New attorney general's opinions on open records cases issued

The following Open Records Decisions were issued by the Office of the Attorney General March 23-26:

1. 09-ORD-052 (Woodford County)
Kentucky Community and Technical College System properly withheld copies of exams containing questions that might be reused, as well as interview notes made during investigation of a student grievance, since the notes had not been adopted as the basis of final agency action. The notes, however, might be accessible under FERPA.

2. 09-ORD-053 (Franklin County)
Department of Public Advocacy did not substantively violate the Open Records Act when it did not possess a copy of the requested toxicology report.

3. 09-ORD-054 (Harlan County)
City of Cumberland subverted the intent of the Open Records Act by disclaiming custody and control of employee timesheets while those timesheets were "boxed up for the auditor," and, consequently, failing to afford requester timely access to those records.

4. 09-ORD-055 (Woodford County)
Having reviewed the legal invoices in dispute, this office finds that Midway was justified in redacting information withheld on the basis of the attorney-client privilege codified at KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l), as the remaining material reflects the general nature of the services provided and the associated fees. The city is not required to produce nonexistent records or "prove a negative" in order to refute a claim that certain records exist nor is City required to comply with a request for information, or compile a list or create a record for the purpose of satisfying a request.

2009 legislature does ‘very little damage’ on news organizations' issues

The 2009 session of the Kentucky legislature did “very little damage” on issues of interest to the state’s newspapers and broadcast media, according to David Thompson, executive director of the Kentucky Press Association.

Thompson will report to KPA members that the General Assembly passed one bill that KPA lobbied against during the session that concludes March 27. That bill imposes a 6 percent sales tax on website subscriptions. However, that will affect only about 10 percent of KPA members, he said, because most newspaper websites are free. Gov. Steve Beshear has signed the legislation.

“You win some, lose some and some get shut out,” Thompson said in an interview with the Kentucky Open Government Blog.

He noted that several bills that both KPA and Kentucky Broadcasters Association were backing did not get passed this session, but most will be brought up again in 2010. That includes a bill to set access rules for journalists at polling sites on election day. Though journalists have a constitutional right to such access, Thompson said, under current vague privacy laws election officials sometimes block them from the voting room or prevent pictures from being taken. The bill failed not because of opposition, but because of time constraints, Thompson said.

One bill that the news media organizations opposed was successfully blocked – a proposal to forbid broadcast of 911 call recordings. “But it will be back again next year and every year,” Thompson said. The bill’s sponsor, Sen. John Schickel, has also said he will keep trying.

“They did very little damage,” Thompson summed up. “And that’s our approach – more defense than offense.”

Federal government says it will be more open

U.S. Attorney General Eric Holder has ordered all federal agencies to be more open in the release of information, reversing Bush-era policies and following the directive of President Barack Obama.

Holder issued a memo to agency heads citing the administration’s “commitment to open government,” and telling them to administer the Freedom of Information Act with a “clear presumption: In the face of doubt, openness prevails.”

“An agency should not withhold information simply because it may do so legally,” Holder wrote. “I strongly encourage agencies to make discretionary disclosures of information.” He added that if an agency decides it cannot make full disclosure of requested information, it must consider making partial disclosure.

Holder rescinded rules set by the Bush administration that arguably encouraged the withholding of information. He substituted rules against withholding unless there is foreseeable harm or disclosure is prohibited by law. He also ordered that the new rules be applied to existing FOIA requests, of which there is a backlog.

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public's ability to access information in a timely manner,” Holder said. “The American people have the right to information about their government's activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The memo was issued during Sunshine Week, the annual celebration of open government and freedom of information laws. For the full text, click here.

AG says city council broke open-meetings law

The following decisions on open records and open meetings were issued by the Office of the Attorney General March 16-20:

09-OMD-051 (Harlan County)
The Cumberland City Council violated the procedural requirements of the Open Meetings Act by failing to respond to written complaint alleging a Jan. 30 secret meeting of a quorum of its members or a series of less than quorum meetings where the members attending collectively constituted a quorum. If a quorum was present at a single, non-public meeting where public business was discussed, the council violated KRS 61.810(1). If council members collectively numbering a quorum attended a series of less than quorum meetings, the members' actions offended two of the three elements of KRS 61.810(2).

09-ORD-049 (Franklin County)
The state Personnel Cabinet’s original response to a request for designated information fields, including employee identification numbers, of all current Executive Branch employees, was procedurally and substantively deficient. On appeal, the Cabinet properly retreated from its position as it pertained to non-Merit System employees, and, upon submission of request for additional information, demonstrated a heightened privacy interest in employee ID numbers that warranted its invocation of KRS 61.878(1)(a) to support nondisclosure of those numbers.

09-ORD-050 (Franklin County)
The state Labor Cabinet improperly relied on KRS 61.878(1)(c)1 to withhold a private employer's records, because there was no evidence of proprietary or confidential information or unfair competitive advantage.

Open-meetings and open-records decisions have the force of law but can be appealed to circuit court. They are designated as OMDs and ORDs. Other opinions of the attorney general are designated as OAGs. For full texts of the decisions, see the Link of Interest at the bottom of the KOG Blog.

Electronic campaign filing bill may make it yet

A bill that would require statewide candidates to file campaign finance reports electronically is "not completely dead," and proponents are still hoping the House will take it up during the final two days of the legislative session.

Assistant Secretary of State Les Fugate told the Kentucky Open Government Blog that while House leaders had indicated they had no problem with Senate Bill 62, they had first told the Senate that there were too many amendments attached to get the bill voted on this session. But Fugate said the Senate then stripped off the amendments and sent it back as House Bill 325, so that all that it needs is House concurrence.

"We still have hope," Fugate said. Legislators will reconvene on March 26 for two days to complete their work for this session. House Speaker Greg Stumbo said this week that the House might open the agenda to include concurrence with Senate amendments to House bills.

The Lexington Herald-Leader, in an editorial Thursday, called for passage of the bill. "It's time to do better," the paper said. It noted that, except for the lack of electronic filing, Kentucky had been given "decent marks" by the Campaign Disclosure Project, which monitors and grades state governments on transparency. Similar bills have been passed both House and Senate in previous years, but not in the same session.

Court system heading toward more openness, perhaps even in juvenile courts

Leaders of Kentucky's court system are discussing major rules changes to make the courts more transparent, including proposals to make juvenile court more open.

The move is part of a broad plan that could put all court expenditures on line, provide better Internet access to court records and form a citizens’ commission to give the Supreme Court advice on open-courts matters, said Jason Nemes, outgoing head of the Administrative Office of the Courts. The changes would be up to the Kentucky Supreme Court.

Nemes said Chief Justice John Minton Jr. has asked judicial experts to look again at a bill introduced in the 2008 legislative session that would have given judges more discretion in opening child-protection proceedings, as well as other changes to make juvenile courts more transparent. That could include recommendations on opening more juvenile records and giving judges more discretion to open juvenile proceedings.

"There's lots of different ways to do it," Nemes said, noting that some states treat proceedings and records differently.

The Kentucky Press Association unsuccessfully sued in federal court in 2004 to open juvenile courts. The U.S. Court of Appeals for the Sixth Circuit ruled in 2006 that state law already allows judges to grant access to "interested parties" and that judges could admit journalists as interested parties.

A Supreme Court rule detailing how judges could do that would be "a giant step," said John Nelson of Danville, executive editor of The Advocate-Messenger and KPA president when the suit was filed. "Courts have assumed that part of the statute means that they can’t let anybody in except the parties who are affected," he said.

Nelson said the General Assembly took "a baby step" last year in opening docket information on juveniles charged with violent crimes and that an additional small step could be further opening of juvenile dockets.

The Supreme Court ruled in 1978, two years after the Open Records Act was passed, that it did not apply to court records because the legislative branch could not tell the judicial branch what to do. Most court records are generally open as a matter of policy, but Minton wants the court to change the rules as part of what his chief of staff, Katie Quitter, called “a general movement in state government toward transparency.”

Quitter said Minton had been persuaded in part by similar moves in the governor’s office and by Nemes, who will leave his job at the courts' administrative arm on April 3.

“I’m a huge proponent of openness in government,” Nemes said in an interview. He said his office is working on the draft rules, which will be submitted to the Judicial Council, a panel of judges, lawyers and legislators who advise the Supreme Court.

Minton said in an interview that he recently reactivated the council, and "I just thought it would be a good forum in which to vet the whole issue of openness, which I think needs to happen." He said any changes are up to the seven members of the Supreme Court, but "In order for us to be credible, for people to have a basis to trust us, we've got to be more open."

The new rules could apply to Supreme Court agencies, including the Kentucky Bar Association, the Board of Bar Examiners and the Judicial Conduct Commission. For examples of how access to those records is limited, see this story by Andrew Wolfson in The Courier-Journal.

Two press-freedom bills fail to pass

Two press-freedom bills are among those being tossed aside with just two limited-agenda days left in this year's regular legislative session. But the Kentucky Press Association vows to revive both next time around.

David Thompson, KPA executive director, said in a message to the group's members that SB 130, which would ensure access to voting places for journalists and photographers, had been agreed on by Secretary of State Trey Grayson, the State Board of Elections, the Kentucky Broadcasters Association and KPA. It passed out of the Senate State and Local Government Committee, then "politics showed up" in the Senate Republican caucus, Thompson reported. The bill wound up in another committee, where it remains.

House Bill 43 would have guaranteed freedom of speech and press for high school student journalists, with limitations, and would have immunized school boards from criminal or civil liability for student publications. But Thompson said it "didn't come close to getting a hearing" in the House Education Committee.

Thompson promised that KPA will lobby for both bills in 2010. The legislature may have a special session later this year but it is expected to be limited to budget-related issues. It returns next week to reconsider any vetoed bills and perhaps some held up by House-Senate disagreement.

New attorney general decisions on records

The following Open Records Decisions were issued by the Office of the Attorney General March 10-12:

1. 09-ORD-041 (Jefferson County)
Because the Louisville and Jefferson County Metropolitan Sewer District Board of Directors is the final decision-maker on all grievances that progress to Step III of the internal "Grievance Procedure," the district has not taken any final action until the board renders a decision; accordingly, the investigatory records in dispute retain their preliminary status and the sewer district properly denied the request on the bases of KRS 61.878(1)(i) and (j).

2. 09-ORD-042 (Jefferson County)
Because AT&T Mobility Corp. does not derive at least 25 percent of its funds expended by it in the Commonwealth from state or local funds, it is not a “public agency” within the meaning of KRS 61.870(1) and is not subject to the Open Records Act. Accordingly, it is not required either to release its records or to adhere to procedural requirements in response to a request for its records under the Act.

3. 09-ORD-043 (Mercer County)
Decision adopting 03-ORD-073 and 04-ORD-076; Northpoint Training Center properly relied on KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying inmate's request for a copy of another inmate's grievance because the record does not contain a "specific reference" to him.

4. 09-ORD-044 (Morgan County)
Eastern Kentucky Correctional Complex did not violate Open Records Act when incomplete “move sheets” were not retained by the agency and therefore no longer existed. Such documents could be fairly characterized as “general correspondence” for records retention purposes. Department had discretion to deny inspection of such documents as a security threat under KRS 197.025(1).

5. 09-ORD-045 (Ohio County)
Decision adopting 98-ORD-6 and holding that because circuit court clerk is not bound by the provisions of the Open Records Act, she cannot be said to have violated the act in the disposition of records request.

6. 09-ORD-046 (Campbell County)
Decision adopting 98-ORD-6 and finding no error in circuit court clerk's disposition of records request.

7. 09-ORD-047 (Mercer County)
Northpoint Training Center properly relied upon KRS 197.025(1) and 197.025(2) in denying a request for a Security Activity Log as document did not contain a specific reference to the inmate and disclosure could pose a legitimate security threat.

8. 09-ORD-048 (Kenton County)
Decision adopting 04-ORD-123 and holding that Elsmere Fire Protection District subverted the intent of the Open Records Act, short of denial of inspection, by extending invitation to requester to conduct inspection of records in the offices of the agency's contract attorney rather than in suitable facilities located on agency premises.

For the full text of the decisions, click here.

Kentucky online records access in the middle

A new survey for Sunshine Week puts Kentucky squarely in the middle in terms of availability of on-line records, according to The Associated Press.

The poll, released Sunday for the annual observance of open-government efforts, rates Kentucky 26th among states in a survey of 20 types of records such as death certificates, state audits and school bus inspections. Of the 20 categories, records for 11 were available online, the survey reported, tying Kentucky with four other states. Texas came in first in the poll with all 20 categories available. Mississippi was on the bottom with four.

Gov. Steve Beshear has called on-line access to state records a priority for his administration. A special task force has established a portal website, http://www.opendoor.ky.gov/, to make it easier to obtain such records.

Secretary of State Trey Grayson also has worked to make business and other records kept by his office available online. He is again pushing legislation to make statewide candidates file their campaign-finance reports electronically, so they can be immediately available for public inspection and analysis. The original bill got caught up in a House-Senate dispute and has been attached as a Senate amendment to a House bill, but it is uncertain whether the legislature will consider such "piggybacked" legislation when it returns to Frankfort next week to reconsider bills Beshear vetoes. UPDATE: House Speaker Greg Stumbo said on KET tonight that the House may consider concurrence on some House bills amended by the Senate.

Sunshine Week starts Sunday, March 15

Sunshine Week, the annual observance to promote openness in government, is March 15-21. The project has many resources for newspapers and other media, including ads, graphics and opinion columns by Sen. Patrick Leahy (D-Vt.) on recent Freedom of Information victories and what still needs to be done; Frank LoMonte of the Student Press Law Center on educators' misapplication of federal privacy laws; Jerry Stephens of Edmond, Okla., whose son is heading to Afghanistan, explaining why he believes the media should have access to the homecoming of soldiers killed in action overseas; Ellen Miller of the Sunlight Foundation on senators' failure to make their campaign-finance reports searchable, and state Sen. Dan Greenberg (R-Ark.) explaining why criminal histories of officials should be public. For more details, click here.

Attorney general issues open-records opinions

Kentucky Attorney General Jack Conway has issued four decisions in cases involving the state's open records law. In open-records and open-meetings matters, attorney general's opinions have the force of law but can be appealed to circuit court. The decisions are:

In re: Tommy Withrow/Nicholas Circuit Court Clerk
Because records in the custody of circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the Attorney General has consistently recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Nicholas Circuit Court Clerk cannot be said to have violated the Act in failing to respond upon receipt of the request as otherwise required by KRS 61.880(1). Decision adopts 98-ORD-6.

In re: Eric Daley/Lee Adjustment Center
Lee Adjustment Center, a state prison, did not violate the Open Records Act by not permitting an inmate to inspect a contract with a private vendor when the document did not contain a specific reference to him, as provided in KRS 197.025(2).

In re: Gary Dowe/Lee Adjustment Center
Lee Adjustment Center lawfully denied an inmate copies of any documents regarding his allegation of finding a razor blade in his food. The institution had discretion to deny inspection of such documents as a security threat under KRS 197.025(1).

In re: John M. Price, Jr./Lexington-Fayette Urban County Government, Division of Community Corrections
Decision adopting 99-ORD-30 and 08-ORD-044; LFUCG Division of Community Corrections did not violate the Act in declining to provide copies to indigent requester because his inmate account contained insufficient funds to pay the reproduction charges. In accordance with KRS 61.872(3)(b), 61.874(1), Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985), and prior decisions of this office, the denial is affirmed.

For full texts of the decisions, see the link of interest below.

Capacity crowd shows support for investigative journalism, openness in government

A capacity crowd in Lexington tonight was testimony to the importance of open government and investigative journalism.

Journalists and about as many non-journalists gathered to hear Lexington Herald-Leader reporter Jennifer Hewlett and projects editor Sharon Walsh discuss the paper's investigation of spending by local airport officials, which has resulted in resignations of several, a scathing report by the state auditor and a criminal investigation.

"I had no idea it was going to turn into what it did," Hewlett said at a meeting of the Bluegrass Chapter of the Society of Professional Journalists, in the Buckner Room at the Herald-Leader. She said a relatively minor story, coupled with help from "well-placed sources," resulted in stories that became the talk of the town -- especially after the airport board chairman revealed that the executive director and his lieutenants spent thousands of public dollars at a strip club. All told, the questionable expenses exceed half a million dollars.

Walsh (at right in photo) said the stories also hit home with readers because "People felt like the airport was theirs, and it was expenses people could identify with," such as using airport credit cards to fill up personal vehicles on the same day as airport vehicles.

Several in the crowd said the stories showed the essential role of independent journalism in a democratic system, at a time when newspapers are shriveling for technological and economic reasons.

"If it weren't for the Herald-Leader all the people who were supposed to be watching would have let this keep going," librarian Susan Daole told the speakers. "I am so worried about what's going to happen to it every day as you have to let more and more people go." Today, McClatchy Co., which bought the Herald-Leader in its purchase of the Knight-Ridder chain, announced that it would cut another 1,600 jobs.

With newspapers hobbled, civic activist Don Pratt said, journalists should help citizens understand how to use open-records laws to do their own investigations. The writer of this item urged non-journalists to become active in Kentucky Citizens for Open Government. To e-mail me, click here.

Waters takes parting shot at legislative leaders' failed bill for invesigative agency

With the Kentucky General Assembly in the last full week of its 2009 session, columnist Jim Waters took a parting shot at one of the session's most controversial bills, which would have set up a new legislative investigating agency immune from public scrutiny.

The legislation was sponsored by Republican Senate President David Williams and Democratic House Speaker Greg Stumbo, but didn't even come to a vote in committee.

"Yes, ensuring government operates more efficiently, effectively and fiscally is a good thing. But holding secret hearings and conducting secret audits is not," wrote Waters, of the Bluegrass Institute for Public Policy Solutions, a libertarian think tank based in Bowling Green.

"Creating another large, costly government agency to do audits – the elected state auditor’s job – is not. Exempting state politicians from all accountability and transparency – another end run past the state open meetings and records law – is not."

Waters added that without transparency, "No hope exists for restoring public trust in government, which is at an all-time low." For the full text of his weekly column, click here.

Columnist blasts 911 bill

The bill to prohibit broadcast of 911 call recordings, expected to be reintroduced in next year's legislative session by Sen. John Schickel, R-Union, drew a blast from Jim Waters of the libertarian Bluegrass Institute for Public Policy Solutions in his weekly column. Noting that state open records laws don't make exceptions for "unpleasant" content in some 911 calls, Waters accused Schickel of "pandering to privacy advocates."

"The public makes the calls," Waters wrote. "The calls go to a public agency. Public agencies respond to the calls. And in fact, some of that unpleasant content reveals less-than-stellar performances by emergency dispatchers and law enforcement – a service to the public.The bill smacks of silliness, poor logic and court challenges." To read the column, click here.

Bills for 911 recording secrecy, high-school press protection look dead for this year

With the Kentucky General Assembly rushing toward the end of its session, it's apparent three bills related to open government and First Amendment issues are almost surely dead for this year.

House Speaker Greg Stumbo announced yesterday bills he and Senate President David Williams sponsored to create a legislative investigative agency would be put off "for the interim." And neither Senate Bill 30, which would prohibit broadcast of 911 call recordings, nor House Bill 43, extending First Amendment rights to high school journalists, has been listed for committee consideration. That means neither is likely to make it to the House floor, much less the Senate.

The sponsor of the high school bill, Rep. Brent Yonts, told the KOG Blog that he had been pushing hard for it to be scheduled for a hearing but without success. And while the 911 bill, sponsored by Sen. John Schickel, R-Union, and opposed by the Kentucky Press Association, will not get a vote this session, "It will be back in 2010, 2011, 2012 -- as long as Sen. Schickel is in the legislature," said KPA director David Thompson. "It's still a terrible bill."

Some 832 bills have been proposed during the session. As of Wednesday morning, 18 had been approved by both House and Senate, and 15 have been signed by Gov. Steve Beshear.

Stumbo softens bill for investigative agency, indicates he won't push for it this year

Noting concern over secrecy provisions in a bill to set up a legislative investigative agency, House Speaker Greg Stumbo, right, submitted an altered version of the bill Monday to the House State Government Committee and indicated he would not push the bill to a vote this session.

House Bill 540, like an identical bill in the Senate, would set up a General Assembly Accountability and Review Division to investigate other state agencies. Its first version would have exempted its operations from state the open records law, a provision that brought opposition from Attorney General Jack Conway and other officials, as well as journalists and other open government advocates.

However, the revised version submitted to the committee Monday provides that the only exemption to the records law would be investigations referred for prosecution. "This has fixed a lot of the problems we had previously," Ashley Pack, general counsel for the Kentucky Press Association, told the committee.

Stumbo said that "we are not going to move this forward" immediately and would "discuss it in the interim" between sessions. He compared the proposed agency to the federal government's General Accounting Office and said it was "a tool the legislature needs."

The GAO does not have subpoena power, but federal law requires agencies and contractors to give it the information is seeks; its records are subject to release under the federal Freedom of Information Act.

Stumbo to revise investigative bill at 2 today

UPDATE, 2:11 p.m.: Committee Chairman Mike Cherry says the panel will not act on the bill today, but will discuss it.

At today's House State Government Committee meeting, scheduled to begin at 2 p.m., House Speaker Greg Stumbo will announce his proposed revisions to House Bill 540, his version of the legislation that would create a new investigative arm of the legislature not subject to open-records laws. That's according to Stumbo spokesman Brian Wilkerson. The meeting can be viewed live via KET videostreaming at www.ket.org/legislature.

AG says city can't require records requests to be made in person or on special form

The City of Cumberland can't require open-records requests to be filed in person, the state attorney general ruled last week.

Attorney General Jack Conway also said the city may not require records requests to be made on its own special form. The decision came in the case of Carl Hatfield, who had filed requests for an assortment of city records.

Conway also issued a decision last week saying that Louisville Metro Corrections officials had acted properly in denying two inmates' request for records that did not contain a specific reference to one or both of them, as required by statute.

Attorney general's decisions have the force of law in open-records and open-meetings matters, but losers can appeal to circuit court.