Monday, October 26, 2009

Attorney general rules against city, county agencies

The Kentucky Attorney General’s office has cited several county and city agencies for holding closed sessions or meetings or refusing requests for public records in a batch of rulings.

The office ruled:

• A planning committee formed by Shelby County Fiscal Court and the cities of Shelbyville and Simpsonville violated the Open Meetings Act by conducting non-public meetings without notice or minutes. The committee had been created by official action.

• The Joint Board of Ethics for the cities of Bardstown and Fairfield and Nelson County failed to observe requirements for conducting closed sessions and failed to respond to an open meetings complaint.

Laurel County Fiscal Court was late in responding to a request for public records and wrong in refusing records of a closed session on jail personnel.

• The Webster County Board of Education violated the Open Meetings Act in failing to strictly comply with legal requirements before going into closed session.

• The city of Raceland subverted the intent of the Open Records Act by representing that charges would be made for staff time spent on an open records request.

Madison County Fiscal Court violated the Open Meetings Act in relation to a September 22 meeting of a quorum of its members or a series of less than quorum meetings where the members attending collectively constituted a quorum and where public business was discussed.

Kentucky Community and Technical College System improperly relied on KRS 61.878(1)(a) and (i) in denying a request for evaluations and performance improvement plans relating to public officials whose conduct had been questioned. The ruling also said KCTCS's inability to produce correspondence exchanged by the chancellor and the president for a two-month period suggests record management issue, and referred the matter to the Department for Libraries and Archives.

The attorney general’s office also ruled in favor of the Office of the Commonwealth’s Attorney for the 30th Judicial District, Campbell County Fiscal Court, Western Kentucky Correctional Complex, Kentucky State Reformatory, Pike County Circuit Court Clerk and Louisville Metro Department of Corrections in separate open records and open meetings complaints.

Full texts of the opinions can be found through the Links of Interest below.

Wednesday, October 14, 2009

Inspector fired after newspaper investigation

Todd County has fired its restaurant inspector after an investigation by the Kentucky New Era showed he had failed to make required inspections.

The Hopkinsville daily reported that county Health Director Leslie Daniels fired environmentalist Malcolm Rust for "insufficient performance" and because of an interview he gave the newspaper in which he said there was "too much work for one person." The newspaper's investigation showed that Rust had often failed to make required inspections. Several restaurants had gone 11 months without an inspection, which the law requires every six months.

Rust had worked for the county for 10 years, the New Era story by Julia Hunter said.

Tuesday, October 13, 2009

Attorney general rules against airport board, county officials

The state attorney general's office has ruled the Lexington-Fayette Urban County Airport Board and county officials in Whitley, Crittenden and Nelson counties violated Kentucky's Open Records Act.

The airport board ruling came in a case brought by Lexington Herald-Leader reporter Jennifer Hewlettas part of the newspaper's investigation of the board. Hewlett was seeking an unredacted copy of a $10,000 check issued to former airport executive director Michael Gobb. The board had blacked out the name on the check, claiming it included "confidential health information."

"In weighing the competing public and private interests in the redacted information, the balance tips in favor of disclosure," the attorney general's decision said.

Gobb resigned as executive director after the newspaper's investigation, which revealed a pattern of questionable and high spending of public money.

In Whitley County, the 911 Dispatch Office denied a request for a copy of a 911 tape by Clarence Hurst. The dispatch office refused, saying 911 tapes are exempt from the Kentucky Open Records Act. "We find no support in the law for Whitley County's position," the attorney general's ruling said, adding "an ever-growing body" of law and legal opinions hold that 911 recordings are clearly public.

Crittenden County Fiscal Court "violated both procedural and substantive provisions of the Open Records Act" when it failed to respond properly to a request by Robert Moore for records relating to its solid waste management plan, the attorney general's opinion said.

In Nelson County, the judge/executive violated the law when he withheld "nonexempt portions of time sheets/time cards of a public employee, such as vacation leave and sick leave." The decision said, "In our view, the public's right to know is superior to the employees' privacy interest, real or imagined."

School board violated open meetings act

The Spencer County Board of Education violated Kentucky's Open Meetings Act by evaluating its superintendent in a closed-door session, Circuit Court Judge Charles Hickman has ruled.

The decision upheld an opinion by the attorney general's office that had been challenged by the school board.

The board conducted its mandatory annual evaluation of Superintendent Charles Adams in a closed session in June 2008. Board member Sandy Clevenger, who voted against the motion to adjourn to an executive session to discuss the evaluation, asked the attorney general whether the session complied with the state law. The opinion issued by the attorney general's office, which has the force of law unless overturned in circuit court, said the superintendent's personnel evaluation must be conducted in public. The school board challenged the ruling, supported by the state School Board Association, Board of Education, Department of Education and the Association of School Administrators.

"The exceptions to the Open Meetings Act are to be strictly construed in light of the decided preference that the public's business be performed before the eyes of the public," Judge Hickman wrote in his decision. "The Court finds no error in the AG's reasoning or conclusions."

Hickman turned down Clevenger's request for damages and attorney fees, saying the decision to hold a closed session was made in good faith and not in willful violation of the Open Meetings Act.

Monday, October 5, 2009

Attorney general rules in favor of Winchester Sun in open records case

Kentucky’s Energy and Environment Cabinet cannot withhold the addresses of people receiving benefits under the Soil Erosion and Water Quality Cost-Share program, the state’s attorney general has ruled.

The ruling came in a case filed by Winchester Sun reporter Mike Wynn. Wynn had asked for the names and addresses of “all individuals, businesses, farming operations or similar entities in Clark County that have received funding in the last five years” from the state program.
The cabinet, a part of the Division of Conservation, gave Wynn most of the information but refused to release the addresses, citing “privacy concerns.”

The ruling, while recognizing that such information can sometimes be withheld from public disclosure, said such a decision must be made on a case-by-case basis, and no agency can make an overall rule. In this case, the ruling said, the public’s right to know whether the benefits were being granted properly to properly qualified farmers outweighed the recipients’ right to privacy.

“As the Kentucky Supreme Court emphasized, the ‘unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment to public officials or others’,” the ruling said.

The attorney general’s office also ruled on several other cases involving prisoner requests for information. A brief summary follows. For full details, see Links of Interest below.

1. 09-ORD-158 (Lyon County)
The Kentucky State Penitentiary did not violate the Open Records Act in denying request because sufficient indicia exist to establish an "identity of purpose" between the requester and her inmate boyfriend. Because requester admittedly made request on his behalf after the penitentiary properly denied his request for the same records on the bases of KRS 197.025(1) and (2), providing her with access would undermine the purpose for which those provisions were enacted.

2. 09-ORD-159 (Franklin County)
Private attorneys are not public agencies within the meaning of KRS 61.870(1) to whom the Open Records Act applies. Accordingly, actions of private attorney relative to responding to former client's request cannot be said to have violated the act.

3. 09-ORD-160 (Franklin County)
The Department of Corrections was not required to permit on-site inspection of Probation and Parole records by an inmate confined in another location.

4. 09-ORD-163 (Lincoln County)
The Lincoln County Jail is not statutorily required to honor a request for information as opposed to a request for existing public records. Although the jail would generally be required to make any nonexempt records that might contain the information being sought available for inspection, the requester is precluded from exercising this option by virtue of his confinement in a state correctional facility.