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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Public records belong to the public.

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

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

 

 

 

“Preliminary” pension reports and perennial problems with public access

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Also on November 2, the Kentucky Supreme Court confirmed the public’s right of access to the financial records of a utilities management company –  privately incorporated but wholly funded through its contract with local government — that had evaded scrutiny since 2011.

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

“Much ado about nothing?” The Oldham Circuit Court disagrees.

COG2In July, 2017, we criticized an open records decision issued by the Kentucky Attorney General declaring that a public agency could place restrictions on an open records recipient’s use of nonexempt public records without subverting the intent of the Open Records Law.

We suggested that an attorney general’s decision endorsing agency’s censorship of a recipient’s publication of records obtained under that law represented a direct assault on the public’s right to know. We cited four prior attorney general holdings — three of them legally binding open records decisions —  that directly contradicted the attorney general’s 2017  decision.

Following her unsuccessful appeal to the attorney general, the open records recipient, a Cabinet for Health and Family Services employee who had been  instructed by the Cabinet that she could not discuss the records released to her with anyone, challenged that attorney general’s decision in the Oldham Circuit Court. In late July, we reported on the hearing in that case.

We were outraged by the dismissive attitude of the Cabinet’s attorney toward the hearing. He characterized the issue before the court as “much ado about nothing.” When he and I met outside the courtroom prior to the hearing, he expressed surprised at my presence declaring that the issue was “stupid.”

Oldham Circuit Judge Karen A. Conrad did not agree.

On October 24, she issued an opinion declaring that the Cabinet for Health and Family Services violated the Open Records Law when it disclosed public records to the recipient with instructions not to share the records with anyone else.

Judge Conrad was apparently no more impressed by the Cabinet attorney’s “remarkable display of obfuscation” at the hearing than were we. In her opinion, she focused on the referenced legal authorities issued by the attorney general  — the most recent in 2014 —  which counsel for the Cabinet and the attorney general chose to ignore.

Noting that the “the common theme among them is that it is impermissible for an agency to direct how a person may use documents procured from an open records request,” Judge Conrad concluded that although the Cabinet “supplied the requested documents pursuant to an open records request,” it “violate[d] the Open Records Act in advising the [recipient of the records] that she could not discuss the contents with anyone but her supervisors.”

In so doing, she repudiated the Cabinet’s actions and the attorney general’s 2017 open records decision approving those actions.

Cases like this one do not make headlines. The Cabinet employee who brought it is not a famous, or infamous, public official. The stakes are high, ostensibly at least, only to her.

But her courage and sacrifice in bringing this action cannot be discounted. And the principle that she and her attorney successfully vindicated is fundamental to the Open Records Law.

“What is at stake” we asked in our analysis of the circuit court hearing in July? “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?”

Cynics may disagree, but these small battles in the war on agency abuse of the Open Records Law do as much, if not more, to steadily advance and invigorate the cause of transparency and accountability than some of the widely reported cases whose holdings may have limited application.

The individuals who bring these cases in circuit courtrooms across the state are true  champions of open government. Their efforts represent considerably more than “much ado about nothing.” And their achievements are anything but “stupid.”

Through their efforts and achievements, these individuals may one day succeed in convincing agencies like the Cabinet for Health and Family Services to abandon a “culture of secrecy” that – in 2016 — resulted in the imposition of  hundreds of thousands of dollars in penalties, costs and attorneys’ fees. Perhaps the agencies will reconcile themselves to, and even embrace, the value of open government if that day comes.

 

 

Presidential searches and police internal investigations: what public agencies must do, may do and should do to promote public trust

COG2Kentucky’s open records and open meetings laws are, fundamentally, public access laws. They exist to  ensure any person’s right to inspect and copy public records and to attend public meetings — regardless of the person’s identity or purpose — and to create a statutory mechanism for enforcing those rights.

When the laws were enacted in the seventies, lawmakers recognized that the public’s right to know must occasionally yield to a legitimate need for personal privacy or governmental confidentiality. They adopted several exceptions to the laws and prefaced them with language indicating that the exceptions are iron clad.

But one of the earliest rulings issued by the Kentucky attorney general — to whom lawmakers assigned the role of open records and open meetings dispute mediator — recognized that an exception to the  laws is “a shield and not a shackle.” Because there is no penalty for affording the public access to  a record or meeting that may be protected under one of the exceptions, a public agency may waive an exception if “going public” promotes the greater good.

The Kentucky Supreme Court confirmed this view in 2013 when it declared that lawmakers ”did not intend to mandate an iron rule of non-disclosure whenever an exemption applies.”

Two recent headlines in the Courier Journal suggest the challenges agencies face in responsibly exercising the discretion to waive an exception. While it’s easy enough to argue that agencies should always exercise that discretion in favor of public access, the analysis is rarely that simple.

Every exception is grounded in a specific policy designed to protect legitimate personal or governmental interests. Waiving the exception without careful consideration comes at a cost to those interests.

In an October 4 story, the Courier reported that Louisville Metro Police released records relating to an internal review of police conduct by its Professional Standards Unit following the Courier’s legal challenge to LMP’s partial denial of its open records request. The review grew out of concerns about how detectives “handled the investigation of a disabled teen who suffered two fractured legs after he was restrained by a teacher’s aide at a Jefferson County public school.”

LMP had released the records that initiated and concluded the investigative review — consisting of the letters notifying the detectives that a Professional Standards review was underway and letters advising them that the concerns were not sustained and that no disciplinary action would be taken – but denied the Courier access to the underlying Professional Standards investigative file.

LMP’s position was based on the preliminary documents exceptions found in the Open Records Law and a 1982 Court of Appeals’ opinion interpreting the exceptions in a nearly identical factual context.

Within a few days of the Courier’s appeal to the attorney general, LMP waived the exceptions and released the investigative file in its entirety.

LMP recognized that existing legal authority arguably supported its partial denial of the request. But LMP also recognized the substantial public interest in ensuring that it thoroughly and responsibly reviewed whether its detectives’ properly discharged their duties in investigating this very serious incident.

LMP concluded that the public’s interest far outweighed its arguable right to withhold the Professional Standards file. Here, “going public promotes the greater good.”

Also on October 4, the Courier reported on the University of Louisville’s decision to maintain the confidentiality of the applicants for its new president. The article did not identify the legal basis on which this decision was made, but the attorney general has recognized that the privacy exception to the Open Records Law authorizes agencies to withhold the identities of applicants for public employment while a search is proceeding and to continue to withhold the identities of unsuccessful applicants after a selection is made.

The attorney general’s position is based on the recognition that unsuccessful applicants may suffer reputational  damage as a consequence of being deemed less qualified than the successful applicant or they may experience retaliation by their current employer when they are “outed” as applicants for another job. The position finds direct support in federal case law and indirect support in state case law.

The risk of an open search, some experts suggest, may be a less qualified applicant pool from which to select.

The dilemma for the University of Louisville in deciding whether to waive the privacy exception and disclose the applicants’ identities is whether it should risk limiting the qualified applicant pool by conducting an open search.

Given the crisis in leadership which the university faces, it is critical that it cast the widest possible net for the best qualified applicants. To exercise its discretion in favor of waiving the privacy exception may, on the one hand, impede this goal. Asserting the exception by withholding the identities of the applicants may, on the other hand, undermine the public’s confidence in the process as well as the incoming president. The question is, therefore, would “going public,” in this case, “promote the greater good?”

 

 

 

 

“Happy birthday to my [open records] request!”

COG2City Limits reporter Jarrett Murphy sarcastically celebrated the one year “birthday” of his still unresolved state freedom of information request to the New York Department of Education for records relating to moldy pizza in school cafeterias in a September 29 article.

He described 14 identical letters he received from the department in the intervening months politely explaining to him that “due to the volume and complexity of requests we receive and process, and to determine whether any records or portions thereof will be subject to redactions . . , additional time is required to respond substantively to your request.” Each letter identified an “anticipated” date on which the records would be released. Each date came and went, and the department produced no records.

Murphy guiltily acknowledged that he had “more regular communication with the [New York] DOE’s Office of Legal Services over the past year than [he had] with [his] mom.”

While it’s true that a good sense of humor comes in handy when dealing with bureaucracies, the Kentucky Center for Investigative Reporting’s Kate Howard was probably not laughing when she was forced to file two open records appeals in August and September, following the appeal she filed in June, from the University of Louisville’s failure to respond in writing, and within three business days, to her open records requests.

But the last laugh was hers when — for the second and third time this year — Ms. Howard received favorable rulings from the Office of the Attorney General.

In 17-ORD-120, that office admonished the University of Louisville for largely ignoring Ms. Howard’s request — not to mention its statutory duty — while its records custodian served as a juror, forcing Ms. Howard to file the first of her 2017 appeals against the university to dislodge the records.

Amidst the fallout from the June release of a forensic audit that disclosed the university’s patent abuse of — and disregard for — the Open Records Act, the Center for Open Government marveled at the university’s audacity in a July blog, assigning the university a failing mark for noncompliance with the requirements of the Act in ignoring Ms. Howard’s request.

A few short months later, Ms. Howard was compelled to file two more appeals from the university’s failure to respond to separate requests for public records.

The records custodian’s excuse on these occasions? She was on vacation. Apparently, the university was blissfully unaware of multiple open records decisions declaring that the absence of the agency’s custodian does not relieve the agency of its statutory duty to issue a final response to an open records request within three business days of its receipt.

And apparently, in its well-staffed administrative offices the university could find no alternate “custodian”  to ensure the timely processing of open records requests in the absence of its official custodian.

The Office of the Attorney General was having none of the university’s lame excuses, and on September 25 issued two open records decisions, 17-ORD-193 and 17-ORD-194, again sternly rebuking the university for its repeated violations.  Unfortunately, the office’s staff can do no more under the existing statutory framework. But this pattern of noncompliance is no laughing matter and  evidence of such a pattern, if presented to a court, might very well result in the imposition of monetary penalties.

No, we are not dealing with one year delays in the production of records. Instead, we are dealing with patterns of university conduct that undermine the public’s right to know. And at a time when the university can ill-afford to do so, that conduct further erodes the public’s trust.

As we observed in a June op-ed, although  “delays in producing public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level [and in some other states, they] are no less offensive to the principle that ‘the value of information is partly a function of time.’”

And there is nothing funny about that.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Good news and bad news in the struggle for open government

COG2At the end of a week in which an Associated Press article sent shock waves through the open records community comes word of positive developments in Kentucky.

More about that report later, but first the good news. Two articles and one editorial published late this week identify local agencies that are moving in the right direction toward open and accountable government.

The State Journal reports that a “work group” formed by — and consisting of — Frankfort and Franklin County officials for the purpose of  selecting “a consultant to assist with redevelopment of land beneath the Frankfort Convention Center and Fountain Place shopping center” will comply with the Open Meetings Law in conducting it meetings.

That work group, rechristened the Frankfort/Franklin County Planning and Advisory Committee for Redevelopment of the Capital Plaza and Associated Areas, had been meeting behind closed doors in spite of vigorous objection.

Insider Louisville reports that the Louisville Metro Police Department has reversed its previous denial of an open records request for weekly “Compstat” crime reports, containing detailed crime statistics, and will publish the reports on its transparency page.

LMPD’s initial denial was based on its characterization of the Compstat reports as “preliminary data” and “an internal working document/draft that is fluid an everchanging.”

And in an editorial that should be mandatory reading for every law enforcement agency in the state, the Kentucky New Era commended the City of Hopkinsville and it’s police department for its “immediacy and transparency” during and after an internal affairs investigation of a police officer that led to the officer’s resignation.

Such investigations are regularly shrouded in secrecy while they are proceeding and after they are concluded. Law enforcement agencies erect every conceivable barrier to access.

“It’s never easy for a police department to investigate one of its own,” the New Era opined, “but ultimately, protecting citizens and their rights is part of their duty as law enforcement officers.”

Regardless of whether these actions were prompted by public pressure or a sincere commitment to open government, this good news is reassuring to access advocates in this state who read with concern a September 19  Associated Press article. That article identifies a new and menacing tactic in public agencies’ assault on open government.

The article’s title tells the story: “Governments turn table by suing public records requesters.”

It identifies several cases across the country in which public agencies – resisting disclosure of “embarrassing or legally sensitive” records – have gone on the offensive and filed lawsuits against open records requester rather than granting or denying their requests as state laws require. The requesters, often private citizens with limited incomes, are forced to absorb the cost of litigation, rather than the nominal cost of reproduction, to obtain public records.

Kentucky figures prominently in the article which spotlights the University of Kentucky’s and Western Kentucky University’s legal actions against student journalists. Although the article conflates these judicial appeals under the Open Records Law with preemptive lawsuits in other states, the message is the same.

“File a request at your peril.”

This — on top of news of lawmakers across the country “chipping away” at open records laws by carving out new exceptions for particular types of records or creating blanket exemptions for certain public officials or agencies – should set off warning bells for anyone who espouses support for open government but takes the laws supporting that principle for granted.

Add to this news of escalating obstructionism by agencies that exploit loopholes/technicalities in their state’s laws to postpone or deny the public’s right of access and unapologetic editorials by public officials weary of the “inconvenience” these laws create, and open records advocates might reasonably despair.

But the AP article also points out that a New Jersey court dismissed a suit filed by a town against a person who requested police surveillance video, characterizing the lawsuit as the “antithesis” of open records policies aimed at promoting access. And in Michigan, lawmakers enacted legislation making it illegal for agencies to sue records requesters after a county sued a newspaper that had requested the personnel files of two public employees.

Regardless of whether the good news outweighs the bad news, across Kentucky, and across the nation, the struggle for open government continues.

 

Franklin Circuit Court judge instructs reporters on the importance of the open records law.

COG2The sparsely attended hearing conducted in the Franklin Circuit Court on September 20 belied the importance of the issue before the court.

Judge Thomas Wingate clearly understood the importance of the issue.

What was that issue?

Whether a public university can ignore the express language of a statute that authorizes the Kentucky Attorney General to obtain and examine — but maintain the confidentiality of — records relating to allegations of sexual harassment leveled against university employees in order to determine the propriety of the university’s denial of a request for those records?

Under Kentucky’s Open Records Law, the Attorney General is required to review public agency denials of requests for agency records and issue decisions stating whether the agency violated the law in denying the requests. Those decisions — referred to as open records decisions or ORDs — “have the force and effect of law” if not appealed to the appropriate circuit court within 30 days of issuance.

The single most important tool available to the Attorney General in discharging this statutory duty — the tool that enables him to independently verify that an agency’s denial is supported by law — is under assault by three public universities: the University of Kentucky, Western Kentucky University, and Kentucky State University.

Each university received an open records request from the University of Kentucky’s student newspaper, The Kernel, each located records confirming incidents of sexual harassment of students by university employees, and each denied The Kernel access to the records based on a federal law prohibiting disclosure of student “education records.”

When The Kernel appealed those denials to the Attorney General under the statute described above, each university refused to honor the Attorney General’s statutorily authorized request to examine the disputed records so that he could independently verify that the records relating to sexual harassment of students by university employees were or were not, in fact, federally protected “education records.”

Because the Attorney General could not substantiate the universities’ claim of exemption, he ruled against the universities and in favor of The Kernel. The universities responded by suing The Kernel and its student editor.

And, for the first time in the forty plus years since the enactment of the Open Records Law, the Attorney General intervened in the open records dispute between the universities and The Kernel to preserve his office’s statutory right to confidentially review agency records in open records disputes. Until recently, agencies have more or less willingly cooperated with the Attorney General by honoring his requests for the records to ensure proper resolution of the open records issue presented to him on appeal.

The Open Records Law assigns the burden of proving that a denial is proper to the universities in the same section of the same statute that authorizes the Attorney General to obtain disputed records for purposes of substantiating an agency’s denial before rendering an open records decision. Moreover, Kentucky’s  courts have declared that an agency “cannot benefit from intentionally frustrating the Attorney General’s review of an open records request; such result would subvert the General Assembly’s intent behind providing review by the Attorney General.”

For these reasons, Judge Wingate repeatedly asked counsel for Kentucky State University why his client objected to providing the disputed records to the Attorney General for statutorily authorized confidential review.

Why, indeed?

For all the university’s overblown rhetoric concerning the dire consequences of disclosure of sexual harassment records to the Attorney General under an unambiguous statutory mandate, its position is based on a single nonbinding  “opinion letter” issued by the federal Department of Education Family Policy Compliance Office to the Texas Attorney General in 2006.

In the University of Kentucky’s case, it is more likely based on the non-disparagement clause in the attractive separation agreement it entered into with its rogue professor.

WKU and KSU followed its highly questionable lead.

In the course of this hearing, Judge Wingate repeatedly emphasized the importance of the open records issue presented and the role of the Attorney General. As the parties concluded their arguments, and the courtroom began to fill for the next hearing, he reminded those who had just arrived what the next hearing was about. “Bourbon,” he derisively declared more than once.

He then directly engaged the reporters who were gathering for the hearing on the Pappy Van Winkle heist. He admonished them for their failure to cover the open records hearing that was concluding and suggested that a bourbon heist should not command the level of media attention that a case involving the media’s lifeblood — the open records law — commands.

We are grateful to the Attorney General for his unflagging commitment to preserving the statutory mechanism so vital to the meaningful discharge of his duty under the open records law. But for his candor and indignation — not to mention his unexpected shout out from the bench — the Bluegrass Institute Center for Open Government wishes to express its appreciation to Judge Thomas Wingate.

 

 

 

 

 

 

One year later: what the attorney general and I learned about the value of Kentucky’s sunshine laws

COG2At 9:01 p.m. on August 31, 2016, I sent an email to several friends and colleagues from my office in the basement of the Capitol. The subject line read, “Catch you on the flip side.” It contained the following message:

“As many of you know, this is my last day of service to the Commonwealth (and it’s been a late one). I wanted to let you know that if I can ever assist you with anything open records/meetings related (or otherwise, within reasonable limits), please feel free to call or email me.  This is not a decision I made by choice and I fully intend to remain involved in open records/meetings, in some capacity, going forward. I will try to make myself useful. It’s been a great pleasure knowing and working with all of you.”

I had served as an assistant attorney general in the opinions branch of the office’s division of civil and environmental law for the previous 25 years in what I once described as the “best job in state government,” authoring open records and meetings decisions, educating public officials and others about these laws, and assisting the public in using the laws “to make transparent the operations of the state’s agencies.”

Conditions in the office had deteriorated over time, and it was clear that my services were no longer valued or desired. I did not know, as I left the Capitol for the last time that evening, what awaited me or, more importantly, what awaited the area of law in which I had worked for many years.

In the next several days, I learned that there was an unspoken appreciation for the value of service to Kentucky’s sunshine laws. Across the state, the media and the public responded to these events. The Advocate Messenger wrote that news of my departure was “like reading that the Bengals had cut A.J. Green just before the season opener because the new quarterback doesn’t like his running style.” A friend later explained to me that being referred to as the “A.J. Green of government transparency” was a good thing.

And in what has to be described as the most unique, and certainly the best, retirement gift I could have imagined, the Lexington Herald-Leader ran an editorial cartoon depicting the circumstances of my departure.

Happily, my retirement has yielded many positive outcomes.

Having been named director of the Bluegrass Institute’s Center for Open Government, I continue to work on open records and meetings initiatives in a respectful environment — where politics plays no role —  with a staff whose commitment to open government is absolute. At last I am free to express my opinions, assist others, and advocate for meaningful and much needed change to our widely respected but outdated laws without fear of retaliation or reprimand.

Most importantly, the attorney general has awakened to the reality that the open records and meetings laws invest him with the public trust. His statutory functions must be, and now are, being discharged in an atmosphere as nearly free from political intrusion as is possible in an elective office.

In June, 2016, his office issued 16-OMD-124 — a 21 page decision that was overtly political and legally incorrect — holding that the Kentucky Retirement Systems violated the open meetings law when the governor dispatched the state police to its meeting. The attorney general gratuitously devoted several pages to criticism of the governor rather than the legal issue actually presented. One year later, the decisions issued by his open records and meetings staff reflect an objective and balanced analysis of the laws.

Contrary to critics’ beliefs, the decisions are no longer politically driven. I may not always agree with them, but they generally represent a reasoned interpretation of the facts and law. The only known exception is this attorney general’s failure, when the opportunity presented itself in 16-ORD-262, to overrule a notoriously bad open records decision issued by his predecessor on his last day in office holding that electronic communications concerning public business exchanged by public officials and employees on personal devices are not subject to the open records law. He has otherwise permitted his staff to properly discharge this statutory function.

Through no fault of the open records and meetings staff who wrote the decisions, statutory deadlines for issuance of open records and meetings decisions were ignored in the last several years of the previous attorney general’s administration. This bad habit – a violation of the statutes — carried over into the first year of the current attorney general’s administration. Since September, 2016, the deadlines have been closely observed.

These improvements are reflected in the weekly press release of open records and meetings decisions issued by the attorney general’s office. The release also suggests that the attorney general avoids assignment of politically sensitive appeals to non-merit staff. His merit staff still suffers under the weight of an enormous workload, but they are finally accorded the respect they were once denied.

And for the first time, the attorney general has intervened in a circuit court appeal of an open records decision to defend ”the single most important tool [his staff has] in ferreting out the truth in an [open records] appeal”  presented to his office.We can only hope that the courts’ ultimate resolution of this legal issue reflects an appreciation for the importance of the public trust invested in the attorney general in adjudicating open records and meetings disputes.

It is safe to say that none of these improvements would have taken place if I had remained in the attorney general’s office. Despite the merit staff’s best efforts, there was insufficient impetus for change until shortly after August 31, 2016.

As for me, the offer of assistance with “anything open records/meetings related” that I made in that late night email to friends and colleagues stands. I can be reached at abensenhaver@freedomkentucky.com or 859.444.5630.