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.

 

 

 

 

 

Adding insult to injury: University of Louisville denies request for emails relating to erasure of former president’s computer

COG2The plot thickens in the ongoing tale of University of Louisville abuses exposed in a forensic audit released in June. The disclosure that the University of Louisville erased former President James Ramsey’s computer – for the purported use of the acting president’s chief aide in an uncharacteristic money saving measure – was one of many offenses to the public’s right to know identified in the audit.

And now comes news that the university has denied an open records request for emails “that might shed light on the erasure of Ramsey’s computer.”  The Courier-Journal reports that the university relied on the exception to the open records law that authorizes law enforcement agencies, or agencies involved in administrative adjudications, to withhold records “that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by . . . premature release of information to be used in a prospective law enforcement action or administrative adjudication.”

History repeats itself.

In 1992, the University of Kentucky invoked this exception to deny the Courier-Journal access to its response to an official NCAA inquiry. The Kentucky Supreme Court summarily rejected this claim, reminding the university that “This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only ‘agency’ involved in ‘administrative adjudication.’ Therefore, KRS 61.878(1)[(h)] would not apply.”

Fast forward to 2017 and the University of Louisville raises the same defense. Here, however, the university does not assert that it is a law enforcement agency or an agency involved in administrative adjudication, but cryptically refers to an external investigation.

Although the Courier does not quote the full text of the university’s response – indicating only that the university “declined to disclose what agency is investigating” —  the article states that outside counsel for the university has “identified the state attorney general’s department of criminal investigations” as that agency.

The article goes on to quote counsel as having stated that “the AG’s office has asked the university not to release ‘materials compiled in the process of this investigation,” but this statement is otherwise unsubstantiated.

Moreover, when questioned about the university’s denial of the Courier’s request, the Attorney General’s spokesman pointed out that, in general, an agency relying on this exception to the open records law “must show why releasing the documents would hurt the probe. The university has not done that.” Absent such a showing – Kentucky’s courts have made abundantly clear – an agency cannot deny an open records request for investigative records.

And so the question again arises: what is the need for secrecy?

The open records law begins with a presumption that “free and open examination of public records is in the public interest.” Agencies are expected to release public records unless they are shielded from disclosure by one of the fourteen statutory exceptions and the need for governmental confidentiality outweighs the public’s right to know. The legislature directs that the exceptions “be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.” Additionally, the agency has the burden of proving that its denial was proper.

The university fails to prove that the attorney general’s department of criminal investigations – unnamed in its response – has requested that the university withhold the emails, fails to prove that disclosure of the emails would harm that investigation, and indeed fails to prove that the emails are “records compiled in the process” of investigation.

They are, in fact, records created in the ordinary course of business and nothing like an investigator’s notes, crime scene photos or witness interviews compiled in the process of detecting a statutory or regulatory violation.

The open records law requires disclosure of these emails.  Secrecy only postpones the inevitable end of the long university nightmare.

The thrill of victory and the agony of defeat: authorities’ handling of open meetings and records disputes yields conflicting results

COG2In a short span of 24 hours Kentucky’s open meetings and open records laws were handed a significant victory and a serious defeat.

The thrill of victory: Bluegrass Institute v. Jefferson County Board of Education

The victory occurred when the Bluegrass Institute and its Center for Open Government prevailed in an open meetings appeal involving the Jefferson County Board of Education.

On August 14, Assistant Attorney General James Herrick agreed with the Bluegrass Institute that a special meeting —  conducted by the Board of Education on  Sunday, April 30, in private law offices located in downtown Louisville —  violated the legal requirement that public agencies conduct their meetings “at specified times and places convenient to the public.”

JCPS argued that the meeting site was chosen to avoid inconvenience to JCPS staff and “conserve the considerable costs associated with opening the VanHoose Education Center on a weekend.”

Herrick rejected these arguments in his 17-OMD-161 ruling 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.”

He was persuaded by  “common experience as well as the specific experience of” representatives of the Bluegrass Institute — who were unsuccessful in their attempts to gain entry to the downtown office building  on a subsequent Sunday afternoon —  concluding that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

“This is not a situation in which a suitable public building was unavailable,” Herrick wrote. “Here, in addition to the VanHoose Education Center, the Jefferson County Board of Education governs a system of approximately 174 schools,” containing suitable public meeting rooms.

“With such a selection of locations available in public buildings,” he concluded, “we cannot reasonably find it ‘convenient to the public’ to hold a public meeting in a private law office . . . based solely on unspecified ‘costs’ of opening the VanHoose building on a Sunday.”

The Bluegrass Institute was pleased with the open meetings decision. Our goal in bringing the appeal was to establish that meetings of public agencies must always be conducted at times and places convenient to the public – even if it causes inconvenience to the public agency – and we believe we achieved this goal.

The agony of defeat: Commonwealth of Kentucky, ex rel. Andy Beshear v. University of Kentucky

One day before receiving news of our successful open meetings appeal against the Jefferson County Board of Education, the Lexington Herald Leader reported that on August 10 the Fayette Circuit Court ruled in favor of the University of Kentucky in an opinion that will seriously impede the ability of the Attorney General to effectively discharge his statutory duties under the open records law. The court ruled that UK was not required to honor the attorney general’s KRS 61.880(2)(c) request to review records — if characterized by the university as “education records” — for purposes of mediating an open records dispute.

Commonwealth of Kentucky , ex rel. Andy Beshear v. University of Kentucky, originated in an appeal filed by the Kentucky Kernel from the University’s denial of an open records request for the report of its investigation into allegations of sexual assault leveled by students against a professor who was permitted to resign from the university under very generous terms.

In correspondence directed to the attorney general after the Kernel initiated its appeal, UK  acknowledged the existence of a single oral complaint – subsequent events confirmed the existence of multiple written complaints – but relied on the attorney-client privilege and a federal law, the Family Educational Rights and Privacy Act (“FERPA”), to defend its denial of the newspaper’s request.

FERPA is intended to protect student education records from public disclosure, not to protect records relating to the educators who inflict injury on students.

Given this fact, the attorney general invoked KRS 61.880(2)(c) to request documentation from UK to substantiate its denial of the Kernel’s request including a copy of the report itself. In spite of the fact that KRS 61.880(2)(c) clearly authorizes this action, and assigns the burden of proof to the public agency, UK flatly refused to comply with this request.

In one of my last official acts as an assistant attorney general I wrote 16-ORD-161, concluding that UK had not met its statutorily assigned burden of proof and rendering a decision in favor of the Kernel.

I was unwilling to blindly accept, “without further proof in the form of a review of the report under KRS 61.880(2)(c) ‘for substantiation,’ that the report [,generated to comply with federal requirements, and not for the rendition of legal services, was]  attorney-client and work product privileged.”  Absent substantiation, I was also unwilling to defer to UK’s characterization of the report as a FERPA protected education record since it involved “records containing allegations of misconduct against a professor, not a student.”

In a 25 year career mediating open records disputes, I regularly employed KRS 61.880(2)(c) to ensure a fair and thorough review of the legal issues presented. I considered it the single most important tool in ferreting out the truth in an appeal.

And now the Fayette Circuit Court has declared the attorney general’s KRS 61.880(2)(c) authority forfeit in cases where a university invokes FERPA. If this ruling stands, the consequences will be serious, though perhaps not fatal, to the Attorney General’s review. While he can still require a university to meet its burden of proof that disputed records are education records through detailed description of the records, he will be constrained from reviewing the records to independently verify the university’s representations.

Under these circumstances, applicants may be forced to bypass the attorney general and proceed directly to circuit court for review of university denials based on FERPA  –  burdening the courts and incurring costs and attorneys’ fees along the way. Once on this slippery slope, who knows where it will lead?

Attorney General Beshear has announced his intent to appeal the circuit court’s opinion.  We commend him for doing so just as we previously commended him for intervening in the original action. Nothing less than the future of his office’s decades long role as a mediator of open records disputes may be at stake.

 

Bluegrass Beacon: Coal-hating chickens coming home to roost

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

How is it that residents in one of America’s most energy-abundant areas now face the real possibility that proposed hikes in their electric bills will result in a hard choice between staying warm next winter and making the weekly trek to the grocery store?

Rep. Chris Harris, D-Forest Hills, blames greed.

Harris is seeking legislative means to stop Kentucky Power, a subsidiary of American Electric Power (AEP), from getting approval from the Public Service Commission to raise rates by a whopping 16 percent – or more than $20 monthly on average residential customers – in his coal-country district next year.

Additionally, he’s sponsoring the first two pre-filed bills of the 2018 General Assembly which include a request that the PSC reconsider $100 million worth of previous rate-increase approvals for Kentucky Power.

Harris is outraged that the company is asking for such a huge rate hike when it’s (a) already had large increases approved in recent years, and (b) its parent company’s profits are soaring.

Both points are undeniably true.

  • The PSC has approved three increases totaling $104 million in rate increases plus $68 million in additional funding for costs related to projects like closing the Big Sandy power plant in Louisa, for which Kentucky Power customers are getting charged $16 million annually for 25 years to cover. The company’s newest request would add nearly $70 million in rate increases and additional charges to customers’ bills.
  • AEP’s stock prices have doubled during the past five years with dividends increasing for its stockholders each year.

Kentucky Power, in a release accompanying its latest rate-increase request, blamed a 14.2-percent decrease in electricity usage among its customer base just since September 2014 due to losing 2,000 residential and 450 industrial and commercial customers.

The company says it must charge more to cover the cost of continuing to provide electricity to the region.

“You can’t just shut down a third of a generation power plant” because there are fewer customers, Allison Barker, the company’s corporate communications manager, said in a phone conversation. “You either run the whole plant or you run none of it.”

Harris is right in that Kentucky Power, which, while privately owned, also has a monopoly on the electric business in a full slice of Eastern Kentucky – including some of America’s poorest counties – must justify all rate-hike requests.

But Barker says that while AEP has been profitable, each of the power company’s state-based divisions must pay their own way.

“We don’t get money from American Electric Power,” she said. “We pay for our own generation, distribution and transmission, and the way we recover costs is from Kentucky Power customers.”

While AEP has operating companies in other states, “you wouldn’t ask a Kentucky Power customer to pay for a project in Oklahoma; neither do Oklahoma customers want to pay for a project in Kentucky,” Barker explained.  

Harris should be equally outraged that what’s happening in Eastern Kentucky – and likely to occur in many other places across not only the Commonwealth but the nation – is directly connected to concerted efforts by the Environmental Protection Agency to target coal-fired power plants without regard to the devastating consequences for his constituents.

Bad-policy chickens whether in Harris’ district or districts nationwide don’t look good roosting in the form of higher electric bills, job losses or questionable supply of cool air for hot summers or heat for rough winters.

Only the economically naïve could believe that the shutdown of one victim of the EPA’s anti-coal campaign – a large unit at the Big Sandy Plant in Louisa, which consumed around 2 million tons of coal most years and employed 500 workers annually but was slated for shutdown by Kentucky Power in 2012 – wouldn’t yield future negative consequences.  

While Kentucky Power’s rate request must be vigorously debated, it should be done so against a backdrop of understanding that bad policies always produce appalling consequences.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Bluegrass Beacon: Objection! Beshear MIA in open-records dispute

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

Kentucky’s lawsuit against the manufacturer of OxyContin, heroin’s chemical cousin, stretches back more than a decade and involves three attorneys general.

It began in 2007 during Greg Stumbo’s stint as the commonwealth’s top lawyer, who, when he wasn’t busy indicting members of former Gov. Ernie Fletcher’s administration, was crowing about how “a billion dollars wouldn’t touch” what he could wring from Purdue Pharma.

Stumbo’s lawsuit charged the company lied to doctors about the addictiveness of the prescription painkiller, causing them to overprescribe it with devastating results, particularly among the poor in Eastern Kentucky.

After Purdue insulted the commonwealth with a $500,000 offer as part of a national settlement, Stumbo rightly decided that Kentucky should opt out and pursue its own case against the giant company, which, according to Forbes, has made $35 billion off the drug.

But he failed to deliver.  

A decade and a paltry $24 million settlement later – the amount agreed to by Jack Conway, Stumbo’s successor – the case continues in the courts over what, if any, information related to that agreement should be publicly disclosed.

Purdue is imploring the courts to honor an agreement made with Conway’s office to seal presumably damaging information about how it marketed its drug to doctors, patients and the public.

But First Amendment legal guru Jon Fleischaker, who’s representing STAT, an affiliate of the Boston Globe, rightly urged the Kentucky Court of Appeals to uphold Pike County Circuit Judge Steven Combs’ ruling unsealing the documents.

Combs, whose Eastern Kentucky court sits in a district where 51 people out of every 100,000 died from a drug overdose in 2014 and where a jury likely would render a judgement astronomically higher than the amount Purdue – which tried to get the case moved out of Pike County – agreed to pay, said the public has a right to “see the facts for themselves.”

Fleischaker agreed, arguing: “the public’s right to access cannot be controlled by two lawyers agreeing to keep certain records private.”

He also noted that trial courts possess “great discretion, as long as it’s not abused.”

Nothing prevents the court from releasing only information relevant to the public’s interest and right to know about this case while keeping documents revealing, say, sensitive proprietary information about Purdue under wraps.

While Purdue acted in a despicable manner, it’s a privately-owned company and courts operate on precedent.

If a private firm’s proprietary information – valuable only to competitors – is released in this case, it could have a chilling effect on companies’ eagerness to cooperate and make it tougher to litigate such cases in the future.

However, granting Pharma’s all-or-nothing demand would be an affront to Kentucky’s open records laws.

Fleischaker vigorously asserted that citizens have a right to know how this settlement was reached: “How did the court behave? How did the attorney general behave? Was it settled for too little or too much? You’re dealing with public offices and public trust in the system.”

No doubt, Conway was all too happy to stick a feather in his settlement cap at the expense of a big, bad drug company.

Plus, there has been no “I object!” from his successor Andy Beshear, who, prior to becoming attorney general, worked at the law firm representing Purdue Pharma. Beshear’s father, former Gov. Steve Beshear, now works at that same firm.

Andy Beshear’s office issued a statement claiming, “the terms of the settlement and court orders preclude the attorney general’s office from taking any position on the appeal.”

I object, your honors!

It’s understandable that the favorite position of Beshear – like most mediocre politicians – is to take no position.

However, nothing in the settlement prevents him from now advocating for the disclosure of public records, especially when the issues are so critical and implications so widespread.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

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.

 

 

 

 

 

 

Bluegrass Beacon: Holding public records hostage

Amye BensenhaverBy Amye Bensenhaver, Guest Columnist

Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

While employed as an instructor at the University of Kentucky’s School of Journalism, former hostage Terry Anderson recounted his five-year battle with federal agencies to obtain copies of public records under the Freedom of Information Act (FOIA) relating to the government’s efforts to secure his release from Hezbollah kidnappers during his nearly seven-year captivity.

Anderson described his bemusement when agency officials suggested he obtain signed releases from his former captors to expedite disclosure of the records he sought and protect his captors’ privacy. He shared his frustration when the records he received consisted almost entirely of newspaper articles and photos.

Although the content of the records ultimately disclosed to him was disappointing, Anderson’s protracted struggle illustrates, as the federal courts have observed, that “the value of information is partly a function of time.”

In the federal case recognizing this well-entrenched principle of records-access law, the U.S. Department of Justice postponed access to records requested under FOIA for up to 15 years.

The federal court decided that the delay was excessive, noting “Congress gave agencies 20 days, not years, to decide whether to comply with requests and notify the requesters.”

The court acknowledged that the Freedom of Information Act “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.”

In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden – real or imagined – and suggested that the agency present its concerns to Congress.

Kentucky’s public officials regularly complain about the three-day statutory deadline for responding to a request under the Open Records Act.

Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”

The Kentucky Attorney General’s office in a recently issued decision admonished Louisville Metro Government for failing to explain the reasons for a 45-day delay in producing records responsive to a series of broadly worded requests relating to a complaint of sexual harassment, hostile work environment and retaliation filed by a Louisville Zoo employee.

The attorney general found that the facts on appeal supported the delay in producing the records beyond the three-day statutory deadline based on proof that just one of the multiple requests involved more than 23,000 records.

Delays in producing public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level but are no less offensive to the principle that “the value of information is partly a function of time.”

Perhaps the solution to this and other problems lies in the statutory revision of the 40-year-old law.

Any such revision must be faithful to the law’s strongly worded statement of legislative policy favoring the public’s right to know but recognize the dramatic changes in the public-records landscape since the law’s enactment in 1976.

The newly created Bluegrass Institute Center for Open Government proposes revising the commonwealth’s open records and meetings laws in a new report, “Shining the Light on Kentucky Sunshine Laws.” We identify deficiencies in the laws exposed by successive legal challenges, suggest where revision is needed and make recommendations for change.

Our goal is to preserve what is best in the open meetings and records laws but encourage lawmakers to close loopholes in the laws that are frequently exploited by state and local agencies at the expense of the public’s right to know. Doing so will ease the burden on public agencies, reduce the likelihood of legal challenges, preserve administrative and judicial resources and, above all, promote the clearly stated policy of open, transparent and accountable government.

Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government at www.bipps.org. She wrote nearly 2,000 legal opinions regarding open records and meetings laws during a 25-year career as a Kentucky assistant attorney general. She can be reached at abensenhaver@freedomkentucky.com.

Jefferson County Public Schools denies Bluegrass Institute’s records request

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.

 

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.