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The ruling also cited a previously unpublished decision of the Kentucky Court of Appeals in January 2009, before the Kentucky Open Government Blog began.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.

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.

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.

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.