Wednesday, September 23, 2015

Procedural violations of Ky.'s open records act

A public agency can violate Kentucky's open records act in a variety of ways, some substantive and some procedural. This post will focus on different types of procedural errors public agencies can make in responding to open records requests. 

The methods by which a public agency can lawfully deny an open records request are outlined statutorily. (See KRS 61.870 - 61.884). 

The recent opinion in Art Anderson/Woodford County Emergency Medical Services, 15-ORD-168, provides an example of a procedurally deficient response. There, the Woodford County public agency issued a timely response (within three days, as required by statute), but its response to a request concerning an ambulance run was otherwise deficient.

The attorney general's office explained in Anderson that KRS 61.880(1) provides the procedural requirements for responses under the act. Some of those requirements are as follows:

  • Upon receipt of a request, a public agency shall determine within three days (excepting Saturdays, Sundays, and legal holidays) whether to comply with the request.
  • The public agency shall then notify the person making the request within that three day period of its decision. 
  • Further, a response that denies, in whole or in party, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
By neither citing its statutory authority nor providing a brief explanation of how that exception applied to the records, the Woodford County public agency failed to satisfy the act's requirements. 

(Nonetheless, nondisclosure of the requested records would be permitted based on a different statute, which prohibits disclosure of ambulance run reports unless appropriate authorization is given. The attorney general's opinion explained that that statute has been incorporated into the Kentucky Open Records Act.)

Further, in Melinda Gamble Lovern/University of Kentucky, 15-ORD-174, the attorney general's office found that UK had subverted the intent of the open records act by its delayed processing of records.

There, Gamble had requested certain documents from the university, and the university had not provided the records promptly and kept delaying disclosure. 

The attorney general's office recognized that a reasonable delay was warranted, given the voluminous nature of the requests and the necessity to make proper redactions, but that the university had subverted the intent of the act since its actions did not allow Gamble to have "timely access" to the records that she had requested. 

Viewed from this perspective, Anderson and Gamble serve as reminders to public agencies that they must be aware of the procedural requirements for any response they issue to requests for public records. Responses must be timely, and any reason for denial must be statutorily supported. 

Saturday, September 12, 2015

Not letting the exceptions swallow the rule

Under Kentucky's open records law, the basic policy "is that free and open examination of public records is in the public interest." As such, the General Assembly has asserted that the exceptions to the rule are to be construed strictly. (See KRS 61.871). 

This policy means that openness is to be the standard, and that reasons for non-disclosure are to be the exceptions to the general rule. This is to be true "even though such examination may cause inconvenience or embarrassment to public officials or others." (See KRS 61.871). However, the exceptions to the broad policy of openness must bend to other interests in a variety of situations. 

Recently, the attorney general's office addressed whether certain records held by a county's circuit court clerk should be subject to the state's open records laws. 

In re Orenthal Mitchell/Jefferson Circuit Court Clerk, 15-ORD-156, Mitchell appealed to the attorney general's office after the Jefferson Circuit Court Clerk was unresponsive to his request for a copy of child support orders, visitation and custody orders, and judgments entered by Jefferson County in reference to him. 

In its opinion, the attorney general's office adopted analysis from one of its previous decisions and found that records in the custody of circuit and district court clerks are properly characterized as court records. As such, the Open Records Act does not apply to those types of records. Further, the opinion noted that the attorney general "has long recognized that neither circuit nor district court clerks are subject to the provisions of the Open Records Act." 

Though public policy favors openness and disclosure of public records, Kentucky law recognizes that not all records must be subject to the strictures of the open records law for a variety of reasons. Here, the attorney general's office stressed that, as it had stated in its previous opinion, "[s]imply stated, disputes relating to access to court records must be resolved by the court." 

Friday, August 21, 2015

Defining 'public agency' under Kentucky's open meetings, records laws

One of the issues that can arise under the state's open meetings and open records laws is that an entity can claim that it is not a public agency. A determination of a body's status as a public agency affects whether it must comply with the state's openness laws. 

Thus, defining what is a public agency under state law is an important topic for understanding the requirements placed on such agencies in Kentucky.

KRS 61.805 defines public agency for open meetings purposes, and KRS 61.870 defines the term for open records purposes.

The following list includes the entities Kentucky's open meetings law defines as public agencies. Though the statute can be a bit dense to read, setting out the statute in full provides a basis for understanding two recent decisions of the attorney general's office that addressed whether bodies are public agencies. 

Under Kentucky's open meetings law, a "public agency" is defined as:

  • (a) every state or local government board, commission, and authority; 
  • (b) every state or local legislative board, commission, and committee;
  • (c) every county and city governing body, council, school district board, special district board, and municipal corporation;
  • (d) every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
  • (e) any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
  • (f) any entity when the majority of its governing body is appointed by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a “public agency,” a state or local officer, or any combination thereof;
  • (g) any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and
  • (h) any interagency body of two (2) or more public agencies where each “public agency” is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection. 
In re: Robert Barker/Bourbon County Board of Assessment Appeals, 15-OMD-154, the attorney general's office found the county board had failed to refute Barker's allegation that it was a public agency under the state's open meetings act.

There, Barker had appealed to the attorney general's office after he felt the county board failed to adhere to statutory requirements for a meeting in June, at which his property tax assessment appeal was heard. 

In its analysis, the attorney general's office stated that it could "find no express or implied exclusion for the board from the requirements of the Open Meetings Act." The attorney general's office also could not locate any statute or any administrative regulation that addressed "the board's public hearing process or its exclusion from the requirements of the Open Meetings Act." 

Thus, the attorney general's office sought to determine whether the county board fell into a definition of public agency provided under the open meetings law and found that:

[t]he Bourbon County Board of Assessment Appeals is a local government board that is created pursuant to state statute whose governing body is appointed by a public agency, the Bourbon County Fiscal Court, and two local officers, specifically, the county judge/executive and the mayor.  It therefore falls squarely within the definition of the term “public agency." 
As a public agency, the county board had to comply with the open meetings act's requirements, and it failed to do so when it excluded Barker from portions of its meeting without citing a statutory basis for its actions, the attorney general's office found.

Similarly, in re: Jim Waters/Kentucky Board of Education, 15-OMD-155, the attorney general's office found that a committee of the board of education was a public agency under Kentucky's open meetings law.

There, Waters, president of the Bluegrass Institute for Public Policy Solutions, challenged the board of education's denial of his open meetings complaint. In his complaint, Waters asserted that a committee of the board had failed to observe statutory requirements.

In its review, the attorney general's office noted that "public agency" is broadly defined under Kentucky law. Since the committee had been created by the board and was charged with a specific task---that of managing and narrowing the search for a firm to help the board find a new commissioner of education---the attorney general's office agreed with Waters' characterization of the committee as a public agency.

In both of these decisions, a finding by the attorney general's office that an entity was a public agency had ramifications for what was expected of the body under Kentucky law.

The key point is that if a particular group is found to be a public agency, it must comply with the statutory requirements of the state's open meetings and open records laws.

Thursday, August 13, 2015

Keeping an eye on Kentucky's public agencies

The aim of this blog is to provide citizens of Kentucky with analysis of open meetings and open records decisions by the state's attorney general.

Every state in the nation has laws that seek to provide the public with access to certain information and documents of governmental agencies. These laws are sometimes labeled "sunshine laws" because they expose what public officers or departments might otherwise prefer to keep hidden or in the dark.

Kentucky's legislature has explained, through statute, that the public policy of the state's open records law is based on the idea "that free and open examination of public records is in the public interest." As such, the exceptions allowed under the law for types of records that need not be disclosed are to be strictly construed. (See KRS 61.871).

In Kentucky, individuals who feel that a public agency has not complied with the state's open meetings or open records laws may appeal to the attorney general for an opinion on the matter. If the individual or agency is not satisfied with the attorney general's decision, an action may be filed in the appropriate circuit court.

A helpful overview of the state's open meetings and open records laws from a public agency's perspective is available on the attorney general's website. A guide for individuals is also available. Further, a video that the Scripps Howard First Amendment Center produced for public officials is available here.

Public meetings and public records opinions are usually issued on a weekly basis. In order to remain timely, new posts will be added to this blog shortly after such opinions are issued.

The following decision was released Aug. 6, 2015, and provides an example of the types of issues the attorney general's office reviews in relation to Kentucky's open meetings and open records laws.

  • In re: Kelly Wiley/Cabinet for Health and Family Services, 15-ORD-144, the attorney general found that the Cabinet had subverted the intent of the open records act by trying to impose a $75 per hour fee on the retrieval of requested documents.
    • Under Kentucky law, a "public agency may 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." (See KRS 61.874). 
    • Though the record request had not been denied in this case, the individual was still permitted by state law to appeal to the attorney general's office. (See KRS 61.880). 
    • In the opinion, the attorney general's office found that "[i]n attempting to impose an excessive fee for the retrieval of documents rather than charging the cost of reproduction, CHFS subverted the intent of the Open Records Act short of denial of inspection."
      • The attorney general's office cited several of its former opinions, which recognized that public agencies may charge for costs of reproduction but not for costs of retrieval. 
This blog will not seek to discuss every opinion of the attorney general. Instead, more attention will be given to opinions that involve well known public agencies, such as those affecting institutions of higher learning or state cabinets, or opinions whose reasoning demonstrates a policy in favor of disclosure. Decisions by Kentucky state courts will also be reviewed when applicable.

From time to time, this blog may also include posts related to the open meetings or open records decisions of other states or of requests made under the federal Freedom of Information Act.

Monday, September 8, 2014

UK properly denied certain requests by CNN,
but it erred in denying others

The University of Kentucky properly denied certain requests from CNN relating to the university’s pediatric cardiothoracic program, but it erred by not providing the news network with sufficient information about records that the university claimed did not exist, the attorney general said in an August 6 opinion.

The opinion, In re: CNN/University of Kentucky, concerned requests that CNN Senior Medical Correspondent Elizabeth Cohen made to the university on February 13 and March 27, 2014.

Cohen requested records relating to UK’s pediatric heart surgery program.

The university properly made two denials, the attorney general said.

First, the university was not required to provide “the raw data consisting of the total volume of surgeries, number of deaths, and number of survivors related to its pediatric cardiothoracic program, as those numbers are less than five.”

The university had previously disclosed mortality rates and feared that disclosing the raw data could allow individual patients to be identified, and the attorney general found that the releasing of this data was precluded both by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and by KRS 61.878(1)(a).

Both of these laws, the opinion notes, share an aim of protecting patient privacy, and the disclosure of the raw data sought by CNN could allow individual patients to be identified.

The university relied on guidelines of the National Center for Health Statistics in denying the request.

These guidelines, according to the opinion, prohibit (1) the disclosure of quantity figures that are less than five and (2) the disclosure of numbers greater than five if such disclosure could result in numbers less than five being derivable through subtraction or other calculation.

The university argued that the guidelines are “helpful in determining whether there is a reasonable basis to believe that an individual patient can be identified,” the opinion stated.

The attorney general agreed and held, using the guideline’s “less than five” baseline, that “a reasonable basis exists for UK’s nondisclosure of this raw data.”

Second, the attorney general said the university properly withheld reports submitted to it by the Society of Thoracic Surgeons “because the records were compiled and maintained for scientific research.”

The attorney general relied on KRS 61.878(1)(b), which provides an exception to disclosure for “[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research.”

The attorney general noted that UK had said the research was disclosed to it “‘with the explicit understanding that the University would not disclose the information to others.’”

Upon reviewing the reports, the attorney general said that the introductory pages did contain a number of statements of confidentiality and restrictions on disclosure by the university without the Society’s permission. Because of this, the attorney general found that UK did not err by denying this part of CNN’s request.

The university did err, however, by failing to provide CNN with sufficient information about certain withheld records to permit CNN the opportunity to dispute those records’ claimed nonexistence.

According to the opinion, the university “denied CNN’s March 27 request for collated mortality rates, and raw numbers of the total volume of surgeries, number of deaths, and number of survivors for the program from January 2006 to December 2010 and categorized by the five ‘STAT’ categories, nine named procedures commonly treated as quality indicators, and, for the same period but extending to October 2012, three identified procedures.”

The university denied the request, in part, because it claimed the records were nonexistent, the opinion stated.

While the university was correct in that it has no obligation to create a record that does not exist, the university failed to identify which of the requests it would not honor on that basis, the attorney general said.

The university’s actions also did not satisfy a standard concerning open records requests recently explained by the Kentucky Supreme Court, the opinion stated. In City of Ft. Thomas v. Cincinnati Enquirer, the Kentucky Supreme Court said an agency must be held to its burden of proof by a sufficient factual showing to justify an exemption.

Here, UK failed to specify which requests would not be honored on the basis of the claimed records’ nonexistence, according to the opinion.

“While it cannot produce a nonexistent record, and is not legally obligated to create one, UK is obligated to provide CNN with sufficient information about the nature of the record or records to which access was denied based on it[s] or their nonexistence to permit CNN ‘to dispute the claim and the court to assess it,’” the attorney general said.

An Open Meetings Act violation must occur
before the attorney general can address it

The attorney general will not address a violation of the Open Meetings Act that is anticipated but has not occurred, according to an August 8 opinion.

The opinion concerned an appeal by Michael Murphy in regard to the Glencoe City Council’s response to his July 1, 2014, written complaint, which alleged violation of the Open Meetings Act based on the council’s actions regarding non-agenda topics.

The attorney general found that the city had violated certain provisions of the act by “discussing and acting on non-agenda topics” at a June 16 special meeting.

According to the opinion, the council did not dispute the allegation and agreed to Murphy’s proposed remedy of conducting all of its special meetings and committee meetings “strictly in accordance” with the provisions of the relevant Kentucky statutes.

However, the attorney general cannot address potential violations of the act.

While Murphy may have expressed concern about the possibility of future violations, his proper remedy is to submit a complaint to the council’s presiding officer if he questions whether a violation has occurred and pursue an appeal if necessary, according to the opinion.

“The Attorney General cannot prospectively address violations of the Open Meetings Act that a complainant anticipates but that have not occurred,” the opinion stated.

State violated Open Records Act
with conditional use agreement

The Cabinet for Health and Family Services violated the Open Records Act by making the release of information requested by USA TODAY conditioned on a use agreement, according to an attorney general opinion released August 13.

The opinion, In re: USA TODAY/Cabinet for Health and Family Services, concerned an appeal by USA TODAY after the cabinet agreed to comply with a request, but then made the release of information conditioned on a reporter completing a use agreement that would not have allowed her to name healthcare providers found within the information.

USA TODAY reporter Alison Young had requested “access to and an electronic copy of data contained in the state’s public use dataset of hospital inpatient discharge data for calendar years 2012, 2011 and 2010,” according to the opinion, “as part of a major examination of rising rates of maternal morbidity and mortality in the United States.”

Young sought release of the data without any restriction on being able to name the hospitals or healthcare providers identified in the database by “provider ID,” according to the opinion.

The use agreement requested by the cabinet would have prohibited USA TODAY “from using or permitting others to use the data ‘to learn the identity of any provider that may be represented in the data.’ ”

Young had sought “de-identified” data, meaning that information relating to individual patients had been removed, and USA TODAY argued that the cabinet’s interpretation of the relevant Kentucky statute was “nonsensical” because it would mean any person could access the public information requested but then be prohibited from discussing or otherwise publicizing the same information.

The cabinet maintained that a state regulation required the person requesting the data to agree to the use agreement, but the attorney general said that the cabinet exceed its statutory authority by conditioning release of the information on the use agreement and that the conditional release violated the Open Records Act.

Kentucky law requires a data-use agreement only when the cabinet releases patient-specific data, the attorney general said, and nothing permits the cabinet “to prohibit a requester from re-releasing the names of providers contained in the datasets.”

While the privacy of individual patients must be protected, the relevant Kentucky statute and regulation “are not concerned with shielding providers or hospitals from public scrutiny,” the attorney general said.

Judge's entry and exit from county parking garage not subject to Open Records request

The Kenton County Fiscal Court did not violate the Open Records Act by redacting the times of entry and departure of a judge from a county parking garage, the attorney general held August 13.

The decision came regarding a matter between the fiscal court and James A. Dietz.

Dietz appealed the fiscal court’s partial denial of his request for records concerning the frequency of use of the county parking garage by Kenton County Family Court Judge Lisa O. Bushelman for calendar years 2012 and 2013.

The fiscal court provided Dietz with a 45-page parking system activity report, but it redacted the identification number associated with the judge’s key card and the times she entered and departed the garage without explanation, according to the opinion. The fiscal court did not redact the dates on which the judge’s key card had been used.

Dietz questioned the fiscal court’s omission of statutory reliance for the redactions, the opinion stated, and he argued that he was not concerned with the identification number, but instead wanted to see the times Bushelman used the garage.

“The time information may … indicate to the public whether its judges, who are public servants compensated by public tax dollars, are spending a sufficient amount of time performing their jobs on the days they park their cars in the courthouse garage,” Dietz said in subsequent correspondence, according to the opinion.

Dietz cited attorney general opinions in which the public’s right of access to records concerning public employee time and attendance had been affirmed, the opinion stated.

The fiscal court cited opinions in which the attorney general affirmed public agency denials of requests because the production of the records would pose an “unreasonable burden,” meaning it would compromise a significant governmental interest. The fiscal court also noted the safety concerns of releasing the exact times of a judge’s travels.

As a preliminary matter, the attorney general said the fiscal court had violated a provision of the Open Records Act because its initial response to Dietz did not include the statutory authority for the partial denial. However, since the fiscal court had acknowledged this in subsequent correspondence, the attorney general addressed it no further.

The attorney general then addressed the fiscal court’s argument concerning the identification number of the judge’s key card.

Since Dietz had not requested this information, the attorney general found “that the fiscal court failed to make a clear and convincing showing that disclosure of the parking system activity reports, including the times of entry and exit, but excluding the key card identification number, would necessitate an immediate revision of policy or practice.”

Concerning the redaction of the times of the judge’s entries and exits from the garage, the attorney general found that the fiscal court had not violated the Open Records Act for its partial denial of Dietz’s request.

The attorney general noted that while requests for time spent working by public servants is generally disclosed, the times of a judge’s use of the parking garage “would not constitute an accurate measure of the judge’s time spent in public service.”

Weighing the public’s desire to know that a judge is performing her public service and the judge’s interest in personal safety, the attorney general found the judge’s interest tipped the balance and the fiscal court had not violated the Open Records Act for its redactions.

“[U]nder the particular facts and circumstances presented, the public’s right to know that Judge Bushelman, a public servant, is properly executing her statutory functions does not outweigh the significant privacy interest Judge Bushelman possesses in her own personal safety and security,” the attorney general said.