Tuesday, December 7, 2010

State releases records in baby's death at meth lab; newspapers seek more

UPDATE, Dec. 8: The judge yesterday ordered the state to give him all the records on the case by 10 a.m. today, along with a document list to give the newspapers. He said he would decide what records to make public. For a detailed story by the Herald-Leader's Beth Musgrave, click here.

A toddler who died last year at a methamphetamine lab near Monticello drank drain cleaner, which is used in making meth, according to records released by order of Franklin Circuit Judge Phillip Shepherd, the Lexington Herald-Leader reported Tuesday.

Attorneys for the Herald-Leader and the Courier-Journal are asking Judge Shepherd to hold the state Cabinet for Health and Family Services in contempt and to force it to release additional records related to the child's death still being held under seal.

The Herald-Leader had filed suit under the state's Open Records Act after the cabinet refused to release details in the death of 20-month-old Kayden Branham, right. The boy's father, Bryan Daniels, was charged with murder, and along with several others, with making meth. That trial is scheduled for January. Both the toddler and his mother, Alisha Branham, were under the supervision of the state system for abused and neglected children at the time of his death.

Both newspapers reported the records it received under Judge Shepherd's court order were incomplete, and some information contained in documents that were released had been redacted by the cabinet.

"The Herald-Leader strongly believes that the state should produce all records in this case, including any that reflect the cabinet's contact with the family and its conduct prior to Kayden's death," Editor Peter Baniak said in the newspaper's story. "Without such transparency, there is no way for the public to assess whether the state child-welfare system appropriately handled this case. That's why we took this case to court in the first place."

“They have not given us nearly all the records the judge ordered them to give us,” said Jon Fleischaker, a lawyer for The Courier-Journal. “I think there are major problems with their attempt to comply with the court order.”

In ordering the records released, Shepherd wrote, "It is not unwarranted for the public, and the press, to want to know what happened when a 20-month-old child in the care and legal custody of the Commonwealth of Kentucky winds up dead after drinking toxic substances in a meth lab."

For the full story in the Herald-Leader, go here. The Courier-Journal's story is here.

Wednesday, December 1, 2010

Kenton County judge cites sewer district, slams lawyers in open records case

Northern Kentucky's Sanitation District #1 "repeatedly and willfully" violated the state's open records act in a dispute with an Independence construction company over sewage overflows, a Kenton County Circuit Court judge has ruled.

But Judge Martin Sheehan also slammed the Coppage Construction Company's lawyers for piling up an "obscene" amount of billable hours in the case, awarding $25,000 in lawyers' fees and $13,133.78 in costs, instead of the $185,000 they had claimed.

In a colorful ruling against the sanitation district, Sheehan railed against the district's conduct, which he said "falls woefully short of the standards demanded by the Open Records Act," then slammed the construction company's lawyers as "a gaggle of gluttons at an all-you-can-eat buffet."

"More than an estimated $300,000 has been expended in what amounts to little more than a discovery dispute," he wrote. "That's obscene! One could wonder if the best interests of the clients have been lost in the fog of a battle of wills, ego and legal one-upmanship."

The dispute involves a long-running civil lawsuit between the two entities, in which Coppage filed requests for thousands of emails from the sanitation district, which provides sewage service for most of Northern Kentucky. The district delayed complying with the request for some two years, using what the judge called a "shotgun approach, asserting any and all explanations for its conduct which it could conjure up."

"Upon analysis of the totality of the circumstances, including but not limited to inadequate searches, inordinate delays, implausible explanations, insufficient and incomplete production of records, and possible illegal record destruction, there is but one conclusion that can be reached," Sheehan wrote in his opinion. "(The district) repeatedly and willfully violated the Open Records Act."

On considering the question of legal costs, which the act says may be awarded in cases of willful violation, though, Sheehan said the request by Coppage for $185,000 "fails the reasonableness test."

"Quite simply the request shocks the conscience and is excessive and overreaching in many respects," the judge wrote.

In his ruling, Sheehan laments that "as a result of the conduct of many attorneys practicing before this court during its 17 years on the bench, this Court finds itself, with increasing frequency, bemusing and bemoaning the declining civility of our chosen profession. Scorched-earth litigation tactics now reign supreme ... the corrosive effect of such poison is painfully evident in the current dispute. Over $300,000 expended bickering over discovery - incredible! Ludicrous! Obscene!"

For a full text of the opinion, go to www.uky.edu/comminfostudies/irjci/KentonCountyRecords.pdf.

Tuesday, November 30, 2010

Conway tells Shelby County to release records of law-enforcement calls to a certain address

Shelby County's 911 emergency dispatch service violated Kentucky's Open Records Act in denying a records request by a Shelbyville resident, Attorney General Jack Conway ruled last week.

The decision, which has the force of law, came in an appeal filed by Antoinette Taylor. She had asked for information on law-enforcement runs to 103 Grey Hawk Drive, Shelbyville, between May and September of this year. Taylor, who is listed as head of Act Now Ministries at 101 Grey Hawk Drive, could not be reached for comment.

Shelby County E911 Communications refused to give Taylor the data, citing a provision of the Open Records Act that exempts from disclosure records that "constitute an unwarranted invasion of privacy" of those involved. However, the attorney general's ruling said "The weight of legal authority, coupled with the facts of this case, militate in favor of disclosure." The decision noted that decisions on exceptions from the law must be made on an individual basis, not as a blanket rule, and that the agency claiming such an exemption must provide proof to support it.

The ruling also cited a previously unpublished decision of the Kentucky Court of Appeals in January 2009, before the Kentucky Open Government Blog began. The three-judge panel voted 2-1 to order the Marshall County E911 board to release call recordings, not just data about calls. The appeals court noted that there were competing interests between "the 911 caller's right to privacy when seeking police assistance versus the public's right to know about the conduct of government agencies." It noted that possible embarrassment to the caller in that case was insufficient, and that all such decisions are "intrinsically situational, and can only be determined" on a case-by-case basis.

For the full text of the attorney general's decision, see Links of Interest at the bottom of the KOG Blog. For the appeals court decision, go here.

Monday, November 22, 2010

Minton orders accounting of sealed cases

Chief Justice John Minton Jr. has ordered all circuit court clerks and judges in Kentucky to make public at least the case numbers and names of parties in thousands of sealed court cases, according to The Courier-Journal.
The Louisville newspaper said the action came after it asked for an accounting of 3,600 cases sealed from public view over the past decade. Minton sent an email to clerks and judges reminding them that sealing court cases should be done rarely and "only for compelling reasons," and that the existence of such cases should never be hidden from the public.
Minton told the newspaper that in recent years, after Kentucky adopted new computer technology, cases that were sealed were moved to the "confidential division," and even the case numbers and participants were hidden. That was a mistake, he said, and the Kentucky Department of Technology would begin immediately change the programming involved. Clerks will also be asked to "make adjustments to previously sealed cases," the paper quoted Minton as saying.
The change will not open the sealed cases, but will reveal docket numbers and parties involved. Jon Fleischaker, who represents the Kentucky Press Association, The Courier-Journal and some other news outlets, said Minton's order was a step toward more transparency.

Friday, November 19, 2010

Butler County Fiscal Court loses open meetings appeal

Butler Circuit Court Judge Ronnie Dortch has denied an appeal filed by the county's fiscal court on an open meetings case originally filed by local citizen activist Robert Cron.

Cron had appealed to the state attorney general over a series of private meetings between four members of the fiscal court and Sheriff Joe Gaddie last year to discuss the budget for the sheriff's department.

The attorney general's office ruled in March that the meetings violated the state's Open Meetings Act. The fiscal court appealed the ruling to the circuit court, which in a brief statement turned down the appeal. However, Dortch said he found no willful intent to violate state law by the fiscal court. That precluded any award of attorney's fees or court costs.

Cron ran an unsuccessful campaign for judge-executive in the recent election.
This is not the first time Butler County Fiscal Court has disregarded its obligation to the law and to the residents of the county by holding secret meetings. In January 2009, the attorney general held that the fiscal court's finance committee had violated the open meetings law by not giving public notice of its meetings.

Thursday, November 4, 2010

Courts rule against two state agencies

Two Kentucky courts have made pro-transparency rulings recently.

Franklin County Circuit Judge Phillip Shepherd has awarded attorney's fees and court costs to the Lexington Herald-Leader and the Louisville Courier-Journal in a case against the Cabinet for Health and Family Services.

The papers had asked for records related to the death of Kayden Daniels, a toddler under "custody and control" of the cabinet when he died at an alleged meth lab. The court, which had earlier ruled the records had to be released under the Open Records Act, in this follow-up decision took issue with the cabinet's blanket refusal to release individual child fatality reports, labelling it a "willful" and intentional violation of the law. "A party requesting public records who prevails in a judicial action ... at a minimum, should be made whole ... when the denial of access is an intentional policy of the agency rather than administrative oversight, bureaucratic confusion, or negligence," the ruling said. It awarded the two papers a total of $20,737.69 in fees and costs. (Kentucky circuit court decisions are available online only to lawyers and state and local officials, so no link could be provided).

"The court recognizes that the Open Records Act is there for the good of the public as a whole," said media attorney Jeremy Rogers, who represented the Courier-Journal in the case. "This opinion acknowledges the reality that court cases to protect rights under the Open Records Act can be costly. However, the court has properly viewed the law’s provision for attorneys’ fees as an incentive for public agencies to comply with the law and as an incentive for members of the public to vindicate the public’s right to know. As the court wrote, '[w]ithout the provision for statutory attorneys fees, public officials would have a great incentive to deny valid open records requests secure in the knowledge that few, if any, parties will be willing to assume the burden of legal fees necessary to challenge such decisions in court.'"

In a separate case, the state's Supreme Court ruled against the Department of Revenue, which in several instances involving a tax refund appeal had refused to release records in a case filed by Mitzi Wyrick on behalf of Gannett Satellite Information Network, Inc. The department had cited the "civil litigation limitation" on the release of information, which provides for special exceptions in ongoing lawsuits. However, the Supreme Court ruled in this case the department did so in error. "The civil litigation limitation is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency," the ruling said. (For the full text, go to http://apps.courts.ky.gov/supremes/sc_opinions.htm, then search 2008-SC-000468-DG.pdf.

Friday, October 8, 2010

Some news outlets say state police are too stingy with information

By Terry Anderson
University of Kentucky School of Journalism and Telecommunications

Some Kentucky State Police posts routinely refuse to provide information that should be public, or ignore requests for information from local reporters, according to a survey of newspapers and broadcast stations.

Kentucky Citizens for Open Government surveyed news outlets in the state after the attorney general’s office said state police had “repeatedly violated” the Kentucky Open Records Act in a homicide case. (See 10-ORD-123 at http://www.ag.ky.gov/civil/orom/list.htm.)

Most of those surveyed said the KSP was generally good about releasing information, but slow, and nine of the 25 news executives who responded to the survey complained of difficulty in getting information from one or more of the KSP’s 16 regional posts.

“It’s consistently a pain to make it happen,” one news executive replied, and another described the local post’s information officer as “all but useless.”

Lt. David Jude, head of the KSP’s Media Relations Branch, said in an e-mailed statement, “Admittedly, we do continue to have relationship issues between our personnel and the media.” He said the agency “fully respects” its relationship with journalists, and “We believe in the mission of the media. . . . We train our cadets, first-line supervisors and telecommunications supervisors in what can be released to the media, how to work and understand the media and why this relationship is so important.”

The journalists said the state police’s reactions to requests for information varied widely among the posts. Each post has a designated, specially trained public affairs officer, but KSP spokesman John Hawkins said media outlets always have another option to obtain information. “There’s always somebody there for them to talk to.”

However, Timothy Kiger, publisher of the Grayson County News-Gazette in Leitchfield, said, “More often than not, it’s ‘the officer is off duty’ and there’s nobody else to give information. And when they do give information it’s only the barest tidbits. It’s like the proverbial blue wall.”

The widely varying replies to the survey indicated significant differences in the responsiveness of individual posts.

“We have not had any open-records issues with Post 2,” near Madisonville, said Tom Clinton, executive editor of The Messenger, the daily newspaper in Madisonville. “The degree of cooperation I have experienced during my 32 years as editor here has been largely determined by the post commander at the time.”

Clinton added, “The KSP is stretched pretty thin these days and getting timely information is always problematic when the officers have more pressing priorities.” In phone interviews, public affairs officers at several posts said they had additional duties. Even Jude, as chief spokesman for the KSP, is also designated head of the Highway Safety Program.

Phyllis McLaughlin, editor of the Trimble Banner in Bedford, said Post 5 at La Grange is “getting better, but they are far more reluctant to give information than any other law enforcement agency I’ve ever worked with anywhere else in my 25 years (as a journalist).”

Some editors were bluntly critical. Post 7 at Richmond is “all but useless,” said Michael Broihier, editor of The Interior Journal in Stanford. “Every day we get faxes about things that happen in surrounding counties, but never, ever to do we get one about Lincoln (County) without asking for it repeatedly.” Broihier said Trooper Chris Lanham, the post’s public affairs officer, had told him there “wasn’t room” for his newspaper’s fax number on the office fax machine and refused to take Broihier’s e-mail address. He said other requests for information on specific cases had been ignored.

Lanham acknowledged that the post had received complaints about him. “We’ve discussed this at post level in the past. A lot of times I’m not available because of other commitments – something might happen and the press not (get) information. A lot of times things happen and I’m not aware of them.”

Lanham said that he now has two “backups” at the post who can take inquiries. “That’s what we’ve done to try to alleviate those concerns from the media. It’s fairly new, but so far, so good.” He said other posts are now doing the same thing.

Sharon Burton, publisher and editor of the Adair County Community Voice, said the KSP’s Post 15 in her town of Columbia responds poorly to information requests.

Burton said in July that an officer at the post refused to give one of her reporters accident reports, contending that state law made such reports available only to the people involved and insurance companies. She called back and pointed out a section of the law that makes the reports available to news media. “The post captain then called me back and said we are entitled to the documents but I would need to send a request to Frankfort letting them know what I needed,” Burton wrote. “When I asked if I could get the reports the same day, he put me on hold then returned to tell me they have three days to respond. I sent an official open records request and am awaiting the response, but of course it will be past deadline for the current edition.”

Burton said she filed a records request with state police headquarters, then got a letter “telling me they have 10 days to transmit accident reports into the accident-report database and the ones I requested are not yet available.” She was incredulous. She said she finally got the reports Aug. 17. The accidents occurred on July 22 and 25.

The four other papers in the Columbia post area that responded to the survey gave the KSP favorable ratings. “We definitely try to keep the public informed,” post spokesman Bill Gregory said. “All media outlets have my cell phone number.” He noted that the post has an assistant public affairs officer, and said news people are often in a hurry, but that “our deadlines aren’t newspaper or radio deadlines.”

Jude blamed the initial negative response to Burton’s request on “an administrative specialist,” and added that “if the request had been referred to the public affairs officer or supervisor, I feel that a better resolution would have been reached.”

Jude confirmed that while officers may give out information orally to a reporter, when a request for an actual copy of a police report is made, there may be up to a 10-day delay for the report to be put into the KSP system, then up to a three-day wait allowed by the open-records law.

“It is understandable that a media outlet would become frustrated with these timelines when general information is all that was sought,” he said in an interview.

Requiring that a report be placed in the database before it is released is “silly,” said Jon Fleischaker of Louisville, a lawyer who has worked on open-records cases for Kentucky news outlets for decades.

“Where they get the 10-day thing, I don’t know,” Fleischaker said. “I don’t know what their internal systems are, but they have it at the post right away. I guarantee you if they have something good (to report) it’s going to get out (without waiting 10 days).” Fleischaker said he was not surprised about the complaints. “The best thing I can say about the state police over the years is that they’re inconsistent. It depends on what you’re asking for. If there’s stuff out there they don’t want you to know, they’re very bad.”

He said journalists’ requests to the state police for information “often result in a run-around – little bits and pieces are given out but they are not fair, complete and consistent.

“Some people are trying hard, but the ones who really control the information won’t give it out if they don’t want to.”

Jennifer Brislin, spokeswoman for the Justice and Public Safety Cabinet, which oversees the state police and its public-affairs officers, said, “We’re very pleased with the level of information released. If there is a case-by-case (problem), we’ll deal with it that way.”

Jude said, “I try to impress up on them that if time and the situation allows, provide basic information (as) to locations and what we are doing.” He said detailed responses should come from public affairs officers. “This is an ongoing process that we continue to work with. It seems in my travels that once the reporter or media outlet get to the proper person, we get the information out.”

Terry Anderson, former Middle East bureau chief of The Associated Press, is a lecturer in the School of Journalism and Telecommunications at the University of Kentucky and also works for the school’s Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues.

Wednesday, October 6, 2010

New SPJ president urges journalists to fight official secrecy, says it's growing at all levels

Journalists must redouble their efforts to fight growing secrecy, the new president of the Society of Professional Journalists told the organization's convention as it wrapped up Tuesday in Las Vegas.

"We are under attack, from the smallest communities to the federal government," Hagit Limor, left, a reporter for Cincinnati's WCPO-TV, told the crowd at her installation banquet. She quoted a report from Freedom of Information Committee Chairman David Cuillier, saying that in many communities "We have the equivalent of a police state."

Cuillier, right, a journalism professor at the University of Arizona, made an "Access Across America" tour to 33 states this spring and summer, including one in Louisville, funded by SPJ's Sigma Delta Chi Foundation. It won him two awards and much recognition at the convention. In his report he cited cases of "no access to jail logs, arrest reports, 911 logs, incident reports or scanner traffic," but said the biggest FOI problem "isn’t that government is denying record requests. The problem is that not enough journalists are submitting record requests. Small news organizations need much more training in access. In some newsrooms the reporters didn’t know they could ask for public records."

Limor, whose father survived the Buchenwald concentration camp and saw her sworn in, said the Holocaust wasn't reported for years though governments knew about it. "Ask him why we have to fight for press rights, for access to government records," she said. "We are part of something that is bigger than all of us, that depends on all of us." For more on the convention and SPJ see http://www.spj.org/.

Monday, September 27, 2010

Attorney general faults Kentucky League of Cities, City of Salyersville in open-records cases

The Kentucky League of Cities wrongly denied a Covington lawyer's request for information on how much the group paid its attorneys in a case he handled against them, the attorney general's office has ruled. The attorney general's decisions in open-records and open-meetings cases have the force of law unless overturned in court.

In another opinion, the attorney general's office found that the City of Salyersville "subverted the intent of the Open Records Act, short of denial of inspection," when it refused a request by Jeff Ross for city employee payroll records. The city had demanded that Ross be more specific. The original request was "adequate for a reasonable person" to determine what he wanted, the decision said.

In the League of Cities case, Brandon Voelker told the KOG Blog he planned to use the information in a lawsuit against the league, accusing it of wrongfully defending the first case, which involved a claim for damages caused by a Northern Kentucky sewer overflow. The league had provided insurance to the sewer district.

The league claimed that giving Voelker the information would create unfair competitive or commercial advantage to other insurance providers, since legal costs help make up its insurance rates. The opinion rejected the argument: "We are well aware that KLC occupies a unique position as a public entity, subject to the Open Records Act, that is engaged in a competitive business. Nevertheless, KLC offers no proof of competitive harm from disclosure of the records."

The opinion added, "The legislature's apparent goal in enacting these provisions was to expose KLC, and similarly situated public entities to the light of public scrutiny and not, simultaneously, to establish exceptions that swallow the rule of openness and accountability." For more background on KLC and the Kentucky Association of Counties' open-government issues, click here.

Tuesday, September 21, 2010

Danville editor wins James Madison Award for service to the First Amendment

John Nelson, editor of the Advocate-Messenger in Danville, Ky., last night received the James Madison Award for service to the First Amendment, presented by the Scripps Howard First Amendment Center in School of Journalism and Telecommunications at the University of Kentucky. (A-M photo by Clay Jackson)

Nelson, who also oversees editorial operations of other Schurz Communications newspapers in Kentucky, won the award because "He has fought for open government in a number of important ways," former Kentucky Post editor Judith Clabes, the award's first winner, said in presenting it to him. She cited the nomination from Kentucky Press Association Executive Director David Thompson, who wrote, “Few people in Kentucky are as adamant about open government. If more had the drive that John Nelson has exhibited during his journalism career, there would be a demand from every corner of the state that all public agencies operate in ‘sunshine’ and make the agency’s business truly the public’s business.”

As KPA president in 2004, Nelson led Kentucky's first statewide public-records audit and was instrumental in creating the KPA Legal Defense Fund and a lawsuit that KPA filed to open juvenile court proceedings. Federal courts rejected the suit's arguments, but the Court of Appeals "interpreted state law in a way it had never before been interpreted, giving judges an opening to allow the press into the courtroom at their own discretion," he said in his acceptance remarks. Nelson has also been president of the Bluegrass Chapter of the Society of Professional Journalists.

Monday, September 13, 2010

Paper appeals ruling on redacted police reports

The Kentucky New Era will appeal a court ruling that allows police to remove addresses and telephone numbers from crime reports before they're released, editor Jennifer P. Brown said Monday. She said Jon Fleischaker, one of Kentucky's top media lawyers, will represent the Hopkinsville newspaper in the appeal of the Christian Circuit Court decision last week.

The case stems from an open records request filed with the city of Hopkinsville by the New Era a year ago for arrest reports and incident reports about a suspicious fire. The city withheld "open case" files, but on those files it released, it removed information on race, gender, date of birth, ethnicity, addresses and telephone numbers.

The paper appealed to the attorney general's office, which ruled that the city could not apply blanket redactions to police reports, but must show case-by-case why certain information should be withheld. The city appealed to circuit court, which initially agreed with the attorney general, but last week amended its ruling to allow for the routine redaction of Social Security numbers, driver's license numbers, home addresses and telephone numbers. The paper agreed on the first two, but will argue against the withholding of addresses and phone numbers in its appeal.

Wednesday, September 8, 2010

Transparency Conference at UK Oct. 19-20

The University of Kentucky's College of Communications and Information Sciences will hold a two-day session next month on Transparency and Open Access to Information that includes a panel on open government and another on open media.
"Open 2.0" will begin Oct. 19 with sessions on Open Geographies, Open Governmenet, Open Media and Open Libraries. The next will have panels on Open Entrepeneurship, Open Finances and Open Source. The main guest speaker on Oct. 20 will be Dr. Sean Gorman, founder and president of FortiusOne Inc., an Arlington, VA-based company "founded to change the way organizations visualize and analyze data for real-time problem solving," according to the company's website. The title of Gormans speech is "What the human sensor net can tell us about markets, society and disaster."
Details of the schedule and location of the conference can be found at http://cis.uky.edu/open.

Tuesday, September 7, 2010

Attorney general's office says 2 fiscal courts and a city commission violated open-meetings law

In decisions released today, the state attorney general’s office said the city of Danville and some county fiscal courts violated state open-government laws. The attorney general's opinions in open-meetings and open-records matters have the force of law unless overruled in court. The attorney general ruled that:

The Nelson County Fiscal Court failed to adequately describe the reason for a closed session June 22. The court had cited both pending and proposed litigation as reasons for closing the meeting. In an appeal filed by Kevin Brumley, the attorney’s office said the state Open Meetings Act requires more than simply a citation of the act and a general statement such as “litigation,” but said the standard was different for “pending litigation” than “proposed litigation” because timing is often crucial in deciding to file a lawsuit, while a pending lawsuit already was on open file at the courthouse. The former reason was insufficient, while the latter was sufficient.

The Rockcastle County Fiscal Court violated the Open Meetings Act by failing to give all the required notices before every special meeting held between Jan. 1, 2008 and May 28, 2010. The ruling came in an appeal filed by County Clerk Norma Houk, who complained that the court had held some 43 meetings in that period without properly notifying those the act requires to be notified. The law requires that 24 hours before the meeting, notice go to members of the court and news media, and that a notice be posted in a conspicuous place in the building where the meeting will be held. The fiscal court also failed to reply to Ms. Houk’s complaint as required by law, the ruling said.

The Milton City Commission in Trimble County violated the Open Meetings Act by failing to give proper notice of two meetings of a quorum of its members at which public business was discussed, failing to record minutes of these meetings, and failing to respond to an open meetings complaint alleging these violations. That ruling came in an appeal filed by Shannon Hoskins over meetings involving the hiring of Water and Sewer Department Supervisor Mark Bates.

In an open-records case, the City of Danville failed to respond to a request for records within the three days required by the Open Records Act, but since the precise records asked for by Clay Moore – “signed copies” of several municipal parking-garage lease agreements – could not be found, the unsigned copies it eventually furnished were sufficient.

Wednesday, August 25, 2010

Whitley County police ordered to release information

The Whitley County Police Department violated the state Open Records Act by refusing the local newspaper's request for a copy of radio traffic and an incident report on a child injured by exploding fireworks, the attorney general's office has ruled.

The police cited both state law on the confidentiality of juvenile court records and the federal Health Insurance Portability and Accountability Act, which protects certain "health information" in refusing the request by Corbin News Journal reporter Dean Manning. But the attorney general's ruling said neither trumped the Open Records Act.

"We find its arguments largely unpersuasive," the opinion said. "The radio traffic and report ... are not juvenile court records." In addition, HIPAA contains a provision that specifically authorizes the release of information "required by law."

The opinion dismissed another justification cited by the police – that the mother of the child injured wanted "no media attention."

"We are reluctant to defer to her wishes in light of the absence of any facts supporting her claim," the opinion said.

Wednesday, July 21, 2010

UK researchers had no right to demand return of document distributed to focus group, AG rules

University of Kentucky researchers improperly refused to allow an audience member to keep material that had been handed out at a focus group session in Paducah, the state attorney general's office ruled last week.
The university was correct in refusing an open records request for the names of participants in a focus group conducted by the Kentucky Research Consortium for Energy and the Environment but did not have the right to insist on return of "visualizations" given out at a subsequent session, the decision said.

The consortium has been studying possible uses for the Paducah Gaseous Diffusion Plant, which enriches uranium. One member of the audience, Mark Donham, had refused to return a document he was given, a computerized "visualization" of the site as a nuclear power plant, one of the uses being considered. After an argument, university representatives threatened to call the police. Donham returned the material then filed an open records request.

The attorney general ruled that the researchers could legally refuse to identify the members of the focus group because they had been promised confidentiality, but there was no such promise regarding the handout materials. "Having afforded Mr. Donham the opportunity to inspect the visualizations, without enforceable restrictions on disclosure, he must be provided with copies of these records," the decision said.

Friday, July 2, 2010

State police repeatedly violated Open Records Act, attorney general's office says

The Kentucky State Police "repeatedly violated" the state's Open Records Act in a disputed homicide case, the state attorney general's office has ruled. One of the state's top First Amendment lawyers called KSP's actions "ridiculous" and an example of the "habitual condition" of the state police in flouting the intent of the records law.

The ruling involved an open-records request filed in April 2009 by Russell and Sharon Loaring of Owenton. They are the court-appointed executors of the estate of Charlotte Burke of Owenton, who was killed in a January 2009 shooting that left Daniel Cobb wounded. Police concluded that Burke shot Cobb, then killed herself.

Cobb filed a damage suit against Burke's estate, engaging Commonwealth Attorney Jim Crawford of Carrollton, who maintains a private practice, as his lawyer. State police gave Baxter the case file, in what he called a "courtesy," and gave part of the file to another interested party, Glenna Smith, by the KSP. But when the Loarings asked the KSP for records involving the case, the agency refused their request, saying the case had not been closed. Repeated requests over the next year were also refused. The Loarings complained to the attorney general's office, which issued the ruling last week. A KSP colonel referred questions to the agency's legal office, which has not returned calls.

The agency has 30 days to appeal the attorney general's ruling to Franklin Circuit Court.

Louisville lawyer Jon Fleischaker, who largely wrote the state Open Records Act, said the KSP's conduct in this case was the latest example of the agency's attitude toward information requests. "This 'the investigation is not closed' stuff -- that's not what the law says," Fleischaker told the KOG Blog. "They've morphed the law." He said the law allows requests to be refused only if an informant would be identified or if disclosure would materially damage an ongoing investigation. He noted, as did the attorney general's opinion, that the law also clearly states that these exemptions "shall not be used ... to delay or impede the exercise of rights" to information by the public.

The attorney general's decision also faulted the state police for refusing to release pictures of the crime because they were "graphic" and constituted an invasion of privacy. The police offered "no proof, beyond a bare allegation, that the privacy interest of the surviving family outwieghed the public's interest in disclosure," the decision said.

"Their position is, 'We're not going to give you anything we don't want to'," Fleishacker said. "It's the habitual positon of the state police."

The attorney general's office said it could not immediately say how many times the state police have been cited for open-records violations, but offered to collect the information and respond later.

For a full text of the opinion, see Links of Interest at the bottom of the blog.

Saturday, June 12, 2010

New blog for Rockcastle County starts with open-government concerns

Issues of open government are the topic of the first post in a new blog for Rockcastle County, where a local water association has barred its customers from attending its board meetings "despite numerous protests by many of its water-user members," blogger Elmer Whitler writes on Rockcastle County News, which he says is "devoted to news and opinion on events and conditions important for improving life for all those who live in Rockcastle County." (Wikipedia map)

The KOG Blog reported on the Eastern Rockcastle Water Association about a year ago, when Attorney General Jack Conway ruled that the association was not covered by the state Open Records Act because it gets less than 25 percent of its annual revenue from the state, and is in no way subject to the Open Meetings Act. "Water users seeking admission to the monthly meetings of the ERWA board have been threatend with arrest and confronted by deputies and the Rockcastle County sheriff," Whitler writes. He notes that Kentucky has 22 non-profit water associations, which "are spending millions of taxpayer dollars they obtain through state and federal grants for water system development. There is little focused regulatory oversight in Frankfort of how these funds are spent."

Whitler is director of research for the Office of Rural Health Policy in the medical school at the University of Kentucky. His work is separate from his blog, but informs it. He writes, "The abuse of openness and the public's right to know is most prevalent in counties that are characterized as high-poverty, low-education, and low-job-opportunity counties. There is a long tradition in these counties of the use of negative forms of political manipulation and control over meager economic resources. It seems that high levels of poverty, illiteracy, and low civic participation are necessary for this form of destructive politics to thrive. This whole process is aided and abetted by keeping the local citizens ignorant of what is being done." Elmer Whitler is trying to change that in his community. Does your community face similar problems? What are you doing about them?

Monday, May 31, 2010

Budgets under review by city councils are open records, AG rules; Midway lets decision stand

A proposed city budget submitted to members of the city council for review is a public document, according to the Kentucky attorney general. Members of the public and the media are entitled to review the document under the Kentucky Open Records Act before it is voted on by the city council. The ruling handed down May 20 reverses rulings of the office from 1996 and 2000.

The dispute began when Heather Rous, a University of Kentucky journalism student who has since graduated, and UK journalism professor Al Cross submitted on April 13 a request to the mayor of Midway for a copy of his proposed budget, which he had submitted to members of the Finance and City Property Committee of the Midway City Council. Students in Cross' advanced reporting class cover the Midway City Council and post stories on the Midway Messenger blog at http://midwayky.blogspot.com/.

Mayor Tom Bozarth declined the request, saying the budget was a preliminary document and therefore exempt from public disclosure. Kentucky Citizens for Open Government appealed the denial, and the attorney general's office ruled a proposed budget is not a preliminary document.

"The proposed budget must be made accessible to the public when it is submitted to the City Council pursuant to KRS 91A.030(7) because it constitutes statutorily required final action of a public agency, in this case, the Mayor of the City of Midway. At this juncture, the budget forfeits the preliminary character it enjoyed while it was in preparation and is no longer a draft. The 'need for governmental confidentiality' accorded the proposed budget prior to submission to the Council must yield to the public’s right to know," the attorney general ruled.

The city has 30 days to file an appeal in Woodford Circuit Court. UPDATE, June 10: Bozarth told the Midway Messenger that the city will not appeal. That clears the way for the decision to be used in similar situations involving other Kentucky cities.

Sunday, May 23, 2010

Judge tells Hopkinsville police to release police records on threats made in city

A circuit court judge has ruled that Hopkinsville officials improperly withheld reports from the Kentucky New Era last year. The mayor told the newspaper the city might appeal the ruling because it could set a bad precedent, but if the Court of Appeals upheld the decision that would give it statewide impact.

The New Era asked Hopkinsville police in September for all reports referencing threats made in Hopkinsville during an eight-month period. "City Clerk Crissy Upton provided more than 400 reports, but withheld others, saying they either involved juveniles or were under investigation," Kevin Hoffman writes for the Hopkinsville daily. The newspaper appealed the denial, and Attorney General Jack Conway ruled all the records should be released. The city appealed, and Circuit Judge Andrew Self ruled for the newspaper, holding the city hadn't shown why one or more exemptions in the Open Records Act applied.

Self wrote that the city's response was “thoughtful based on its interpretation of applicable law,” but refusing to release some reports and redacting identifying information such as race and gender violated the law. “The records requested by the New Era were reasonable, appropriate and consistent with its function as a member of the news media to inform the public of the operations of local government,” Self wrote. “If there is a dispute about which records should be released or withheld, it is incumbent upon the public agency to prove in circuit court why a particular exemption applies. To allow otherwise would be akin to the proverbial fox guarding the hen house.”

New Era Editor Jennifer P. Brown said the law makes public “reports completed by police agencies . . . including arrest citations and the initial incident report that is filed when a citizen calls police to report a crime. . . . If a police agency is allowed to withhold the very proof of its work in the way the city of Hopkinsville wants to withhold these records, it becomes impossible for news agencies and private citizens to understand the types of crimes committed in a community and how police are responding to those crimes. Collectively, police reports offer valuable information about trends and patterns in crime. That information should be available to the public.” (Read more)

Saturday, May 8, 2010

National group offers money to support lawsuits that advance freedom of information

The National Freedom of Information Coalition has received a $180,000 grant to support freedom of information litigation, NFOIC Executive Director Charles Davis said today at the group's annual meeting in Arlington, Va.

Davis said the NFOIC had already used some of the money, from the John S. and James L. Knight Foundation, to support lawsuits in several states. He said the grants were for up to $5,000 for "up-front costs" such as depositions, filing fees and witnesses. Davis said the terms of the grant does not allow payment of attorney's fees, but the guarantee that such expenses will be paid had already encouraged law firms to offer free attorney time. "As long as they're sure they won't be dipping into their wallets to pay fees, a lot of firms are more willing to offer attorneys," Davis said, adding that two suits were settled as soon as the defendants found out about the grants.

The funds are intended to help small, local newspapers and citizens' groups that can't afford to file such lawsuits, Davis said. Grant applications must be made through state groups, such as Kentucky Citizens for Open Government, and NFOIC says it will process them within days.

Judge orders state to release records on death of baby that died at meth lab while in state custody

A Franklin Circuit Court judge has ruled that records on a baby who died after drinking drain cleaner should be open to the public.

Judge Philip Shepherd said there is no reason why records on 20-month-old Kayden Daniels, who died May 30 at an alleged methamphetamine lab, should not be released. The baby's father, Bryan Daniels, has been charged with murder and making meth. Both the child and his 14-year-old mother, Alisha Branham, had been placed in the state foster-care program for abused and neglected children.

The records were requested by the Lexington Herald-Leader and The Courier-Journal, but the request was denied by the state Cabinet for Health and Family Services. The newspapers appealed, and the state attorney general's office upheld the cabinet's decision. Both agencies were wrong, the judge said.

"While it should go without saying, it perhaps must be spelled out in the context of this case: It is not unwarranted for the public, and the press, to want to know what happened when a 20-month-old child in the care and legal custody of the Commonwealth of Kentucky winds up dead after drinking toxic substances in a meth lab," Shepherd said in his ruling.

The judge also said that the state cabinet has a culture that "seeks to avoid public scrutiny." But such secrecy leads to covering up problems, not fixing them, he said. A full text of the ruling can be found at media.kentucky.com/smedia/2010/05/04/13/kaydendanielsruling.source.prod_affiliate.79.pdf.

Monday, May 3, 2010

Attorney general says Whitley County sheriff must reply to records request from newspaper

The state attorney general's office has ruled that Whitley County Sheriff Lawrence Hodge violated the state open-records law by refusing to respond to a request for a list of auxiliary deputies from the Times-Tribune of Corbin. But the paper's editor, Samantha Swindler, says that as far as she can tell, no list has ever been maintained.

The attorney general's opinion came after Hodge failed to respond to Swindler's request, which had been based on an assault case involving a man claiming to be an auxiliary deputy. Hodge told the state office that the list could be found in the county clerk's office. But Swindler says the clerk has told her that, even though such deputies must be sworn in by a county judge, the clerk was never given any information about anyone being sworn in.

Swindler says the county sheriff's office refuses to talk to anyone from her daily newspaper. The federal Bureau of Alcohol, Tobacco and Firearms is investigating the reported theft of guns, drugs and other evidence from the sheriff's office. The newspaper has published several reports on that and other irregularities involving the sheriff's office, including shortfalls in its budget.

The attorney general's opinion noted that while state law regulates the appointment of special deputies, auxiliary deputies are not mentioned. Nonetheless, the sheriff's failure to respond to Swindler was "legally deficient." For a complete text of the ruling, see Links of Interest at the bottom of the KOG Blog.

Thursday, April 22, 2010

KPA appeals over denial of Midway budget

The Kentucky Press Association has appealed to the state Attorney General's office the refusal of Midway Mayor Tom Bozarth to release copies of the city's proposed budget for the next fiscal year.

The Midway City Council is scheduled to discuss the budget proposal on Monday. The Midway Messenger had asked in writing for a copy after Bozarth gave it to council members. Bozarth refused, saying the budget was "purely preliminary" and wouldn't be released until the council has finalized it. The Messenger is a blog and website run by Professor Al Cross at the University of Kentucky's Institute for Rural Journalism and Community Issues as an outlet for stories written by students in his community journalism classes.

In its appeal, the KPA argued that exemptions to the Kentucky Open Records Act relating to drafts and recommendations were limited.

"Our position is that it ceases to fit that phrase ("preliminary") once it is distributed to and discussed by members of a public agency at a public meeting. After all, a budget is the basic policy document for a government," the KPA said.

Midway is located in northern Woodford County, halfway between Lexington and Frankfort. For the Messenger story and a link to the appeal, go here.

Wednesday, April 14, 2010

Beshear signs superintendent-secrecy bill

Gov. Steve Beshear yesterday signed into law Senate Bill 178, which will allow school boards to deliver evaluations of superintendents behind closed doors. Opponents of the bill had asked Beshear to veto it. The law, which takes effect July 14, will reverse recent court decisions. See previous coverage below.

Tuesday, April 13, 2010

Kentucky ranked most transparent state for online government spending records

A new report, rating each state's use of online databases to give the public information about government spending, lists Kentucky as the only state getting an "A" grade. The report from the U.S. Public Interest Research Group, a long-established government watchdog, "evaluates states’ progress toward 'Transparency 2.0' – a new standard of comprehensive, one-stop, one-click budget accountability and accessibility," it says in a news release. The report reveals at least 32 states "currently mandate that residents be able to access an online database of government expenditures with 'checkbook-level' detail."

Kentucky led all states with a grade of 97 percent. The next closest was Ohio at 84. Kentucky's Web site only lost points for not linking funding related to the federal stimulus act and for not including financial information for local and county budgets. "Openness in government has been a top priority of this administration, and it is gratifying that our extensive efforts have not only received notice, but have been ranked the best in the nation," Gov. Steve Beshear said in a statement. "As we face an unprecedented $1.5 billion shortfall over the next biennium, it is more important than ever for government to be transparent and accountable, and for citizens to feel confident that their tax dollars are being used efficiently and responsibly. I’m proud of the efforts we have made, along with the bipartisan support of all of the state’s executive-branch constitutional officers and Kentucky’s judicial branch, to put our checkbooks online for public view in a comprehensive and user-friendly manner." The legislature, also divided between the parties, is likewise moving to put its records in the system. (Read more)

Tuesday, March 30, 2010

Legislature sends Beshear bill to allow superintendents to be evaluated in secret

Only Gov. Steve Beshear stands between the law books and legislation that would allow Kentucky school boards to evaluate superintendents in secret. The state Senate unanimously gave final passage yesterday to the House-amended version of Senate Bill 178. Now Beshear can veto it, sign it into law or allow it to become law without his signature.

"Beshear spokeswoman Kerri Richardson said the governor would carefully review the bill," The Courier-Journal reports. "It requires that final evaluations be discussed and voted on in public. School boards also would have the option of holding the preliminary sessions in public." The bill would reverse recent court rulings based on the state Open Meetings Act, which allows public agencies to discuss personnel matters in secret only if the discussion "might lead to" the hiring, discipline or dismissal of an employee or student.

Louisville lawyer Jon Fleischaker, chief author of the law and attorney for the Kentucky Press Association, told The Courier-Journal, “I think it’s bad for the commonwealth. It’s been the law for … 35 years that these kinds of things would be done openly.” (Read more)

In an op-ed distributed to Kentucky newspapers, Mike Farrell, director of the Scripps Howard First Amendment Center at the University of Kentucky, writes "Kentuckians ought to be asking their state legislators why they are more concerned with protecting school board members and superintendents than watching out for the rights and interests of taxpayers."

On its opinion page, The State Journal of Frankfort has a strong editorial and cartoon, but the online version is available only to subscribers. "This bill is a big step backward for the open conduct of public business," the editorial says. "Boards and superintendents should simply get used to the inconvenience of honesty in public places."

Susie Laun of The Advocate-Messenger in Danville has a story in which several school officials in the area say the legislation "will allow evaluations to go back to what boards used to do." They argue it would make the evaluations more thorough, comfortable and productive.

Friday, March 26, 2010

Good government measure finally moves ahead

A dispute between the two houses of the Kentucky General Assembly apparently has been settled, paving the way for passage of legislation that will require two state government associations to open their operations to the public.

The House of Representatives on Friday approved language that would make the Kentucky League of Cities and the Kentucky Association of Counties subject to open records and open meetings laws, give their boards a code of ethics and allow the state auditor to review their books, according to the Lexington Herald-Leader. The bill also would require the organizations to post their expenditures online and adopt policies on pay and bids.

Passage was delayed by wrangling between the two houses. Similar bills were introduced by Sen. Damon Thayer, R-Georgetown, and Rep. Arnold Simpson, D-Covington. Simpson told the Lexington Herald-Leader that state Auditor Crit Luallen had suggested most of the provisions of the legislation. Each house had passed a version of the bill, but then the process stalled. The House passed a version 94-0 on Friday, and the Senate is expected to go along.

Reporting by the newspaper during the past year uncovered extravagant spending by officials of the two agencies. The revelations led to the resignations of both executive directors, scathing audit reports by Luallen, and calls for reform by legislators and local officials.

The League of Cities and Association of Counties are funded by dues and insurance premiums paid by local governments. The bill would make clear that such groups are subject to open records and open meetings laws, with certain exceptions for their insurance businesses.

(Read more)

Thursday, March 25, 2010

Bill would allow school boards to evaluate superintendents in closed meetings

School boards could evaluate superintendents behind closed doors, under a bill the Kentucky House approved today 67-29. Senate Bill 178 amends KRS 156.557 to require "any preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session." Evaluations would still be presented in an open meeting. The bill, which goes back to the Senate for approval of an unrelated amendment, would reverse recent attorney-general and court decisions.

During the House Education Committee meeting Tuesday, Sara Call, a member of the Frankfort Independent Board of Education, testified her board had twice held closed-door evaluations with the superintendent, which was a violation of current state law, and said superintendent evaluation needed to be conducted in a closed meeting to allow for 'frank, honest and sometimes painful' conversations. "It’s sometimes difficult to be totally honest in front of the press," she told the committee, Stephenie Steitzer of The Courier-Journal reported.

The Kentucky Press Association has voiced strong disapproval of the bill, arguing the evaluation process of the highest-ranking school system employee should be done in open. "We strongly, strongly recommend that you do not pass this bill," Ashley Pack, general counsel for KPA, told the committee.

Applications for business licenses ruled public

The state Court of Appeals has ruled that the Kenton County Fiscal Court violated the Open Records Act when it denied a records request from The Kentucky Enquirer.

In a March 12 decision, the court said the fiscal court interpreted a section of the law too broadly when it denied the newspaper access to an occupational-license application for a restaurant in Crescent Springs. In Kenton County Fiscal Court v. Kentucky Enquirer, 2010 WL 890012 (Ky.App.), the court adopted the reasoning in a line of opinions of the state attorney general's office recognizing that "it is in the public interest to know what businesses and professions have been licensed to exist and operate within the boundaries of the governmental unit."

The court concluded that "it is incumbent on Kenton County to disclose any and all information appearing upon the application as it relates to what professions or businesses are licensed to operate and which does not reveal the affairs of any person or affairs of the business, and to redact the information which does."

Enquirer reporter Jim Hannah asked Oct. 17, 2007, for a copy of the application of Empire Buffet, and the county denied it. The attorney feneral ruled that December that the county's position "reflects a fundamental misconception that records are presumed to be closed unless expressly declared by the legislature or the courts to be open, indeed, that the public has the burden of proving that a record is open," and that the fiscal court was interpreting the law too broadly so "as to authorize blanket nondisclosure of applications for business licenses." That ruling was upheld in Kenton Circuit Court and now by the Court of Appeals.

Wednesday, March 17, 2010

Butler County appeals open-meetings decision

The Butler County Fiscal Court has voted to appeal an open-meetings decision of the attorney general to Butler Circuit Court, according to the Bowling Green Daily News. The decision is 10-OMD-043, issued March 3.

The attorney general's office agreed with Robert D. Cron, a candidate for county judge-executive, that magistrates of the fiscal court violated the state Open Meetings Law by meeting with the county sheriff with less than a quorum to discuss the budget for his office. The attorney general said this violated a section of the Open Meetings Act written to prohibit just such meetings. These closed-door series of secret meetings deprived the public of any information that was discussed regarding policy, operations, salaries, new hirings or a host of other issues related to the operated of the sheriff's department.

In ruling against the fiscal court, the attorney general's office said everyone in the county has a compelling interest in ensuring that the sheriff has enough money to enforce the law countywide, and:

Contrary to the Fiscal Court’s view, the purpose of the Open Meetings Act is not only to prohibit decision makers from making decisions that affect the entire community "in ‘back rooms’ outside the eye of the public," but also "to prevent the decision makers from having discussions of public issues” critical to the broad public interest outside the eye of the public."
This is not the first time the Butler County Fiscal Court has disregarded its obligation to the law and to the citizens of the county by holding secret meetings. A year ago, the attorney general found that the fiscal court's finance committee had violated the open meetings law by not giving public notice of those meetings. A citizen also said a series of meetings had been held to avoid a public meeting. That is opinion 09-OMD-014, issued Jan. 26, 2009.

The law states, "Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section," which provides that “All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times."

The Bowling Green newspaper said in an editorial, "Elected officials in Butler County should back down on this appeal. It is clear they were holding secret meetings. They should also remember they work for their constituents, the taxpayers who pay their salaries, and it is not only appropriate to hold open meetings so they can follow the business of the county, it is the law."

UPDATE, April 9: The appeal has been filed, as a lawsuit against Cron, who is being defended by Louisville lawyer Jon Fleischaker, chief author of the open meetings law, Andrew Thomason reports for the Daily News.

Tuesday, March 2, 2010

Louisville SPJ hosting session on freedom-of-information issues; register by March 10

The Louisville Professional Chapter of the Society of Professional Journalists is hosting a half-day session on the Freedom of Information Act and related issues Saturday, March 13. The event, in partnership with the Institute for Media, Culture and Ethics at Bellarmine University, will be held at Bellarmine's Brown Activity Center from 9 a.m. to noon.

First amendment attorneys Richard Goehler and Monica Dias will present three sessions, according to the SPJ press release. The first will focus on FOIA and open records issues; the second will examine legal issues facing bloggers and other Internet users; and the third will look at recent court decisions on tweeting and blogging inside the courtroom.

The seminar is free for students, $10 for SPJ members and $15 for others. Participants must register by Wednesday, March 10 by contacting Robyn Davis Sekula at robynsekula@sbcglobal.net, or by calling 812-981-8223.

Thursday, February 25, 2010

Senate commttee requires transparency in use of Governor's mansion, aircraft

A state senate committee has moved to transform into law an executive order issued by Gov. Steve Beshear two years ago requiring more transparency in the use of state aircraft and the executive mansion for non-official purposes.

The State and Local Government Committee approved Senate Bill 82, sponsored by Sen. Damon Thayer of Georgetown. It would require the governor to disclose use of the aircraft and the mansion for such things as political fundraisers to the Executive Branch Ethics Commission. The bill also requires disclosure of the governor's legal defense fund and would prohibit businesses bidding for state contracts from making "substantial" campaign contrtibutions to a statewide candidate within 18 months of applying for a contract. The bill does not apply to legislative candidates.

Committee OKs bill for openness in family courts

UPDATE, March 1: The full House passed the bill but its prospects in the Senate are unclear.

A Kentucky House committee has passed a bill that would open some family court proceedings to the public in a pilot project.

The House Judiciary Committee voted 9-1 to approved the bill, House Bill 407, sponsored by Rep. Susan Westrom of Lexington. The measure allows the Kentucky Supreme Court to open to public scrutiny seven family courts and monitor the results for four years. However, while the public would be allowed to attend court proceedings, records would remain secret and no audio or video recordings would be permitted. Judges would be allowed to decide whether to participate in the pilot project.

State Supreme Court Chief Justice John Minton has favored more transparency in family and juvenile courts, but the legislature and court system have been slow to act, despite a series of reports detailing problems in the state system.

"It does lift the veil of secrecy," Westrom told the Louisville Courier-Journal. "It does increase the public's confidence in our justice system."

Increasing transparency in family courts is a trend across the nation, according to Patricia Walker FitzGerald, chief family court judge of Jefferson County, who testified before the committee. FitzGerald said about 30 states allow some public scrutiny of family courts.

The bill now awaits action by the entire House.

Wednesday, February 24, 2010

Louisville Freedom-of-information session March 13

Do you want to add more depth to your stories by obtaining copies of government records, but you aren’t sure how to get them or what records are open to you? Are public agencies making decisions in closed meetings that should be open to the public and the media? Do you have a web site and are uncertain about what non-original material you can legally post on your site, without violating copyright or fair use laws? And what about those comments your readers are posting on your site? Are you legally responsible for what they say? Are judges going too far when they prohibit journalists from blogging or tweeting from the courtroom during a trial? What about live streaming of a trial on the internet?

You can get the answers to these questions at a Freedom of Information seminar, sponsored by the Louisville Pro Chapter of the Society of Professional Journalists, on Saturday, March 13, from 9 a.m. to noon at Bellarmine University. The event will be held in the Brown Activity Center, which also houses Frazier Hall and the student cafeteria, in the communication wing, room 203.

First Amendment attorneys Richard M. Goehler and Monica Dias with the law firm of Frost Brown Todd, will present three lively and informative sessions. The first will focus on FOI and open records issues. The second will address legal issues facing bloggers and other operators of internet web sites. And the third will examine the latest judges’ decisions regarding tweeting and blogging from inside the courtroom. Each session will last about 50 minutes. These are interactive sessions where you will have the opportunity to ask legal experts questions on these important topics.

The cost for attending all three session $10 for SPJ members and $15 for non-members. Those who join SPJ at the event may attend for free. Admission is free for students

Registration will begin at 8:45 a.m. The first session will begin at 9 a.m. The final session will conclude at noon.

You must register by March 10 by contacting Robyn Davis Sekula at robynsekula@sbcglobal.net, or calling 812-981-8223.

Friday, February 19, 2010

Bill to open child-abuse death records turned into one for a study that wouldn't be done until 2012

The sponsor of a state House bill that would have required the release of records on children who die from abuse or neglect has amended his proposal to call for more study on the issue instead.

After Rep. Tom Burch of Luisville altered the bill, it passed the House Health and Welfare Committee 13-0. Burch said he was taking into consideration concerns about the bill from the Cabinet for Health and Family Services, but that he still supported opening up the records. He told the Lexington Herald-Leader he believes his bill will ultimately lead to more public scrutiny of child-abuse deaths. Kentucky had the highest rate of child death from abuse and neglect in the United States in 2007, according to a study by the advocacy group Every Child Matters Education Fund.

The new version of the bill calls for a panel that would make recommendations by Sept. 30, 2012.

Sunday, February 7, 2010

Senate passes bills to open legislative finances, associations of local governments

The Kentucky Senate last week passed without dissent two bills that would make the actions of state government and associations of local governments more open. The bills are now in the House.

Senate Bill 40, sponsored by Republican Sen. Damon Thayer of Georgetown, would require all state agencies and universities to put their spending records on line by Jan 1, 2011. The bill calls for monthly updates of the amount and description of spending, including any documentation available electronically, for the main databases, while the state's electronic accounting system would be updated weekly.

The bill would do for the executive branch much the same done by the OpenDoor Web site and searchable database that the administration of Democratic Gov. Steve Beshear put on line last year. The judicial branch recently joined the system; the bill would effectively put the system into law and make the legislative branch part of it.

Senate Bill 87, also sponsored by Thayer, would extend the same requirements to the Kentucky League of Cities and the Kentucky Association of Counties, and require them to follow state purchasing rules and "adopt ethics and anti-nepotism rules," Jack Brammer reported for the Lexington Herald-Leader. The paper's reporting on expenses of the two groups led to the resignations of both executive directors.

KLC and KACo are funded by dues and insurance premiums paid by local governments. The bill would make clear that such groups are subject to open-records and open-meetings laws, with certain exceptions for their insurance businesses, and require an annual audit of each group’s finances, with the state auditor given access to the findings. House Speaker Greg Stumbo has said he expects the bill to pass the House. (Read more)

Tuesday, February 2, 2010

Mt. Vernon officials violated open meetings law

The Mt. Vernon City Council and Mayor Clarice Kirby violated Kentucky's open meetings law, according to a ruling from the office of Attorney General Jack Conway.

The opinion issued Jan. 25 said the council had "discussed and voted upon public business during a series of less than quorum meetings by telephone, and the members attending one or more of the meetings collectively constituted a quorum." The council also failed to issue a written response to a complaint about the action submitted to council members by Don Jones. Both are violations of the Kentucky Open Meetings Law.

Mayor Kirby was indicted in December on charges of bribery, insurance fraud, official misconduct and two counts of abuse of public trust. She has pleaded not guilty, according to the Lexington Herald-Leader. As a condition of her release from jail, a judge ordered that Kirby not exercise sole authority to pay city bills or spend public money.

The attorney general's ruling said that within several days of her release from jail, Mayor Kirby directed the city clerk to poll "each member by telephone regarding the public business of paying bills and the scope of her authority relative to same."

The Open Meetings Act prohibits “meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act.”

For the full text of this and other state attorney general opinion issued today, see Links of Interest below. The opinion is 10-OMD-015.

Monday, January 25, 2010

Mississippi journalists fight government secrecy

The Rural Blog reports that the Mississippi Press Association, The Associated Press and the state's freedom-of-information center are teaming up in another effort to fight government secrecy. To see the story, go to http://irjci.blogspot.com/.

Friday, January 22, 2010

AP chief says journalism includes using open-government laws and fighting for better ones

Using freedom-of-information laws and fighting for stronger ones is "journalism by other means" and should be an essential function for journalists, their employers and their membership organizations, Tom Curley, president of The Associated Press, told the Kentucky Press Association today.

Keynoting KPA's convention at the Embassy Suites in Lexington, Curley said America's broad body of statutory and case law for open government is "terribly vulnerable" because of changes in the friendly "ecosystem" that has built "this fragile edifice of laws and rules." He said the ecosystem includes news organizations that are suffering financial pressure and journalism organizations that are seeing their membership ranks wither. Also, "Courts and judges, sometimes at the highest level, are part of the problem they are supposed to help us solve," Curley said.

Curley said that in tough economic times, when so much emphasis is on maintaining audience and generating revenue, he was glad to see the KPA convention had several sessions related to freedom of information. The centerpiece of the program was the Better Watchdog Workshop of Investigative Reporters and Editors, aimed at helping newspapers do better watchdog journalism about government and other institutions.

The convention concludes tonight with the annual awards banquet. At the luncheon where Curley spoke, the Lexington Herald-Leader presented its annual Lewis Owens Community Service Award to the Beattyville Enterprise, a small weekly paper that continued publishing after its offices were destroyed by fire. "We are all inspired by your story," Curley told Enterprise Editor Edmund Shelby, who completed his year as KPA president at the event. The new president is Chip Hutcheson of The Times Leader in Princeton.

Wednesday, January 20, 2010

Attorney general approves Hopkinsville council's vague motion for 'appropriate legal action'

The Hopkinsville City Council was justified in deliberately leaving vague its motion to take action after a closed discussion because the matter involved legal strategy, the state attorney general's office has ruled.

The Kentucky New Era newspaper had complained that the council, which met in closed session to discuss litigation with AT&T, had "violated the spirit and foundation of Kentucky's Open Meetings Act" when it voted only to "take appropriate legal action" following the secret discussion. The attorney general's decision said that while "such a vaguely worded motion might, under a different set of facts, represent little more than a strategem to 'shield the agency from unwanted or unleasant pulbic input, interference or scrutiny'," in this case the council was justified in trying to protect its legal strategy, and therefore did not violate the law.

For a full text of this and other recent attorney general rulings, see Links of Interest below. The opinion is 10-OMD-007.

Sunday, January 10, 2010

Hopkinsville appeals attorney general's decision, fights to keep certain police records secret

The city of Hopkinsville has appealed an attorney general's decision that city officials should give the Kentucky New Era with certain police records that the city says it does not have to disclose.

The newspaper asked city police for reports "referencing any threats made in Hopkinsville during an eight month period," Julia Hunter of the New Era writes. "City Clerk Crissy Upton provided more than 400 reports, but withheld all reports regarding juveniles, any reports under investigation and redacted “personal information” of victims and offenders. The information redacted included gender, race, ethnicity and addresses."

The New Era appealed to the attorney general's office. In December, Attorney General Jack Conway agreed with the newspaper, saying the city has failed to justify its stance with specific arguments. The appeal goes to Circuit Judge Andrew Self.

Tuesday, January 5, 2010

Foundation gives $2 million for open-records battles

Battles for freedom of information often stop for lack of financial ammunition. Now help may be available, thanks to a three-year, $2 million grant from the John S. and James L. Knight Foundation to the National Freedom of Information Coalition.

The grant will create the Knight FOI Fund, which "will fund up-front costs such as court costs, filing fees, depositions and initial consultation fees, if attorneys are willing to take cases that otherwise would go unfiled," NFOIC announced. The grant application was prompted by an NFOIC survey that found almost 80 percent of its members' lawsuits to open public records in their states had become less numerous, and 60 percent said it had dropped dramatically. And 85 percent predicted that FOI litigation would drop dramatically over the next three years. NFOIC blamed "the economic crisis and the evolution of the news media" and cited several specific examples in its release.

Monday, January 4, 2010

Paper entitled to records on county loan to rival, or a better reason why kept secret, AG says

The McCreary County Fiscal Court and the county Industrial Development Authority need to give one of the county's newspapers records relating to a $60,000 loan the county made to the other paper to start a television station, or they must explain why it shouldn't, the office of the attorney general ruled in an open-records decision released today.

The McCreary County Record asked County Judge-Executive Blaine Phillips for "any documentation concerning a loan to The McCreary County Voice and/or its agent, Patricia Stephens." Phillips declined, citing to News Editor Janie Slaven the exception in the Open Records Act for "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained in conjunction with an application for or the administration of a loan or grant."

The decision, written by Assistant Attorney General Amye Bensenhaver, said, "While it is possible that some records, or portions of records, submitted by the loan applicant, such as financial statements or a description of the applicants’ financial stability, may qualify for protection . . . KRS 61.880(2)(c) assigns the burden of proof in sustaining the denials of Ms. Slaven’s requests to the agencies, and no proof of any kind is submitted in support of those denials. It is for this reason that the agencies’ responses are both procedurally and substantively deficient."

The decision puts the ball back in the county's court, to turn over the records, give a more detailed reason or challenge the opinion in circuit court. Here is the Record's Nov. 25 report on the loan. The Voice Web site is at http://newspaper.tmcvoice.com/.