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.

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.