Wednesday, May 31, 2017

Think tank, open-government expert propose changes to state meetings and records laws

By Al Cross
Director, Institute for Rural Journalism and Community Issues
School of Journalism and Media, University of Kentucky

A conservative, libertarian policy center has teamed up with a widely recognized expert on Kentucky's open-government laws to propose several major changes to the law, which haven't been greatly revised in more than two decades. The Kentucky Press Association has been wary of opening up the laws for fear the General Assembly would leave them weaker, not stronger.

Amye Bensenhaver, who for 25 years was the leading official interpreter of the open-records and open-meetings laws, presented her recommendations to the State Government Bar Association in Frankfort Tuesday. She is director of the new Center for Open Government created by the Bluegrass Institute for Public Policy Solutions, which plans to post the proposals online Monday.

The proposals include:
  • Making the state court system subject to the Open Records Act, reversing a state Supreme Court decision, which could take a constitutional amendment.
  • Strengthening the power of the attorney general's office, which makes initial decisions in open-government cases, to get confidential information from public agencies that have denied open-records requests.
  • Making texts, emails and other electronic documents created on public officials' private devices open records when they deal with public business.
Bensenhaver's recommendations fell into three categories: clarification of the laws, reconciliation of laws that may be in conflict, and modernization to keep up with recent technologies. In describing them, she took obvious pleasure in giving her personal opinions, something from which she was restrained as an assistant attorney general.

Clarification: The Supreme Court, citing the constitutional principle of separation of powers, ruled in 1978 that the General Assembly couldn't apply the 1976 Open Records Act to the state court system.

The system, overseen by the court, has generally observed the law in most cases while making clear that its compliance is voluntary. "They're not even accountable for monies they receive out of the General Fund," Bensenhaver said. "There may be some core functions" that need to be exempt, but not the spending of public dollars, she said.

When a public agency denies an open-records request, the requester can make a no-cost appeal to the attorney general. The law says the attorney general can request copies of the records to help decide the issue, but must not disclose them. The law does not say explicitly that the agency must provide the records, but that is its clear intent, Bensenhaver said.

The University of Kentucky has refused several times to give the attorney general records for review, saying other laws allow it to do so. Bensenhaver said the law should be rewritten to let the attorney general "declare that an agency’s refusal to comply with his request for additional documentation constitutes agency failure to meet its statutory burden of proof and to find against the recalcitrant agency on that basis alone."

When it comes to the Open Meetings Act, one problem is "serial meetings" of less than a quorum of members who discuss public business and collectively amount to a quorum of an agency board. The law says any such series of meetings "held for the purpose of avoiding" openness is subject to the law, but allows meetings "to educate the members on specific issues. Typically, members say they didn't intend to circumvent the law or say such meetings were only educational, so the law is "kind of limp," Bensenhaver said.

She noted that UK trustees held a series of such meetings on the university budget. She asked, "What could be more interesting to the public, as tuition rates rise?" and recommended that the General Assembly should redraft the law "to ensure that the purpose supporting its enactment is not defeated."

One of the vaguer open-government laws is the one that applies the Open Records Act to any "body" that gets from state or local government at least 25 percent of the money that it spends in Kentucky. In 2012, the General Assembly said that rule applied to "any fiscal year" but exempted money paid for goods or services obtained through public, competitive bidding.

"What they did in 2012 was quite unfortunate," Bensenhaver told the state-government lawyers. "It allows an awful lot of big fish to get through the net." She made no specific recommendation for a change, but said legislators need to decide the intent of the original law "and develop language that achieves that goal" and allows the attorney general to get information to determine whether an entity has reached the 25 percent threshold.

Jim Waters, president of the Bluegrass Institute, said he has had discussions with legislators about the 25 percent law, which has been the topic of unsuccessful legislation in the last two sessions, and the extension of the records law to the court system.

Reconciliation: There are gaps, overlaps and conflicts between the Open Records Act and the Open Meetings Act. Bensenhaver said the General Assembly needs to reconcile them.

For example, a public agency board may discuss a proposed budget in an open meeting but refuse to release copies of the budget on grounds that it is a preliminary document. (City councils can't do that, under a 2010 records decision obtained by KPA for the Midway Messenger.) Another issue is employee performance evaluations, which have some legal protection but must be discussed in open session.

Bensenhaver said the legislature should reconcile the conflicts "in a manner that promotes responsible agency discussion and meaningful public scrutiny," with an open-meetings exception for discussion of exempt records. "Where the public’s right to know outweighs any actual need for confidentiality, the laws should permit access to records and discussion of records," she said.

Bensenhaver also called for repeal of "a very dangerous provision" of the meetings law, which arguably exempts most agencies from the requirements for going into a closed session. She said the courts have ignored the conflicting laws, and the attorney general's office has construed them "in a manner that avoids consequence," but the laws "could be used to justify unannounced closed sessions and final action in closed session."

Also, Bensenhaver said the open-meetings law needs to place the burden of proof in an appeal on the public agency, just as the open-records law does. "The agency has a monopoly on the facts but is not required to sustain its action by proof (such as sworn affidavits of members)," she wrote.

Modernization: Aside from adding references to email for correspondence, Skype for teleconferences and smartphones and scanners to "reproduce records onsite," Bensenhaver identified two major areas that need better definition to keep up with modern technology that has caused agencies to create many more records.

She said the legislature needs to better define "unreasonable burden" on an agency as an excuse to deny a records request. She said the 1976 General Assembly "couldn't envision requests that would involve millions of records."

Bensenhaver called for reversal of a "poorly reasoned" open-records decision by Jack Conway on his last day as attorney general in 2015, exempting records created by private devices such as smartphones. "That decision would not withstand judicial scrutiny for one minute," she said. "You're essentially saying, do all your business on private devices, and don't even discuss it at a public meeting."

Bensenhaver wrote, "These records are public records . . . despite Kentucky officials’ reluctance to acknowledge their status as such. This reluctance poses the gravest threat to open meetings, open records and government accountability generally."

Finally, Bensenhaver said penalties for violating open-government laws need to be "enhanced," by making an agency pay the requester's legal fees and court costs if the agency loses at the attorney general's office and again in circuit court. "Such a revision would discourage agencies from initiating bad-faith appeals and encourage citizens to pursue their rights under the open meetings and open records laws with less fear of incurring financial hardship should the dispute go to court," she wrote.

Bensenhaver was asked whether opening up the laws could lead to the attorney general's office losing its quasi-judicial powers, since Democratic Attorney General Andy Beshear is at odds with Republican Gov. Matt Bevin and Republicans also control the House and Senate.

She said the best solution would be to keep such reviews out of any political office, and noted that some states have created independent authorities to make initial rulings on open-government appeals.

The newest of those is the Iowa Public Information Board, which has nine members appointed by the governor and confirmed by the Senate. No more than three members represent the news media, and no more than three represent local governments. The members serve staggered four-year terms, and are balanced by party and gender.

Bensenhaver resigned from the attorney general's office last summer, saying she was put "under considerable duress" by Beshear and his lieutenants, "the last straw" being a reprimand for talking to a journalist writing a story on the 40th anniversary of the records law. She said her difficulties reflected an increased politicization of the AG's open-government role under Beshear and Conway.

Wednesday, November 9, 2016

UofL Foundation wrongly claimed it had no records responsive to request, violated law

The University of Louisville Foundation violated the Open Records Act when it improperly claimed it had no records that were requested.

On Sept. 12, Attorney General Beshear issued an opinion in the appeal of an Open Records denial in In re: Brendan McCarthy/University of Louisville Foundation, Inc., 16-ORD-204.

McCarthy requested documents about funds used by the foundation placed outside the continental United States on Dec. 17, 2015.

The foundation responded on Dec. 23, 2015 denying it had possession of requested records. McCarthy appealed on Aug. 10, 2016.

In the appeal, McCarthy showed that the foundation’s tax forms illustrated extensive investments in Europe, Central America and the Caribbean, and that the duty under the Open Records Act is not relieved by putting such records in another location.

In its appeal, the foundation cited KRS 61.878(1)(c)(1), an exemption for records that are confidential and proprietary, which would, if made public, would be unfair commercial advantage. It thereby gave records that were redacted pursuant to the cited section of the Act.

The attorney for the foundation argued since records were given, though redacted, the appeal was moot, but Beshear felt differently since the records were not released in their entirety.

Beshear found that the initial response of the foundation having no responsive records was a violation of the Open Records Act. For the redactions and exemption claim, Beshear’s office has not received a description of the redactions or an explanation of how the exemptions apply to the redactions.

Due to the failure to properly explain the exemption as to the redactions, Beshear found that the foundation failed to meet its burden under the Open Records Act and its handling of McCarthy’s request was a violation as well.

UofL Foundation failed to meet burden on illustrating why it was proper to deny a request

The Attorney General's Office issued two opinions on Aug. 5 relating to the University of Louisville Foundation's lack of response to a request for documents. 

First, In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, 16-ORD-164, The Kentucky Center for Investigative Reporting’s managing editor Brendan McCarthy requested attestation and disclosure forms from people associated with the University of Louisville Foundation and ethnic and financial disclosure forms as well on Feb. 8, 2016. 

On March 2, the foundation denied McCarthy’s request. The foundation asserted that it was a burdensome request because it was overly broad and involved a lot of work to find records that were scattered and covered more than 46 years. 

McCarthy resubmitted his request, seeking the documents from the past four years. McCarthy emailed the foundation’s records custodian, Kenyatta Martin, on April 21 and May 11 to figure out the status of his amended request. On May 23, McCarthy spoke with the foundation’s counsel, David Saffer, who asked for a recap to help track it down. He followed up four days later, then all communications ceased. 

The foundation still contended the amended request was burdensome and denied the request. By not elaborating on why the four-year period was still burdensome, compared to the initial 46-year request, the attorney general found that the foundation did not fulfill its burden in proving, by clear and convincing evidence, that producing the records was unreasonably burdensome, in able to deny the request. 

Beshear also stated that the foundation failed to fulfill the three-day response requirement set forth in the law, taking a month to respond to the initial request and never responded to the amended four-year request. 

The AG cites Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008) to show that the Kentucky Supreme Court recognized that there is a high burden of proof on an agency that is refusing to comply with an Open Records Request, as that agency must show through clear and convincing evidence that the request is unreasonably burdensome. Since the Foundation presented no evidence as to why the four years was unreasonably burdensome, the Foundation violated the Act both in response time and substantially by not meeting its burden of proof. 

In In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, 16-ORD-165, Beshear quickly reiterated the facts, based on 16-ORD-164, and found that the foundation again violated the Act by not replying to the initial Feb. 8 request in a timely manner, by taking nearly a month to respond. He also stated that it did not meet the burden of proof in showing that the request was too burdensome to respond to. 

Energy Cabinet withheld records based on incorrect exemptions

The Energy and Environment Cabinet violated parts of the Open Records Act by withholding internal emails and parts of emails based on incorrect exemptions.

On Sept. 21, 2016, the Office of Attorney General Andy Beshear issued an opinion in the Open Records appeal of In re: Cathy Goguen/Energy and Environment Cabinet, 16-ORD-208.

Goguen submitted an Open Records request to the cabinet on June 24 stating a previous request had not been received by her in regard to a complaint and report related to the Americans with Disabilities Act.

Five days later she sent a follow-up email to the cabinet requesting a status update on the requested documents relating to email records or reports to a Nina Hockensmith from various persons.

On June 29, the day of the follow-up email, the cabinet responded. It stated it was still conducting search for records, stating officials anticipated having the records obtained and ready by July 8. Immediately Goguen replied that her first request was in May and she had not received that request yet, and added to her request.

Goguen also appealed to Beshear’s office on June 29 as well, stating the records were not provided in a timely manner and it had not released all records.

On July 11,  the cabinet said it had responded to Open Records request from Goguen 11 times since April in relation to 19 requests, with 312 documents provided to her since April. It also stated that it produced records to Goguen on June 30, and thus requested the appeal be dismissed as moot.

The cabinet attached an email dated June 30 to its response, where it stated that documents would be provided via a secure internet-based website where Goguen must log in to view the non-exempt records, but that 115 were exempt under KRS 61.872(1)(i) and (j), which are the internal and attorney-client privilege exceptions.

Other emails were attached to the response.

Beshear’s office requested to view the emails in question and asked the agency if any final action had been taken. The cabinet responded with the documents and noted that a letter from Hockensmith stated there was no ADA violation and no further action would be taken.

After reviewing emails claimed to be exempt under the internal-preliminary exemption, Beshear found that many of them consisted solely of factual communications, rather than recommendations or opinions. Thus they do not fall within the exemption, and the cabinet violated the Open Records Act in withholding them.

Beshear found that the parts of the emails that contained legal advice were exempt, but the emails with information that was available before being sent to the attorney were not exempt as privileged materials, again meaning the cabinet violated the Open Records Act.