Tuesday, September 22, 2009

Inmate not allowed access to letters he wrote

Saying it would not overrule prison officials in judging whether releasing some records would pose a security threat, the state attorney general's office has ruled in favor of the Lee Adjustment Center, a medium-security facility operated by Corrections Corp. of America under contract with the state Department of Corrections, in a dispute with an inmate. The decision, 09-ORD-152, was one of two issued this week by the office.

In the other, 09-ORD-151, it said the Russell County Board of Education properly withheld education records under federal and state education privacy laws where applicant had not provided legal certification that he was the father of the pupils, although the board's initial response procedurally violated the law by not identifying the custodian of certain records.

For full texts of the ruling, see Links of Interest at the bottom of the KOG Blog.

National security issues snag shield-law bill

Questions about dealing with leaks of national-security information are holding up passage of a federal shield law for journalists, Walter Pincus reports for The Washington Post. The Justice Department wants to do away with the proposed "balancing test" in which judges would weigh the need to compel reporters to disclose sources against the public interest of revealing the information, in favor of a plan that would allow the department to subpoena reporters after convincing a judge that release of information could harm national security. For a Rural Blog item with a link to the story, go to http://irjci.blogspot.com/.

Friday, September 18, 2009

Journalists attending Sunshine Seminar today

Fifteen journalists gathered in Morehead this morning for the third Sunshine Seminar sponsored by the Kentucky Press Association, the Scripps Howard First Amendment Center and the Institute for Rural Journalism and Community Issues. The first presentation was given by Ashley Pack, above, partner in the Dinsmore & Shohl law firm and KPA attorney-lobbyist. The next speaker was Amye Bensenhaver, the assistant attorney general who handles open-government issues. This afternoon, Carrie Stambaugh of The Independent in Ashland will tell open-government war stories and Al Cross of the Institute will discuss using campaign-finance records and what sort of public records newspapers should publish.
After Pack noted that the legislative policy of the Open Records Act calls for it to be "strictly construed, even though such examination may cause inconvenience or embarassment to public officials or others," Cross said community journalists may be reluctant to cause discomfort or inconvenience to local officials they know and like, they "must put those personal relationships aside" and play the public-service role that news ouutlets and journalists are supposed to play.

Monday, September 14, 2009

Kentucky New Era wins open-records victory, follows up with story on health departments

The Rural Blog reports today on an open-records victory by the Kentucky New Era in Hopkinsville that resulted in a weekend story questioning the performance of health departments in southwestern Kentucky. For the full blog item and a link to the story, go here.

AG reiterates: Public officials are not required to create records that do not exist

The Kentucky attorney general's office released eight decisions today on open-records and open-meetings issues. Several dealt with requests for records that officials said did not exist; decisions reaffirmed past decisions saying records don't have to be created to fulfill a request. A brief summary of the six most significant decisions follows. Full text can be found via Links of Interest at the bottom of the KOG Blog.

Although Trigg County Emergency Services mischaracterized 911 tape and dispatch log entries relating to triple homicide as Kentucky State Police records, because they were requested and utilized by KSP in its investigation of the crime, it ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at KSP's request.

McCreary County sheriff violated the Open Records Act by failing to respond in writing to a request and failing without explanation to provide any records about wrecker service in response to some portions of the request.

Neither the McCreary County judge-executive nor the McCreary County 911 Emergency Dispatch Center is required to produce nonexistent records about wrecker service or "prove a negative" in order to refute a claim that a certain records exist under the rule, nor must either agency create a record or compile a list in order to honor the subject requests; however, the response provided on behalf of the agencies violated the Act insofar as the judge-executive failed to affirmatively indicate whether additional responsive documents exist.

Office of the Governor did not violate the Open Records Act when it did not possess records responsive to the request and provided what it did possess. Any funds received for copies in excess of 10 cents per page should have been returned.

Cabinet for Health and Family Services properly withheld records relating to a child fatality pursuant to KRS 61.878(1)(l), incorporating confidentiality statutes KRS 194A.060 and KRS 620.050.

Pulaski County judge-executive is not expected to produce nonexistent reprimands nor must he "prove a negative" in order to refute a claim that such records exist in a specific personnel file; however, he violated KRS 61.880(1) in failing to affirmatively indicate whether any responsive complaints or commendations exist and in failing to cite the statutory exception relied upon as the basis for denying access to the requested job performance evaluation. The evaluation was properly withheld on the basis of KRS 61.878(1)(a), given the absence of any specific facts to justify disclosure.

Friday, September 11, 2009

Challenge to Texas open-meetings law dismissed

The Fifth Circuit U.S. Court of Appeals has dismissed a case in which two city council members in Texas claimed the state's open-meetings law violated their right to free speech.

The full court, in a one-sentence ruling Thursday, said the case, Rangra vs. Brown, was moot because both Alpine City Council members who filed it four years ago have left the council and are no longer in a position to be injured by the law.

The two had been threatened with prosecution by the Texas attorney general for discussing city business by e-mail. They argued that the open-meetings law's requirement that they not discuss public business in private violated their constitutional right to free speech. A federal judge had ruled against them, but a three-member panel of the Court of Appeals overturned that ruling. The full 17-member appeals court agreed to hear the appeal, a rare event. The vote was 16-1; the dissenter criticized the others for taking the easy way out.

Proponents of government transparency had feared that if the appeals court ruled in favor of the two councilmen, open-meetings laws in other states might come under attack. Other experts, including Jon Fleischaker of Louisville, the First Amendment lawyer who largely drafted Kentucky's law, had said the three-judge panel's ruling was illogical and would never stand.

Thursday, September 10, 2009

Bill would apply records law to officials' groups

A bill making any organization whose employees get state retirement benefits will be subject to the Kentucky Open Records Act has been prefiled by Rep. Arnold Simpson, D-Covington, and the Lexingon Herald-Leader reported Thursday it seems likely to pass when the legislature convenes next year.

The newspaper said the bill stems from its recent investigations into lavish spending at the Kentucky League of Cities and the Kentucky Association of Counties that led to the resignations of the leaders of both organizations. Although both organizations had surrendered records to the paper, they had claimed they were not subject to the records law. Each agency receives more than 25 percent of its budgets from public funds, the law's threshold for public inspection. Employees of both agencies receive state retirement benefits.

Simpson said at a recent public hearing that any group that received even "an iota" of public funding should release such records. The Herald-Leader said that leaders in both houses of the legislature had indicated they favored the bill. For the full story on Simpson's proposal, click here.

AG: Public agencies' settlements are public

Public agencies cannot keep settlement agreements in court cases confidential, Kentucky Attorney General Jack Conway reminded officials in an opinion issued Sept. 1.

The opinion, which is legally binding unless appealed to circuit court, found the Regional Water Resource Agency in violation of the state's Open Records Act. The case involved a settlement with Ed Shelton of a lawsuit he filed after his sewer line collapsed. Owensboro Messenger-Inquirer reporter James Mayse had requested a copy of the agreement, but was denied by the agency, which cited a confidentiality clause in the settlement.

The attorney general's office cited a 1997 decision of the state Supreme Court and earlier attorney-general decisions in ruling that such a clause "does not create an inherent right to privacy superior to the significant public interest in disclosure of such a record."

The office also ruled against the Powell County School District, saying its refusal to supply records on a school activity fund was "procedurally deficient" and "substantively incorrect." The opinion said the district did not give reasons for failing to reply within the three days required by law to a request by Karen Rose, and that the district's claim that the records were "general correspondence" which could be destroyed in two years was wrong.

The decision said the records had to be kept for three years and an audit performed before they could be destroyed. However, it said the attorney general's office "cannot afford Ms. Rose the relief she seeks" because the records no longer exist. He did urge the school district to review open records authorities on "proper records management."

For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.

Tuesday, September 1, 2009

Conway says district health department made several mistakes regarding public records

A Western Kentucky health department “subverted the intent” of the state Open Records Act in dealing with the Hopkinsville newspaper's requests for records, Attorney General Jack Conway said in a recent ruling.

The opinion, which is called an "open records decision" because it has the force of law, came after Kentucky New Era reporter Sarah Hogsed filed a request for restaurant inspection reports with the Pennyrile District Health Department. The New Era, which is already reporting on restaurant inspections in Christian County, plans to expand that coverage to adjoining Trigg and Todd counties.

The health department violated the open records law in several ways, the opinion said. First, it disputed Hogsed’s request to have the records within three days, saying it was only required to notify her within that period if it would comply. The attorney general's opinion said that the office was required to turn over the records in three days. The department demanded that she show up in person, present a photo ID and sign a standard form in the presence of a health department employee. That's not the law, either, the opinion said.

Hogsed would then get the records “in a reasonable period of time,” the reply said, “keep[ing] in mind two years of information is quiet [sic] time consuming.” She would also have to pay “all costs associated with the recovery and photocopying.” When the department finally got around to fulfilling the request, it appeared to get the job done in about one day, and charged the paper only 10 cents a copy, the general maximum established by previous attorneys general.

The opinion said the district's excuse for the delay – absence of staff – was not sufficient. The opinion added “in the interest of absolute clarity,” that those who ask for public records cannot be required to submit their requests on preprinted forms, or sign forms in the presence of an agency employee; that receipt of records no longer requires on-site inspection; that agencies may recover only their actual costs of reproducing public records, not including staff time, if the records are to be used for a noncommercial purpose, including use by a newspaper or periodical. The department had indicated that it considered the paper a commercial interest. "We suppose the notion that the news media act in the public interest had escaped the health department," the opinion said.

In another opinion, the attorney general's office ruled that the Shively Police Department’s failure to respond in a timely manner to a request for a police car video in a non-DUI case violated the Open Records Act. The full text of the decisions can be found through the Links of Interest at the bottom of the KOG Blog.