Much ado about “something”

COG2“Much ado about nothing.” This is how the attorney for the Cabinet for Health and Family Services described the issue before the Oldham Circuit Court in the appeal of an open records decision issued earlier this year.

He was less grandiloquent in his description of the issue when we unexpectedly met outside the courthouse. Responding to his expression of surprise at my attendance, I explained that I thought the issue before the court was an important one. He replied, “it’s stupid.”

And so it remains. The Cabinet for Health and Family Services learned nothing from past mistakes which resulted in the imposition of penalties, attorneys’ fees and costs in excess of $1 million  for willfully circumventing the open records law as well as a scathing rebuke from the Kentucky Court of Appeals. A culture of secrecy and an attitude of contempt, disdain and obstructionism toward the open records law persists.

What is the “stupid” issue about which “much ado” is being made?

It is the issue we discussed in an earlier post involving a legal challenge to an attorney general’s open records decision, 17-ORD-007. In that decision the attorney general deviated from the well-entrenched principle that an agency cannot place restrictions on the use of nonexempt public records when it discloses those records.

The requester, a public employee, asked for copies of statements written about her that resulted in a reprimand. The Cabinet released the records to the requester but admonished her that she “should not discuss it [sic] with anybody, in any form or fashion, outside of [her] supervisors.”

“It is difficult to conceive of a clearer, and more improper, restriction on secondary use of public records,” we wrote, than the cabinet’s admonition to the requester.

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

The July 21 hearing in the Oldham Circuit Court began with counsel for the requester’s cogent defense of his client’s, and any open records requester’s, right to use nonexempt public records for any purpose that is not prohibited by law. In support, he cited prior attorney general’s open records decisions that affirm that right by stating 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.” See, for example, 95-ORD-77.

Counsel for the cabinet credited the OAG staffer who wrote the decision with an examination of hundreds of open records decisions. How he made this assessment is unclear. What is clear is that if, in fact, the staffer examined hundreds of decisions, he missed the decisions that were directly on point.

In a remarkable display of obfuscation, counsel for the cabinet invoked the familiar words of the Bard of Avon, also characterizing the issue on appeal as little more than a matter of “academic” interest.

He constructed a strained argument based on the fact that the cabinet’s admonition on use of the records was issued when the records were disclosed to the requester and not as a condition of disclosure, waiving the banner of prior restraint. In addition, he strongly suggested that a public employee has fewer rights under the open records law than an ordinary citizen.

And of course there were the apologies — always the apologies for the cabinet’s poor choice of words, or, in other cases, delays in producing records, false denials about the existence of public records, etc.

He cited, or actually miscited, a case involving the Kentucky Lottery Corporation, which he identified as the Kentucky Retirement Systems, and a defamation claim failed by corporation employees when the corporation created defamatory records, placed them in a file in anticipation of an open records request and released them when it received the request.

And how is that case relevant? Talk about muddying the waters!

What is at stake? Nothing less than the right of an open records requester to freely use the records to which she is afforded access. What good is a public record if it cannot be made public?

To paraphrase the Bard in a quotation from Hamlet, “[Counsel for the cabinet] doth protest too much, methinks.”

 

 

 

 

Barren County Progress publisher prevails in open records dispute

COG2The Bluegrass Institute’s Center for Open Government was pleased to provide assistance to Barren County Progress publisher, Jeff Jobe, in his recent successful open records appeal. The appeal originated in the Glasgow Electric Plant Board’s partial denial of Jobe’s request for records relating to the $7.4M SET Project sponsored by the TVA and implemented by the board.

Specifically, the board denied Jobe access to records identifying 350 property owners who participated in the project.

The board vigorously resisted disclosure of the records on the theory that its agreement with the TVA required it to maintain the confidentiality of the information. Its efforts to avoid the application of the open records law to these records included a letter to the program participants notifying them of Jobe’s “keen interest” in records implicating their personal privacy.

We assisted Jobe in distinguishing the authorities on which the board relied, in locating pertinent authorities and in responding to the board’s claim that already disclosed records satisfied the public interest in ensuring that it had properly discharged its duties.

Ultimately, we suggested that Jobe remind the board that “the fundamental purpose of the open records act is to enable the public to scrutinize agency claims of compliance through inspection of records that confirm or refute those claims rather than accepting the agency’s claims at face value.”

Our combined efforts yielded the desired result.

On July 13, the attorney general issued 17-ORD-135  in which he rejected the board’s position, adopted the arguments advanced by the Barren County Progress and affirmed the public’s right to know.

The open records law affords the Glasgow Electric Plant Board 30 days to appeal the attorney general’s open records decision to the Barren County Circuit Court. If the board chooses not to pursue this course of action before 30 days has elapsed, 17-ORD-135 will have the force and effect of law and bind the parties.

Bargaining away the public’s right to know

COG2Twice recently we have been reminded of the problems created when public agencies offer assurances of confidentiality in spite of their obligations under Kentucky’s open records law.

In the most recent case the attorney general concluded that a commitment made by the Glasgow Electric Plant Board to protect the identities of customers participating in a TVA financed project was unenforceable. The board has 30 days from the date on which 17-ORD-135 was issued to appeal the decision to circuit court.

In June the Kentucky Court of Appeals heard oral argument in the Purdue Pharma case.  The central issue there is whether a previous attorney general’s agreement with the pharmaceutical company to seal documents obtained in litigation arising from the company’s fraudulent marketing of OxyContin must yield to the public’s right to know. An opinion in that case is expected soon.

On July 18 the problem reemerged. Attending a meeting of the Frankfort Plant Board, I listened to the board’s discussion of the pros and cons of adopting a confidentiality policy presented to the board by Kentucky Municipal Energy Agency (KyMEA), a public agency created by interlocal agreement to “allow the 10 Member Municipal systems to obtain cost effective, reliable, and environmentally responsible resources.”

The board wisely rejected the policy.

Going forward, however, the board may be required to execute nondisclosure agreements to obtain “confidential” information maintained by KyMEA unless KyMEA can be persuaded that access to public records is governed by the open records law and, in the case of two public agencies, a provision of the law authorizing agency sharing of otherwise exempt public records if the exchange serves “a legitimate governmental need or is necessary in the performance of a legitimate government function.”

In each of these cases I was reminded of an early line of authority emanating from the attorney general’s office recognizing that “a public agency cannot abrogate the mandatory provisions of the Open Records Law by a promise of confidentiality which is not authorized by KRS 61.870 to 61.884.”

In other words, a public agency cannot bargain away the public’s right to know but can only “promise confidentiality as far as the permissive exemptions permit.”

Kentucky’s courts have weighed in on this issue as well.  In Central Kentucky News-Journal v. George Kentucky’s highest court rejected the argument that “a confidentiality agreement may impute, per se, a public record with a privacy claim superior to that of the public’s right of access,” concluding that such an agreement “cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act.”

The Court declared that “the people of this state, through their elected representatives, have stated in the clearest of terms that it is more important that they have access to . . .  information than that it remain confidential.”

Of course the open records law recognizes a legitimate need for confidentiality in fourteen exemptions approved by Kentucky lawmakers and codified at KRS 61.878(1)(a) through (n). From the exemptions “we must conclude that with respect to certain records, the General Assembly has determined that the public’s right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality.”

It is these exemptions, and not promises of confidentiality, confidentiality agreements or confidentiality policies that are not grounded in these exemptions, that govern access to records in the custody of a public agency.

Thus, KRS 61.878(1)(a) protects records implicating an individual’s privacy rights when those rights are superior to the public’s right to know.  KRS 61.878(1)(c)(1) protects records confidentially disclosed to a public agency that are generally recognized as confidential or proprietary if open disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed the records. KRS 61.878(1)(k) and (l) protect records made confidential by separate state or federal law.  And so forth.

Public agencies have no business offering assurances of confidentiality, entering into confidentiality agreements or adopting confidentiality policies that are not grounded in these and the remaining ten statutorily recognized exemptions. To continue to do so invites open records disputes and costly litigation at the expense of the public’s right to know.

 

 

 

 

 

 

Jefferson County Public Schools denies Bluegrass Institute’s open meetings complaint

COG2On May 7 the Bluegrass Institute reported on an April 30 meeting of the Jefferson County Board of Education. Nothing especially newsworthy there except that the board conducted this meeting at a highly questionable time and place.

The meeting was conducted at 4:00 pm on a Sunday afternoon in the office of a private law firm located on the 28th floor of PNC Plaza, 500 W. Jefferson Street, in downtown Louisville instead of the board’s regular meeting site.

The stated reason for the unusual time and location? This was the only time all board members were available to meet and “the law office was used so as to not inconvenience district employees who would have to open a building on a weekend.”

The Kentucky open meetings law requires public agencies to conduct their meetings at “specified times and places which are convenient to the public.” The law makes no reference to the convenience of agency employees.

This is one of the objections we raised when we submitted an open meetings complaint to JCPS chairman Chris Brady on June 21.

Leaving aside the unusual decision to conduct the meeting on a Sunday afternoon – which might discourage some attendees — we alleged that the board’s April 30 meeting violated the open meetings law because the meeting was conducted at an inconvenient location. In support, we cited a 2016 open meetings decision issued by the attorney general’s office determining that a meeting conducted in a private residence was inconvenient to the public.

That open meetings decision, 16-OMD-178, was based on legal authorities dating back to 1949 recognizing that a public meeting must be held in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

As a means of remedying the violation we proposed that the board acknowledge its violation of KRS 61.820(1) and agree to conduct all future meetings at times and places convenient to the public, namely its regular meeting site, unless the site does not provide adequate space, seating and acoustics.

JCPS denied our complaint, emphasizing the lack of proof that “any member of the public was in fact dissuaded from attending the meeting because of its location” and distinguishing a meeting held in a downtown office building from a meeting held in a private residence.

Chairman Brady noted that the downtown office building where the meeting was conducted “contains restaurants, a convenience shop and, until recently, a bank all of which are frequented by the general public during the week.” He maintained that “public, prominently-identified elevators transport the public to offices throughout the building, including the 28th floor offices of Wyatt, Tarrant & Combs where entry doors are (and were on the day of this meeting) wide open during the day.”

It was his position that “the public would have no reason to believe that accessibility would be any different for the April 30th public meeting even though that day was a Sunday.”

This is where we disagree.

Experience teaches that access to private offices is generally limited to business invitees during business hours. Private offices are entirely inaccessible to the public during nonbusiness hours.  Members of the general public do not freely enter and exist nonpublic buildings and offices at any time.

And certainly not on Sundays.

We confirmed this on a recent visit to PNC Plaza. At 4:00 pm on a Sunday afternoon we were unable to gain admittance through any of the doors to the building fronting Jefferson Street. All of these doors were locked.  On our final attempt to enter through a side door on Fifth Street, a guard unlocked the door. He confirmed that the doors to the building are locked on the weekend, and that if members of the public somehow gain admittance they are not permitted to take the elevators to the private offices located in the building.

None of the businesses which JCPS identified in its response were open much less accessible to the public.  As we were leaving, an individual who appeared to be an employee of one of the businesses located in the building admitted himself through an electronically activated door using a badge.

Whatever special provision was made for JCPS’s board meeting on April 30, to suggest that the meeting was conducted in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend” flies in the face of reasonable expectation and common experience. To assert that “the public would have no reason to believe that accessibility would be any different for the April 30th public meeting even though that day was a Sunday” is, at best, disingenuous.

Absent compelling justification, such as the inability to provide adequate space, seating or acoustics, the decision to conduct the meeting in any location other than JCPS’s regular meeting site was and is indefensible.

Jefferson County Public Schools denies Bluegrass Institute’s records request

COG2

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.

 

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.