Law firm’s investigation of Jurich may remain forever secret.

COG2On January 28, we reported on an increasingly common practice among public agencies that threatens the public’s right of access to investigative reports and analyses for which they, the public, pay. The same practice – we noted — has expanded employment opportunities for the legal community. From an open government perspective, this is unfortunate.

More and more, agencies are contracting with attorneys to conduct investigations into matters of  public interest as diverse as prematurely returning disciplined teachers to the classroom and violations of campaign finance laws.

In some cases, agencies enter into the arrangements for the express purpose of avoiding the requirements of the Open Records Act.  These agencies employ attorneys to investigate — or hire investigators — in order to shield the resulting report and analysis from public inspection based on the attorney-client privilege. Kentucky’s courts recognize the privilege as an exception to public inspection under certain circumstances.

In other cases, the agencies enter into the arrangement with the understanding that the resulting report and analysis will be released to the public when final action is taken or a decision is made to take no action. This, clearly, is the practice that comports with the spirit and letter of the Open Records Act.

On January 29, the Courier-Journal reported that the law firm retained by the  University of Louisville in its breach of contract dispute with former athletic director Tom Jurich has hired a detective agency to “provide additional context, fill in blanks and presumably to dig for dirt on Jurich as he and the university head toward mediation and a potential court battle.”

Given the University’s past track record on open records compliance, we suspect it will not be inclined to waive the attorney-client privilege and release the law firm/investigator’s report at its conclusion. To do so would require a level of respect for the public’s right to know that the University has thus far sadly failed to demonstrate.

State Journal files counterclaim against Finance Cabinet in Franklin Circuit Court action

COG2On January 26, The State Journal filed a motion for leave of court to assert a counterclaim against the Finance and Administration Cabinet in a case in Franklin Circuit Court arising from the Cabinet’s lawsuit against a reporter for the newspaper. The lawsuit seeks to reverse a favorable ruling by the Attorney General obtained by the newspaper in its open meetings dispute with the Cabinet.

Center for Open Government Director Amye Bensenhaver represents The State Journal in the action.

The case stems from State Journal reporter Alfred Miller’s attempts to attend those portions of  meetings conducted by the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee that state law requires to be conducted in open session. The committee was charged with making recommendations on bids submitted by contractors under state procurement laws unique to the built-to-suit process.

As he pursued the story, Miller received repeated assurances that “upon the award of any public solicitation, the Finance and Administration Cabinet has always maintained a longstanding practice of releasing almost all records related to the award, inclusive of all bids, composition of evaluation team, bid scoring, and the final terms agreed to.”

The committee completed its duties and a contract was awarded on December 19, 2017.

On December 21, Miller submitted an open records request to the Cabinet for copies of the responsive bids. He received no response to his request. The Open Records Law requires public agencies to notify a requester, in writing and within three working days, whether his request will be honored and to make the records available on the third day if they are not “in active use, in storage, or not otherwise available.” Miller received nothing.

On January 9, 2018, Miller contacted the Cabinet’s records custodian to remind her that the agency’s response was long overdue and to ascertain the status of his request. She responded that the Cabinet is “still in the process of gathering all the requested documents,” and that she “anticipate[d] to be able to respond to [Miller’s] request on or before February 1, 2018.” Miller immediately asked that she “provide a reason for the delay.” Later that day, the Cabinet’s Public Information Officer notified Miller that “we have staff gathering the information, which will need to be reviewed as well.”

Quoting KRS 61.872(5) — which deals with requests for public records that are “in active use, in storage or not otherwise available,” and requires public agencies in such cases to provide “a detailed explanation of the cause” for further delay —  Miller again asked for “more detail on the cause of the delay.” Again, he received no response of any kind.

Based on these events, The State Journal has requested leave to amend its response to the Cabinet’s petition for review of the attorney general’s open meetings decision favoring the newspaper in order to assert a counterclaim against the Cabinet for subverting the intent of the Open Records Act short of denial of inspection. It is The State Journal’s position that the Cabinet actions  subvert the intent of the Act by impermissibly and unjustifiably delaying Miller access to the four responsive bids for over a month beyond the three day statutory deadline.

We are asking the court to order the immediate disclosure of all responsive bids and to find that the Cabinet willfully withheld the requested bids.

It is our firm belief that the ends of justice, as well as judicial economy, support our request.

Attorneys profit from agency disfunction and the public foots the bill

COG2One benefit of forced retirement is the opportunity to monitor what is happening on the state and national open government stage that extends beyond the narrow confines of my cramped office in the basement of the Capitol. Sunlight, which my co-workers and I rarely saw in the winter months, has exposed a deeply troubling level of noncompliance with the Sunshine Laws we fought — and fight — to defend.

Noncompliance is a pervasive problem at every level of government and in every state — indeed, every country — that enjoys the benefits of laws protecting the public’s right to know. But the issue came home to rest for me personally when I was recently drawn into a divisive issue in Frankfort with significant open records and meetings implications. The details have been recounted in numerous articles in The State Journal.

Fundamentally, the open records and meetings issues arise from a dispute between and among the members of the Frankfort Electric and Water Plant Board’s Board of Directors concerning its contract with KyMEA— an interagency body of municipal utilities operating under a “coordinated business structure” created to meet the municipalities’ electrical needs and to enable members “to benefit from economies of scale in planning for and obtaining power supply resources.”

That dispute has escalated into a power struggle that has compromised the directors’ ability to discharge their duties and led to demands for the removal of the directors who are KyMEA critics. Allegations of malfeasance and non-feasance have been leveled by the directors between and among themselves and by city commissioners.

One thing is certain. The dispute has created tremendous employment opportunities for the legal community. Directors who are critical of the KyMEA contract first secured board approval for a $50,000 contract with an out of state law firm to review the KyMEA contract. The law firm’s draft report was delivered to these critics on November 28, but this fact was not disclosed until the law firm submitted an invoice for the report five weeks later. The critics’ attempt to “nullify” the report by returning or deleting it has everyone in Frankfort scratching their heads. The report was “unnullified” when it’s existence was revealed, and although the critics on the board agreed to share it with the remaining Plant Board directors, they refused to share it with Plant Board staff based on a tortured but unexplained interpretation of the attorney/client privilege.

The ratepayers who financed the report are left to wonder about its contents and why it was labeled a “draft” other than as an additional basis for avoiding open records requirements. This, of course, raises a separate but equally confounding open records issue.

In the meantime, the controversy — festering for months – bled over to the Frankfort Board of Commissioners. A vote approving a $20,000 contract for an attorney to investigate whether the actions of these Frankfort Plant Board directors rise to the level of malfeasance, misfeasance, non-feasance, or inefficiency justifying removal was rescinded in the wake of open meetings challenges but approved again at a subsequent meeting. That report is expected in less than a month.

The question is: Will the Commission and the Board of Directors make public the reports that the public financed or will they hide behind the attorney/client privilege to deprive the public of its statutory right to know?

With this nagging question in mind, I spoke to the assembled body at the last Commission meeting. My comments were also meant for the directors of the Plant Board who have thus far resisted disclosure of their contract attorneys’ report even, as noted, to members of the Plant Board staff.

Because they have relevance beyond the immediate controversy, I include a portion of my comments here:

“Kentucky’s Sunshine Laws, both open meetings and open records, begin with a presumption of openness. The statutory exceptions to this presumption of openness, the law tells us, must be strictly construed. Even where an exception applies to the topic of discussion at a public meeting or the matter addressed in a public record, the exception should be invoked only where there is an overriding need for governmental confidentiality, codified in statute, that clearly outweighs the public’s statutorily protected right to know.

Events in the past several weeks demonstrate just how much we have departed from these ideals.

Far too much time is expended on exploring avenues to evade these laws. Far too little time is expended on complying with the laws and, in complying, giving more than lip service to the right of the public to know that its servants are indeed serving the public’s interests.

I have become especially concerned about the growing public agency practice of retaining attorneys to conduct investigations and issue reports that may be shielded from public inspection by the attorney/client privilege—a privilege that is recognized in the laws under narrowly tailored circumstances. The privilege is not intended to enable public officials to avoid scrutiny by strained construction and labored effort.

The Kentucky Center for Investigative Reporting recently exposed the Jefferson County Public Schools’ admitted attempt to avoid accountability for hastily returning disciplined teachers to the classroom by retaining a law firm to advise on the issue. The law firm hired an investigator to examine the problem and JCPS invoked the attorney/client privilege as the basis for withholding the resulting report.  The problem is not confined to JCPS.

Taxpayers (or ratepayers) are asked to finance investigations, reports, and legal analysis to which they are ultimately denied access. From the public’s perspective, actions are taken by their agencies  in a legal and factual vacuum. The principle that the ‘formation of public policy is public business,’ enshrined in the laws, is the ultimate casualty.  This is a serious affront to open government.”

On behalf of the Bluegrass Institute Center for Open Government, I called on the Commission – and indirectly, the recalcitrant Plant Board directors — to “commit to transparency in retaining counsel to investigate and analyze the urgent issues that confront our community and in sharing the results of that investigation and analysis—not just the final action it elects to take.”

Only time will tell if the Commission or the Plant Board are moved to do the right thing.

 

 

 

When transparency becomes an inconvenience, legislate!

COG2In October 2017, we reported on a decision issued by the Kentucky attorney general in an open meetings dispute between The State Journal and the Finance and Administration Cabinet. The dispute centered on a State Journal reporter’s unsuccessful attempts to learn the identities of the members of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee and to attend the open portions of the committee’s meetings.

Fundamental to The State Journal’s position was the uncontested fact that the committee was created under authority of KRS 56.8163(1), a state statute, that the Open Meetings Act defines the term “public agency” as “any body created by or pursuant to state or local statute, and that the committee is therefore a public agency.

“The cabinet,” we noted in our discussion of the attorney general’s open meetings decision, “did not address either statute, or the statute authorizing the committee to conduct closed session discussion of specifically enumerated topics, in defending its longstanding practice of conducting committee meetings without notice to the public or complying with any of the other requirements imposed on all public agencies by law.”

Instead, we noted, the cabinet relied on an obscure advisory opinion issued by the attorney general in  1994 — relating to sub-delegation of administrative responsibilities in a university setting — and the argument that disclosure of the identities of selection committee members would expose the members to potential improper contacts and influence. This amounted to the unprecedented and legally unsupportable argument that “darkness is the best disinfectant.”

Happily, that position was soundly rejected  in 17-OMD-207. The attorney general’s staff determined that the Finance and Administration Cabinet’s refusal to publicize — and admit the public to —  the open portions of the meetings of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee violated the Open Meetings Act.

In so holding, the staff concluded that “there is always a risk of improper contact in any issue of public importance,” and that “the Open Meetings Act makes no exemptions based on the mere possibility of improper contact.”

Unfortunately, the cabinet was not gracious in defeat. Although it grudgingly admitted The State Journal and the public to a scant few minutes at the beginning and end of a meeting conducted on October 26, it initiated an appeal of 17-OMD-207 to the Franklin Circuit Court  on November 3.

On appeal, as before, the cabinet cited no legal authority supporting its position other than the 1994 advisory opinion – an opinion that instead supported a finding that the selection committee is a public agency, the attorney general’s staff concluded –  and confidentiality statutes embedded in Chapter 56 of the Kentucky Revised Statutes – which The State Journal has never contested but which apply to the contents of bids before a contract is awarded and not to the open portions of the selection committee’s meetings.

The cabinet also resurrected the implausible argument that compliance with the Open Meetings Act could “undermine the confidentiality of the procurement process by exposing evaluation team members to great risk of improper contact, lobbying, and public opinion pressure, especially when a procurement is the subject of strong community opinions.”

That action is pending in the Franklin Circuit Court.

Now comes news of the introduction on January 18 of House Bill 216, sponsored by state Rep. Jason Petrie, R-Elkton. That bill is aimed at amending  the Open Meetings Act to exempt committees — like the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee — from the requirements of the Open Meetings Act to the limited extent currently mandated by statute . The bill is also aimed at amending the Open Records Act to exempt from public inspection “[i]nformation identifying the members of a procurement or selection committee” and “[r]ecords of the procurement process.”

As we observed in October, “KRS 56.8169 authorizes [such] committees to discuss specific proposals in closed session. [No one] disputes this clearly established law. The General Assembly has statutorily fixed the limits of the committees’ permissible closed session discussion. The Finance Cabinet and its committees are not at liberty to exceed these limits based on unsupported claims that statutorily assigned duties will be compromised by public scrutiny.”

Apparently, the cabinet is not confident in its interpretation of its own statutes when read in conjunction with open meetings statutes. And rightly so. There simply is no ambiguity in the statutes which specifically require portions of the selection committee meetings to be conducted publicly and generally require compliance with the Open Meetings Act.

In the absence of any proof beyond a bare claim supporting the cabinet’s argument that sunlight is likely to infect the procurement process — and that darkness ensures integrity in that process – or any circumstance warranting a change in the existing law beyond the inconvenience of admitting the public to the open portions of selection committee meetings and otherwise complying with the Open Meetings Act, we are compelled to ask, “Why legislate?”

‘The Post’: A reminder of the importance of the courts in defending the public’s right to know

COG2A recent article in the Corpus Christi Caller Times heralds the release of “The Post”–Steven Spielberg’s dramatization of the internal and external battles that accompanied the Washington Post’s 1971 publication of the Pentagon Papers–and reminds us of the importance of the courts in protecting the public’s right to know at the federal, state and local level.

The article focuses on the challenge now confronting Texans in exercising their rights under the state’s Public Information Law—the Texas equivalent of Kentucky’s Open Records Law– following a major setback in the courts and “a mighty but ill-fated [legislative] effort to put some of the teeth back into Texas’ open government laws.”

That case, The Boeing Company v. Ken Paxton, involved a public information request for, among other things, the lease between the Boeing Company and the Port Authority of San Antonio. Boeing resisted disclosure of portions of lease containing what it deemed proprietary information, unsuccessfully litigating the issue through the Texas Attorney General’s Office, a trial court, and the Texas Court of Appeals. However, Boeing prevailed in the Texas Supreme Court.

The Court’s opinion, the Caller Times observes, “opened up a loophole that pretty much allows businesses to declare almost anything to be a trade secret, even how much a city pays an entertainer for singing at a city celebration.” And, as noted, attempts to legislatively close the loophole have not yet succeeded.

Anyone who needs a reminder about the importance of the public’s right to know should take a moment to watch Texas Representative Terry Canales impassioned speech on the House floor indicting those who blocked efforts to reinvigorate the Texas Public Information Law. “Some say ignorance is bliss,” he declares, “I say information is power.” Take a moment to watch.

Kentucky’s Open Records Law contains a narrow exception for “records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records.” The corresponding exception in Texas’s law is much broader.

It is highly unlikely that the Kentucky attorney general, a Kentucky circuit court, the Kentucky Court of Appeals, or the Kentucky Supreme Court would affirm Boeing’s position under Kentucky law if the same issue were presented here. This is primarily because a lease is not a record “confidentially disclosed to an agency or required by an agency to be disclosed to it.” Kentucky’s exceptions must be “strictly construed,” and a lease does not qualify for protection under the first part of the exception.

In this, Kentucky is fortunate. Our attorney general and courts must interpret the narrowly worded exceptions to the Open Records Law strictly and in a manner consistent with the legislative presumption favoring openness. And they only rarely disappoint.

In the most recent example of judicial protection of the public’s right to know, the Franklin Circuit ordered the Kentucky State Police to pay $24,000 in attorney’s fees, costs and penalties in a case involving a mother’s protracted battle to obtain records relating to the disappearance of her daughter in 1995. On January 5, the court sanctioned KSP because it “lacked plausible justification for withholding the records” and “did so in conscious disregard of [the requester’s] rights.”

Kentuckians owe a tremendous debt to the framers of our Open Records Law, the legislators who enacted and have preserved it, and those who have championed it inside and outside the courtroom through its forty plus year history. But administrative and judicial protection of the Open Records Law is essential to a vigorous Open Records Law and an informed people. Like Texas Representative Canales, the Center for Open Government believes that information is, in fact, power.

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

2017 in review: the top ten Kentucky open meetings and records stories of the past year

COG2It’s easy to identify the most significant years in the history of the Open Meetings and Open Records Acts since I first professionally encountered them as an assistant attorney general in 1991.

In 1992 and 1994, for example, the legislature dramatically overhauled the then nearly 20 year old acts, clarifying—among other things– the attorney general’s role as a formal mediator of meetings and records access disputes between citizens and public agencies. The attorney general’s decisions in these disputes were thereafter statutorily recognized to have the “force and effect of law” if not appealed to the courts.

It was also in 1992 that the Kentucky Supreme Court issued a landmark opinion—Kentucky Board of Examiners of Psychologists v. Courier Journal—declaring, among other things, that our laws “exhibit a general bias favoring disclosure.” The case established the roadmap for future interpretation and inaugurated a period of vigorous judicial interpretation that continues to this day.

The following years witnessed highs and lows in open meetings and open records analysis.

2005, for example, is remembered as the year Kentucky came to terms with the grim realities of the modern world—to which we had been tragically awakened four years earlier—by enacting a homeland security exception to the open meetings and open records laws. The exceptions are narrowly drafted and rarely successfully invoked but available in those unusual cases where disclosure “would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in. . .protecting against. . .a terrorist act.”

In 2008 the courts issued an opinion whose humble origins bely its great importance. Commonwealth v. Chestnut involved a prison inmate’s attempts to obtain the nonexempt portions of his inmate file. It  remains—in my view—one of the most significant cases issued in the 40 plus years of the laws’ existence.

2013 was a year of unprecedented activity in the courts. In a series of opinions, the courts advanced—mostly–the laws and overruled a 1992 opinion that led law enforcement agencies to erroneously believe they could deny access to all investigative records while an investigation was “open.”

2016  stands out as the year in which the courts penalized the Cabinet for Health and Family Services in a case involving willful nondisclosure of records relating to the deaths or near deaths of neglected, abused and dependent children under its supervision in an amount exceeding $756,000. The Court expressed “exasperation at the Cabinet’s systematic and categorical disregard for the rule of law” and declared that “[t]he Open Records Act is neither an ideal nor a suggestion. It is the law. Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

2017 will be remembered as a year that did not, generally, disappoint proponents of open government. It requires little effort to identify the top ten open meetings and records stories of the past year. They are, in no particular order:

  1. Audit finds willful obstruction of the public’s right to know by the University of Louisville and its Foundation: a June 2017 audit revealed that University and Foundation officials and employees “engaged in a course of conduct aimed at evading public scrutiny through malicious evasion, obfuscation and secreting away of public records on non-foundation premises” to conceal exorbitant spending practices. Our analysis of these offenses can be found here.
  2. Kentucky Supreme Court confirms the public’s right of access to the financial records of a utilities management company:  privately incorporated but wholly funded through its contract with local government, Utility Management Group  had evaded scrutiny since 2011 asserting that it was not a public agency for open records purposes. A 2012 amendment to the Open Records Act cast doubt on the attorney general’s 2011 decision that UMG’s financial records were subject to inspection, but in November the Court rejected the argument in Utility Management Group LLC v. Pike County Fiscal Court. We examined the case here. A recent article in the Appalachian News Express indicates that the fiscal court has not yet obtained UMG’s financial records. Since the Supreme Court remanded the case to the Pike Circuit Court with directions to enter an order directing disclosure, we trust there will be no further delays.
  3. Finance and Administration Cabinet appeals The State Journal’s favorable attorney general open meetings ruling: in October the attorney general determined that the Finance Cabinet’s refusal to publicize — and admit the public to —  meetings of the Capital Plaza built-to-suit selection committee–a committee established by statute with express authority to conduct specified business, but not all business, in closed session– violated the Open Meetings Act following The State Journal’s legal challenge. The Cabinet appealed the attorney general’s decision, naming the reporter who initiated the challenge as defendant, and the issue is currently pending in the Franklin Circuit Court. Our report on the case can be found here.
  4. State universities’ ongoing lawsuits against their student newspapers, in which the attorney general has intervened, yield mixed results: in 2016, the attorney general determined that the University of Kentucky failed to prove that records relating to sexual harassment complaints against a professor were excluded from public inspection when the university refused to honor the attorney general’s statutory request to conduct a confidential review of the records to confirm or refute the university’s position. UK appealed, other universities followed suit, and the Attorney General intervened to preserve his office’s statutory right to confidentially review agency records in open records disputes. In August, the Fayette Circuit Court ruled that UK was not required to honor the attorney general’s request to review records — if characterized by the university as “education records” — for purposes of mediating an open records dispute. In October, the Franklin Circuit Court reached the opposite conclusion in a case involving the UK student newspaper and Kentucky State University, expressly rejecting the Fayette Circuit Court’s analysis. The cases are pending in the Kentucky Court of Appeals.
  5. Danville Advocate Messenger prevails in protracted open meetings litigation with the City of Danville: in a rare open meetings opinion, the Kentucky Supreme Court held that closed board meetings at which the Danville Board of Commissioners agreed to bid on a building that had come up for sale at an absolute auction — and decided on a maximum bid — were impermissible under the open meetings exception for “[d]eliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency”  and therefore violated the law. Unfortunately, the Court reversed the lower court’s award of attorneys’ fees, and the newspaper must absorb the cost of the lengthy and expensive litigation. We reported on the case here.
  6. House of Representatives releases an arguably exempt “preliminary” investigative report involving sexual harassment allegations leveled against Representative Jeff Hoover but Kentucky Retirement System refuses to release a nonexempt “post-decisional” actuarial analysis of the published pension reform bill: on December 3, the Center for Open Government commended the House of Representatives for its decision to release a “preliminary” investigative report relating to allegations of misconduct leveled against the House speaker prepared by a Louisville law firm. In the same post, we criticized the Kentucky Retirement Systems’ refusal to release an actuarial analysis of the published pension reform bill based on its claim that it does not possess a copy of the analysis and its suggestion that all future requests for the analysis be referred to State Budget Director John Chilton. We maintained that “Chilton does not have unilateral authority to deny the public access to the report, and KRS is foreclosed from ceding its open records decision making authority on the report, or any other record that it prepares, owns, uses, possesses or retains, to a single trustee.” The issue has been appealed to the attorney general and an open records decision is expected soon.
  7. City of Taylorsville requests that the Spencer Circuit Court impose punitive and compensatory damages on an open records requester: in an unprecedented and wholly unauthorized move, the Taylorsville is seeking damages from an open records requester who received a favorable ruling from the attorney general in an open records dispute involving access to responses filed by city commissioners to ethics complaints against them. The city appealed the attorney general’s decision and included a claim for damages based on the requester’s publication of the corresponding complaint which he obtained by means other than an open records request. The case is set for a hearing on February 8 in the Spencer Circuit Court on a motion to dismiss alleging, among other things, that the claim for damages is intended to intimidate and bully the requester from exercising his open records and First Amendment rights. We examined the case here.
  8. Fayette Circuit Court declares that the University of Kentucky violated the Open Meetings and Open Records Acts in responding to the Lexington Herald-Leader’s open meetings complaint and records request: in June, the university refused to release an audit conducted at its chief compliance officer’s direction following receipt of complaints concerning a then-recently acquired heart clinic in Eastern Kentucky and a related PowerPoint presented to the board of trustees by outside counsel at a regularly scheduled dinner meeting held the night before its May 2016 business meeting. Our analysis of the opinion, which has not been appealed, is found here.
  9. Open records and meetings staff of the Kentucky Attorney General’s Office issues multiple decisions advancing the public’s right to know: while we have not endorsed every decision issued by the open records and meetings staff in 2017, there were several decisions that dramatically moved the laws forward. These include 17-ORD-224in which the staff determined that the Cabinet for Health and Family Services violated the Open Records Act in withholding investigative records relating to a murder/suicide involving a young child and his mother, both under the Cabinet’s supervision, without showing how release of the records “poses a concrete risk of harm” to the agency in “a prospective action.” As we observed in our analysis, “The law is clear on this point, and past open records decisions should no longer muddy these waters.” In 17-ORD-268, the staff  correctly determined that the Office of the Governor violated the Open Records Act in denying a request for the keywords used to filter “profane, obscene, or clearly off-topic comments” from its Facebook page. And in a decision that has not yet been posted on the attorney general’s website—17-ORD-273–the staff determined that the University of Kentucky improperly allowed an employee to conduct public business on his private e-mail account through automatic forwarding of all messages on his public account, failed to conduct an adequate search for the emails and failed to properly maintain public e-mail in a manner consistent with proper records management practices.
  10. Bluegrass Institute Center for Open Government receives a favorable decision from the attorney general in an open meetings challenge involving a closed meeting of a quorum of the members of the House of Representatives at which public business was discussed and the House appeals that decision to the Franklin Circuit Court: on November 30, 2017, the Kentucky House of Representatives filed an appeal in the Franklin Circuit Court from an open meetings decision issued by the attorney general on November 1 determining that the House violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members–without legal justification–to discuss pension reform. The Bluegrass Institute Center for Open Government challenged the House’s illegal closed session in a complaint to the Speaker of the House and an appeal to the attorney general. The Bluegrass Institute is therefore named as defendant in the appeal to the Franklin Circuit Court. The long term implications of the case have been examined in a number of posts the latest of which can be found here.

We include at number 11 on our list of the most important open meetings and open records stories of 2017, and at the risk of immodesty, the creation of the Center for Open Government within the Bluegrass Institute in early 2017 and the publication in May of our report, “Shining the Light on Kentucky’s Sunshine Laws.”  In that report, we call for clarification, reconciliation, and modernization of the Open Meetings and Open Records Acts which were last substantially amended in 1994. We undertake this initiative as a means of furthering the Bluegrass Institute’s longstanding commitment to promoting the goal of open, transparent and accountable government.

All in all, 2017 has been a reasonably good year for open government.

Kentucky House of Representatives v. Bluegrass Institute

COG2Few things are more familiar to regular television viewers than the one hour courtroom drama.

The program begins with the commission of a crime, continues with the investigation—often accompanied by strategic legal maneuvering—and reaches its climax in a dramatic courtroom scene where justice prevails in the conviction of the guilty and the exoneration of the innocent.

Since the early days of television, the plots have become more complex, exposing weaknesses in our judicial system as well as the legal and moral ambiguities that lawyers and their clients confront.

No courtroom drama can, however, capture the glacial pace with which most legal actions proceed. In general, such actions linger in the courts for years.

It is, perhaps, for this reason that the architects of Kentucky’s Open Meetings and Open Records Acts established a statutory mechanism for speedy resolution of disputes concerning the public’s right of access to meetings and records of the agencies which serve the public.

As we have noted in the past, sunshine laws like our own are premised on the recognition that “the value of information is partly a function of time.”  When the Kentucky attorney general commits to compliance with the statutory deadlines for issuing open meetings and open records decisions, as has the current office holder since September 2016, an open meetings appeal to his office must be resolved within 10 business days and an open records appeal to his office must be resolved within 20 to 50 business days.

This discrepancy exists because the Open Meetings Act establishes a fixed 10 day deadline with no statutory mechanism for extending that deadline. The Open Records Act, on the other hand, authorizes the attorney general to extend his 20 day deadline under statutorily defined “unusual circumstances”—for example, “the need to obtain additional documentation from the agency or a copy of the records involved.”

It is, by the way, the latter clearly established right that has given rise to litigation between the state’s universities and their own student newspapers that is slowly making its way through the courts. To his credit, the attorney general has intervened in those cases to defend this absolutely essential tool for resolving open records disputes presented to his office that he is guaranteed in  statute, in regulation, and in caselaw.

Whether 10 days or 50 days, Kentucky’s laws guarantee resolution of most open meetings and open records disputes in a matter of days, rather than months or years, by means of an appeal to the attorney general—a simple and user friendly process–that is unparalleled in other states and unheard of at the federal level.

Importantly, the decisions his office issues—if not appealed to circuit court within 30 days of issuance—have “the force and effect of law,” and therefore bind the parties, in both open meetings and open records disputes. This generally permits the public to pursue a legal challenge without incurring court costs and attorneys’ fees, preserves judicial resources, and promotes agency compliance with the laws.

Moreover, the attorney general’s analysis in open meetings or records appeals is—more often than not—well reasoned, well written and supported by legal authority. On past occasions when the attorney general refused to listen to the career open meetings and open records specialists on his staff, his open meetings and open records decisions have been spectacularly wrong. But these decisions are the exception rather than the rule—especially since the current attorney general awoke to the importance of his role in September 2016. He is usually right and caselaw construing the Open Meetings and Open Records Acts confirms this.

If either of the parties to an open meetings or open records appeal is dissatisfied with the attorney general’s decision, that party can challenge the decision in circuit court. Given their limited financial resources, media representatives and members of the public initiate these judicial challenges selectively and with an eye to meaningfully advancing the public’s right to know.

Public agencies, on the other hand, have deeper pockets and are therefore inclined to challenge an attorney general’s open meetings or open records decision for any number of reasons: embarrassment based on a finding that their actions violated the laws; arrogance based on a belief that their legal advisors cannot be wrong; obstructionism aimed at prolonging the legal proceedings until the issues presented are no longer relevant; and—most ominously—a desire to bully and intimidate the media or public and thereby discourage future legal challenges.

The only legitimate rationale supporting a judicial appeal of an attorney general’s open meetings or open records appeal is a good faith belief that the attorney general erred in his interpretation of the law and that a genuine issue of law exists that is appropriate for review by the courts.

On November 30, 2017, the Kentucky House of Representatives filed an appeal in the Franklin Circuit Court from an open meetings decision issued by the attorney general on November 1 determining that the House violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members–without legal justification–to discuss pension reform. The Bluegrass Institute Center for Open Government challenged the House’s illegal closed session in a complaint to the Speaker of the House and an appeal to the attorney general. The Bluegrass Institute is therefore named as defendant in the appeal to the Franklin Circuit Court.

The issue presented in the appeal is an important one: whether a quorum of the members of the House of Representatives can conduct secret discussions of issues of great public importance—in this case pension reform—through the simple expedient of declaring the meetings Majority Caucus meetings which the Minority Caucus is permitted to attend. Unless the attorney general’s open meetings decision is affirmed by the courts, future legislative abuses of the Open Meetings Act may well occur.

The Bluegrass Institute Center for Open Government will vigorously defend the attorney general’s decision to ensure that the public’s right of access to legislative discussion and debate is not abridged through what is likely to be a protracted legal process. The dispute will not be resolved in a one hour courtroom drama or in 10 business days–as contemplated by the statute and as we had hoped–but we will fight this legal battle to its conclusion however long it may take.

Text-deleting app brings open government to the edge of the transparency abyss

COG2This one should make open government advocates stand up and take notice. Several recent reports, including this one in the St. Louis Post Dispatch, suggest that Missouri’s governor – and his staff – have downloaded the app Confide to their personal cellphones. The app “deletes messages and prevents recipients from saving, forwarding, printing or taking screenshots of messages.”

It brings government transparency – quite literally — to the edge of the electronic abyss.

The problem, of course, is that public officials regularly use their personal cellphones to conduct the public’s business. In Kentucky, the problem is compounded by the fact that in 2015 the attorney general ignored the overwhelming weight of legal authority – not to mention the unambiguous language of the  law — and on his last day in office declared that communications about public business conducted by public officials on their private devices are not subject to the state’s Open Records Act.

You can read more about the attorney general’s decision here and about the Bluegrass Institute Center for Open Government’s recommendations for legislation to address the problem here. No more compelling argument in support of the need for legislative revision to the 40 plus year old Open Records Act —  that was last substantially revised in 1994 — can be made.

To the extent it is possible to do so, the law must keep pace with technology.

In the meantime, Kentucky’s officials should be on notice that similar conduct in this state puts them at risk of prosecution for tampering with a public record.

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

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

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

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

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

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

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

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

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

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

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

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.