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.

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)

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.

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.