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.”



Jefferson County Public Schools denies Bluegrass Institute’s records request


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.