with anybody, in any form or fashion, outside of [her] supervisors.”

Essentially, the cabinet told the requester that these open records could not be made public.

There is, by the way, no question that the requested records were open records. The written statements were adopted as the basis for the cabinet’s decision to reprimand the employee and therefore forfeited any protected status under the exceptions for preliminary documents that they may have once had.

The requester challenged the cabinet’s attempt to restrict her use of the records in an appeal to the Office of the Attorney General. She maintained that the cabinet’s actions subverted the intent of the open records law short of denying her access, a statutorily recognized basis for filing an appeal.

In the resulting decision, 17-ORD-007, the attorney general established a dangerous precedent by concluding that the Cabinet’s actions did not subvert the intent of the open records law. The attorney general reasoned – poorly, in our view – that the cabinet did not prohibit the requester’s right of access but instead “issued workplace restriction on [the requester’s] conduct.”

This strained interpretation of the law directly contradicts past decisions issued by the Office of the Attorney General.

In OAG 93-19, for example,  the attorney general advised legislators to whom public records had been disclosed by the Lottery Corporation – accompanied by strict admonitions on subsequent disclosure of the records – that the Lottery Corporation could not “prevent release of the information once it [was in the legislators’] hands.”

Two years later, the attorney general determined that nothing in the open records law “permits an agency to restrict a person to whom records have been released from reproducing those records or sharing them with others.” The “only restriction on secondary use of” public records the attorney general recognized in 95-ORD-77 related to commercial use of records as delineated in KRS 61.874(5). The attorney general reaffirmed this position in 04-ORD-113 and again in 14-ORD-170.

Lawmakers amended the open records law in 2016 to include a specific prohibition on commercial use of mugshots and booking photos, but these well-established principles otherwise remain firmly intact.

It is difficult to conceive of a clearer, and more improper, restriction on secondary use of public records than the restriction issued by the Cabinet for Health and Family Services to the employee whose appeal resulted in the attorney general’s erroneous decision in 17-ORD-007.

It is even more difficult to conceive a of clearer, and more improper, assault on the public’s right to know than an attorney general’s open records decision that endorses agency action aimed at censoring the recipient’s use of public records.

Fortunately, the requester has appealed 17-ORD-007 to the appropriate circuit court and a hearing is scheduled in July. Given the great importance of the issue it presents to the court, we will follow this case very closely.

 

University of Louisville receives a failing mark from the attorney general in open records 101

COG LOGOIn a recent blog, the Bluegrass Institute lamented the University of Louisville Foundation’s flagrant disregard for the open records law as well documented in the foundation’s June 8, 2017 forensic audit.

Mislabeling records to avoid detection, secreting records away in nonpublic places to mislead applicants, and destroying records to forever impede the public’s right to know, the foundation’s culture of secrecy rivals that of the Cabinet for Health and Family Services in the child fatality records litigation that resulted in the imposition of over $750,000 in penalties and attorneys’ fees in excess of $300,000 against the cabinet.

What, if any, penalties the foundation faces, its reputation is, and for the foreseeable future will be, severely compromised.

We were therefore dismayed to discover that the University of Louisville itself was censured for ignoring the basic requirements of the open records law by the Kentucky Attorney General in a decision issued on June 22.

In 17-ORD-120, the attorney general determined that the university violated KRS 61.880(1) by failing to respond to the Kentucky Center for Investigative Reporting’s request for athletic association board members’ conflict-of-interest forms within three business days forcing KyCIR to initiate an appeal after 12 business days and at least two follow up inquiries to the university to ascertain the status of its request.

KRS 61.880(1) establishes the requirements for agency response to an open records request. It states,  “Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.”

It was only after KyCIR submitted an appeal to the attorney general that the university responded, attributing the delay to the fact that its records custodian had been called for jury duty, and ignoring its duty to ensure the uninterrupted processing of open records requests even in her absence.

In other words, the university offered no plausible explanation for the delay.

To add insult to injury, the university elected to withhold information from the conflicts forms – many of which appear to have been generated after KyCIR submitted its request – without identifying, in even the most general terms, the nature of the information withheld.

The university invoked the  exception to the open records law generally protecting personal privacy and federal and state laws specifically protecting student education records but gave no indication how these exceptions apply to the information it withheld.

As the Kentucky Supreme Court has observed, “The agency bears the burden of proof . . . and what it must prove is that any decisions to withhold responsive records was justified under the Act.”

In a hypothetical university curriculum guide, this is Open Records 101. It’s about as basic and easily understandable as any provision of the open records law. And the University of Louisville, following in its foundation’s “proud” tradition, has received a failing mark.

Two steps toward open government, one step back

COG2A Fayette circuit court dealt the University of Kentucky a substantial blow in an opinion issued on June 27 in which it declared that the university violated both the open records and open meetings laws in responding to the Lexington Herald-Leader’s records request and meetings complaint.

The university – whose track record in open records and meetings compliance is less than impressive – refused to release an audit conducted at its chief compliance officer’s direction following receipt of complaints concerning a then-recently acquired heart clinic in eastern Kentucky and a related PowerPoint presented to the board of trustees by outside counsel at a regularly scheduled dinner meeting held the night before its May 2016 business meeting.

The university characterized the audit as a preliminary record and withheld it under the open records exceptions for preliminary drafts and notes and preliminary memoranda in which opinions are expressed.

The problem? Those exceptions have no application to records that are adopted by an agency as part of its final action. And in this case, the audit was adopted as the basis for the university’s decision to refund payments made by the complainants in full.

The university also argued that the audit and PowerPoint were not subject to public inspection because they constituted attorney-client/work product privileged materials. These privileges are regularly invoked by the university as a fallback position for denying access to any record that passes through university counsel’s hands.

Not every record that agency counsel reviews is protected by the attorney-client/work product privilege. If, for example, counsel reviews the menu for a board dinner meeting, is the menu excluded from public inspection? Given the university’s propensity for invoking the privileges in the face of multiple open records requests, this scenario is not entirely beyond the realm of possibility.

The Fayette circuit court nipped such an absurd possibility in the bud.

Noting that the audit consisted of “systematic analyses of data” and not “confidential communications made for the purposed of facilitating the rendition of professional legal services,” the court determined that “the fact that the audit was ultimately provided to either the university’s General Counsel or [outside counsel] is not sufficient to cloak it with the attorney-client privilege.”

The disputed PowerPoint, the court continued, was presented at a regularly scheduled dinner meeting of the board that was open to the public. No member of the public attended owing to “some intent on the part of the university to mislead the public about the nature of the . . .‘dinner’ meeting, implying that it was merely a social event.”

Nevertheless, the court concluded, “the decision to receive the report in an open meeting reflects a complete lack of. . .an expectation” of confidentiality and “the privilege is absent.”

The court frowned on the university’s attempt to rewrite the open records and meetings laws by dismissing its noncompliance with the statutory requirement that it keep minutes of its public meetings and, if justified, invoke the appropriate exception for closed session discussions, as mere “technicalities.”

Citing a Kentucky Supreme Court opinion in which the state’s highest court declared that the “failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,” the Fayette circuit court observed that “technical compliance with the Open Meetings Act is exactly what the law demands.”

Sadly, the Fayette circuit court did not adhere to Kentucky Court of Appeals binding legal precedent in resolving the question of access to outside counsel’s billing records.

The Court of Appeals held that not “each and every description of services rendered contained in billing statement prepared by non-government lawyers. . .falls under the attorney-client privilege” and required a “particularized demonstration that each description is privileged.”

Ignoring this precedent, the circuit court concluded that “the total amount paid [to outside counsel] is sufficient” to satisfy the public’s right to know, and placed the invoices under seal in the record. This is unfortunate.

But a reminder to the university, the precedent stands.

The university is no stranger to open records and meetings appeals of adverse rulings, and we suspect it will exhaust all appellate remedies before it finally accepts these well-entrenched principles of Kentucky’s sunshine laws.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Officials’ use of private devices to conduct public business: A serious threat to open government

BIPPS Logo_pick“BYOD,” or “Bring Your Own Device,” is an increasingly common corporate practice in which employees are permitted to conduct business on their personal computing devices. In the private sector, the practice is believed to increase productivity, enhance employee morale, and save on costs.

In the public sector, the same practice threatens the ability of citizens to hold agencies accountable through their records and meetings.

Relying on a legally unsupportable interpretation of the open records law advanced by Kentucky’s attorney general, some public officials in the state labor under the delusion that they can avoid scrutiny by conducting public business on their personal devices.

Until this question is resolved by the courts in a published opinion recognizing that the existing definition of the term “public record” extends to all communications concerning public business generated by public officials and employees —  whether transmitted on publicly issued or privately owned devices —  or the definition of “public record” is amended to avoid the attorney general’s preternaturally narrow interpretation, this grave threat to open government will persist.

In the context of records reflecting discussions of public business on private devices, Attorney General Jack Conway first articulated this reductive interpretation of the term “public records” on his final day in office. He directed the release of 15-ORD-226, two months after the statutorily mandated due date for his decision, obviating any possibility of internal staff discussion of the issue.

Quoting KRS 61.870(2), which states that “public record” means “documentation, regardless of physical form or characteristics, which is prepared, owned, used, in the possession of or retained by a public agency,” he grossly oversimplified the issue by suggesting that because “cell phone communications, including calls or text messages, made using a private cell phone that is paid for with private funds, are not prepared by or in the possession of a public agency,” they are not “public records.”

In so doing, he ignored the expansive definition of the term “public record” and years of precedent that had guided his office’s interpretation of the law recognizing that  “In 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.”  00-ORD-207.

Such communications concerning public business may reside on private premises, or in this case,  private devices but the public official or employee who owns the device, “holds [the records] at the instance of and as custodian on the [agency’s] behalf.”

Attorney General Andy Beshear compounded this error in 16-ORD-262, concluding that communications exchanged by agency officials with agency counsel on private devices were not “possessed or used” by the agency.  The communications related to agency business and — although ultimately deemed not useful by agency counsel — were reviewed by counsel and therefore used by the agency.

Again, the attorney general referenced the applicable law but ignored it.

As noted, Kentucky’s courts have not yet addressed this issue, but courts in other jurisdictions have, applying a rule of constructive agency possession and concluding that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them” maintains them on a private device.

These courts recognize that the purpose of public access laws is not served if an official or employee “can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain.”  It makes as much sense to say that the official “could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

Yet this is precisely what the Kentucky attorney general would have us believe.

There is no greater threat to the public’s right to know than this fallacious interpretation of the law. Followed to its logical conclusion, it eviscerates both the open records and meetings laws and extends to public officials and employees a license to conduct secretly all public business on private devices without fear of accountability.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Bensenhaver, winner in 2016 of the Scripps Howard First Amendment Center Award, spent 25 years as an assistant attorney general during which she wrote nearly 2,000 legal opinions forcing government entities to operate in the open when too many of them preferred to keep questionable – sometimes even corrupt – activities hidden from public view.

KentuckyWired: Still suffering from the secrecy virus

COG LOGOThe Bluegrass Institute has made no secret of its opposition to KentuckyWired, the state’s $340M broadband initiative, describing it as “a big government boondoggle” and examining the “[v]irus of secrecy infect[ing]” the project in an October 2015 article.

It should have come as no surprise to me when I was unable to locate the agency’s offices so that I could submit an open records request.

I was asked to obtain a copy of the regular meeting schedule for the Kentucky Communications Network Authority, the board that oversees KentuckyWired. The schedule was not posted on the agency’s website – not a legal requirement but a common practice among public agencies —  and the only available telephone number sent me directly to voicemail.

Several telephone calls to the Governor’s Office, to which KCNA is administratively attached, yielded no results. Otherwise helpful employees had never heard of the authority and ultimately provided me with the same telephone number I had already unsuccessfully called.

Later in the day, I reached an employee who provided me with the agency’s address: 209 St. Clair Street, Fourth Floor.

My reasons for hand delivering the open records request were twofold. First, I had wasted so much time attempting to locate the agency’s address, I missed the afternoon mail. And second, I wanted to determine if the agency had complied with KRS 61.876 by posting rules governing access to its records in a prominent location accessible to the public.

These statutorily required rules are the “how to’s” for citizens wishing to access the agency’s records by means of an open records request. KCNA’s rules were nowhere to be seen. Is this a violation of the open records law? You bet.

Several hours after I delivered my request, I received a telephone call from agency counsel and a subsequent email.

Notwithstanding the legal requirement that the “schedule of regular meetings. . .be made available to the public,” he indicated that  “at the April 2015 [sic] meeting the KCNA board set its regular meetings on a quarterly basis:  March, June, September and December.   The meetings will be scheduled for the 3rd Thursday of each month.  The Board’s next meeting is June 15 at 1 pm in Room 110 of the Capital.  Since the board set the regular meetings at the April meeting, I don’t have a document to provide to you, but I wanted to give you the information.”

I asked that he specify the actual dates, times and locations, and he responded, “Based on this schedule, the meetings will be September 21, 2017, December 21, 2017 and March 15, 2018, all to be held at 1 pm in Room 110 of the Capital [sic], contingent upon schedule and room availability.”

I reminded agency counsel that “the regular meeting schedule should fix the date, time and place for regular meetings,” but was minimally satisfied with his response.

That is until I received a follow-up email from agency counsel on June 15. He advised, “I wanted to let you know that at today’s meeting the Board changed the December meeting date.  It is now Dec. 14, 2017 at 1:00 pm in Room 110.”

By rescheduling the December 21 regular meeting to December 14, KCNA obligated itself to treat that meeting as a special meeting and to comply with statutory notice requirements. It is well established that a rescheduled regular meeting is a special meeting. See, for example, 92-OMD-1473, recognizing that “when the public agency deviates from its regular meeting schedule and reschedules that regular meeting, the rescheduled meeting becomes a special meeting.”

“The express purpose of the Open Meetings Act” —  Kentucky’s highest court has observed — “is to maximize notice of public meetings and actions.  The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” Both the legislature in enacting the law and the courts in construing it have demonstrated a commitment to open government openly arrived at.

Nevertheless, these events confirm that KCNA’s regular meeting schedule is conditioned “upon schedule and room availability” and therefore not fixed as to date, time and place. It provides inadequate notice to the public and no real certainty as to future regular meetings.

KCNA is far too casual about what constitutes a formally adopted regular meeting schedule. How many more changes will the board make and will these changes be reflected in its illusory regular meeting schedule?

How better to evade oversight than to conduct meetings without adequate notice to the public. Apparently, KCNA is still infected with the virus of secrecy that afflicted it in 2015.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.