Nominate a local open-govermnent hero for national recognition during Sunshine Week

For the observance of Sunshine Week, March 11-17, you are invited to nominate individuals who have played significant roles in fighting for government transparency. Get the nomination form here. All nominations must be received by Feb. 20.

The 2012 Local Hero will win an expense-paid trip to the American Society of News Editors convention April 2-4 in Washington. Second- and third-place winners will receive $500 and $250, respectively. ASNE and the Reporters Committee for Freedom of the Press sponsor Sunshine Week. For more information and the free materials available to all participants, visit the Sunshine Week website.

Elected public officials have a lower expectation of privacy, AG reiterates in Louisville constable case

The state attorney general’s office recently found that the Department of Criminal Justice Training improperly withheld records that could reveal whether Constable David Whitlock of Louisville successfully completed the classes in which he was enrolled at the department, as well as any certifications he received.

Whitlock was involved in a shooting altercation at a Louisville store recently, raising questions about his training and whether he had completed the courses that the Louisville Metro government requires constables to take in order to get performance bonds. When Courier-Journal Staff Writer Joseph Lord requested the records on Nov. 4, the department gave him with a copy of Whitlock’s transcript showing which courses he attended and the number of hours for each course, but excluded the test scores, citing the "clearly unwarranted invasion of personal privacy" exception of the Open Records Act.

Attorney General Jack Conway said that as an elected public official, Whitlock represents the public in his work and answers to the voters, so the public has more legitimate interest in him than a general public employee. "Inasmuch as Constable Whitlock, a publicly elected official, enrolled in classes which related to his work and were intended to better qualify him to discharge his duties, the public is entitled to know whether he successfully completed those classes," Conway said.

The decision said it stands for the notion that elected public officials have a lower expectation of privacy than a non-elected public employee, and reiterates a previous decision “that the privacy rights of the public employee extend only to matters which are not related to the performance of his [or her] work.”

Disclosing total fees for sewer project does not invade customers' privacy, attorney general rules

The City of Danville violated the state Open Records Act substantively and procedurally when it failed to respond timely and gave an invalid reason for refusing to reveal fees generated by a sewer project, the state attorney general's office has ruled.

On Oct. 12, Clay Moore requested “one copy of the revenue received by the City of Danville, by month for 2009, 2010, and 2011, to date, from commercial and residential sewer fees generated from the Mocks Creek Sewer Project for Northpoint [Training Center], Hunt Farm Subdivision and residential customers of Gwinn Island.”

Moore did not receive a response within three days as the open-records law mandates, and he appealed to Attorney General Jack Conway. On Oct. 31, 19 days after the original request, the city clerk issued a response denying the request on grounds of privacy, the exemption found at KRS 61.878(1)(a). Conway ruled that “disclosing the requested aggregate information would not identify the water and sewer usage of specific individuals,” so “that information cannot properly be characterized as personal.” The law says the exemption applies only in case of “a clearly unwarranted invasion of personal privacy.”

The attorney general noted a similar case prompted by the city's refusal to let Moore see similar records, and stressed that “the interest of the public in ensuring that the Department has and fairly enforces uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.” He noted that the city had “generic billing information without individual customer names which could be used to verify billing methodology and calculations.”

Child-abuse records were opened in 1990s

Though it made big, breaking news last week, releasing state records about severe child abuse isn't new in Kentucky, writes Joseph Gerth, right, in a column in The Courier-Journal.

"During Gov. Brereton Jones' term in office from 1991-1995, the state social-work agency released child-fatality reports on its own," he writes. "That came after an earlier tragic death of a child in Wayne County who was beaten to death by his stepfather after numerous contacts with state social workers."

Gerth's column comes after last Tuesday's announcement by Gov. Steve Beshear that he ordered the Cabinet for Health and Family Services to release records pertaining to children who have been killed or nearly killed as a result of abuse or neglect. "Transparency will be the new rule," he said.

Gerth said Beshear "finally gave in to mounting pressure from the media, an angry judge and frustrated legislators to release the records involving the death of a Wayne County toddler who drank drain cleaner that was allegedly being used to produce methamphetamine," Gerth writes. The C-J and the Lexington Herald-Leader had long been suing the cabinet to release documentation pertaining to the case and Franklin Circuit Judge Phillip Shepherd had twice ruled the cabinet do so.

In the 1990s, it was then-cabinet Secretary Masten Childers II who ordered that child-fatality records be released. "The reports showed that the agency wasn't doing its job and that low-paid social workers were stretched thin and handling too many cases," Gerth writes. "Jones ultimately called for raising the pay for the lowest-paid social workers ... and he called for hiring 60 more social workers across the state. Could it have been that Childers believed more in openness than the current secretary, Janie Miller?" (Read more)

Whitley County clerk ignores open records decision

The Whitley County Clerk has decided to ignore an opinion of the Attorney General's office that she is charging too much for copies and that record-seekers are within the law when using their own scanners to make copies.

Whitley County Clerk Kay Schwartz told the News Journal that she is posting her own rules, setting a fee of 50 cents per page for record copying and barring the use of hand-held scanners. Both practices violate an attorney general's opinion issued Oct. 13.

Allison Martin, communications director for Kentucky Attorney General Jack Conway, told the News Journal that since the ruling wasn't appealed within 30 days, it has the force of law.

"The Whitley County Clerk is in violation of the law by charging 50 cents per copy," Martin said.

Clerk Schwartz is the president of the Kentucky County Clerks Association. She said the association will try to convince the legislature to set the copying fee at 50 cents per page. The current allowable fee is 10 cents per page. In the meantime, unless her practice is challenged in court, she is continuing to defy the law.

Read the News Journal story here.

Small, weekly newspaper beats stonewalling state agency in case of adopted child's murder

When a 9-year-old girl was found beaten to death and her adoptive brother was charged with murder, the local newspaper wanted to know what the state child-welfare agency had done, or not done, with the family in the four years Amy Dye, left, had been placed there. The Kentucky Cabinet for Families and Children stonewalled the Todd County Standard, but the small, weekly newspaper fought in court and a judge found that the agency had violated the state open-records law -- and prevented further stonewalling on appeal by putting the records in his ruling.

The records paint "deplorable picture of what happens when those who are assigned to protect a child fail," Editor-Publisher Ryan Craig wrote in his Nov. 9 paper. Franklin Circuit Judge Philip Shepherd of Frankfort "said that Amy was put in the Dye home despite there being a 'substantiated' incident of child abuse prior to her placement" and the case is an "example of the 'potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny'," Craig wrote.

In his Nov. 16 edition, Craig reported that a closer look at the records showed "that the cabinet made a choice within a few days of Amy Dye’s death and a day after the Standard filed an open records request to declare the scope of the investigation in a way that would keep the files from becoming public," by classifying its probe as a "neglect investigation" instead of a "fatality investigation," which by law must be public. His story noted that "Officials with the Cabinet delayed nearly two weeks — violating open-records laws — before even responding to the Standard’s initial request for records. Then when the Standard received a response, it was told there were no files whatsoever on Amy Dye."

The Standard is not online, but we have posted PDFs of its Nov. 9 front and jump pages here and here and its Nov. 16 pages here and here. The photo of Amy is from The Courier-Journal of Louisville, which reported on the case in detail today. For the story by Deborah Yetter, go here.

Legislative committee may review transparency of state cabinet in child abuse death records

The co-chairs of the legislative committee that oversees the state's health and welfare services say they hope to hold a hearing in December about the state's handling of records regarding deaths and near deaths of kids in Kentucky's child-welfare system.

The Lexington Herald-Leader reported Nov. 17 that Democratic Rep. Tom Burch and Republican Sen. Julie Denton, both of Louisville, said they want to hold hearings on whether the Cabinet for Health and Family Services is being transparent in the way it reports deaths and near-deaths of children under its supervision.

The cabinet has lost three open-records lawsuits recently because of its failure to make public its records in the deaths of several children under the cabinet's supervision.

Read more of the story.

Social worker who handled case of murdered child resigns after another child's death

A social worker for the state's Cabinet for Health and Family Services resigned in October before she was fired in the aftermath of a child's death.

The Lexington Herald-Leader reported Nov. 18 that supervisors wanted to fire the employee, citing claims that she didn't fully investigate a June 14 report about a three-year-old girl's arm being broken. According to state records, the supervisors believed the social worker failed to properly investigate allegations of physical abuse of a Christian County girl who died less than a month later. Her father has been charged with murdering her.

The girl, Alayna Adair, died July 2 after being taken to a Nashville hospital. Her father, Charles T. Morris, 22, is charged with murder.

The same social worker, according to state records, also helped handle reports of physical abuse of Amythz Dye, the nine-year-old Todd County girl beaten to death by her adoptive brother in February. Franklin Circuit Judge Phillip Shepherd ruled earlier this month that the state's records regarding her death must be made public. The Todd County Standard filed the lawsuit to obtain access to the records. To read about the judge's ruling in the case, read a report at KyForward.com.

According to the Lexington Herald-Leader, a spokeswoman for Attorney General Jack Conway said the office has been notified of the allegations against the social worker. The spokeswoman would neither confirm nor deny the existence of an investigation. (Read more)

UK hosts annual First Amendment Celebration

An award-winning investigative reporter, author and journalism professor will deliver the annual State of the First Amendment Address at the University of Kentucky Tuesday, Nov. 15.

Mark Feldstein, author of "Poisoning the Press," is the featured speaker at the annual First Amendment Celebration sponsored by the Scripps Howard First Amendment Center and the UK School of Journalism and Telecommunications.

Feldstein worked as an on-air investigative correspondent at CNN, ABC News, and several local television stations during a 20-year career. For his work, he won the Edward R. Murrow broadcasting prize and two George Foster Peabody medallions.

And for his work, he was beaten up in the United States, detained and censored by government authorities in Egypt, and escorted out of Haiti under armed guard. His exposes led to resignations, firings, multimillion-dollar fines and prison terms.

Feldstein’s 2010 book, "Poisoning The Press," documents the bitter relationship between Jack Anderson, a journalist whose column damaged and destroyed political careers, and President Richard Nixon. Feldstein was once an intern for Anderson, whose column, "Washington Merry Go-Round," was immensely popular. The book has received widespread critical acclaim and earned top academic awards for research.

Feldstein is a graduate of Harvard and earned his doctorate at the University of North Carolina at Chapel Hill. He is the Richard Eaton Professor of Broadcast Journalism at the University of Maryland.

Feldstein has been published in numerous peer-reviewed journals; he has also won awards for his scholarship from the American Journalism Historians Association and other academic organizations. He is widely quoted as a media analyst by leading news outlets in the United States and abroad, and has testified as an expert witness on First Amendment issues in court cases and before Congress.

The State of the First Amendment Address will be given in Room 106 of the White Hall Classroom Building. The program begins at 5:30 p.m., Tuesday, Nov. 15, and is free and open to the public.

At the celebration, Al Smith will be presented with the annual James Madison Award for Service to the First Amendment. Smith, a Kentucky editor and publisher, founded and hosted Kentucky Educational Television’s “Comment on Kentucky” program, a weekly discussion of public affairs.

The Scripps Howard First Amendment Center, housed in the university’s School of Journalism and Telecommunications, seeks to promote understanding of the First Amendment among citizens of Kentucky, to advocate for First Amendment rights in the Commonwealth and nationally, and to produce internationally recognized scholarship concerning the First Amendment and its related freedoms.

Al Smith to receive James Madison Award

Al Smith, who created "Comment on Kentucky," a statewide forum that has fostered public discussion of Kentucky policy and politics, has been chosen the 2011 recipient of the James Madison Award for service to the First Amendment.

Smith will receive the award on Tuesday, Nov. 15, at the annual First Amendment Celebration held by the Scripps Howard First Amendment Center and the University of Kentucky School of Journalism and Telecommunications.

The award is presented annually to a Kentuckian who has made a significant contribution to the values embodied in the First Amendment's guarantee of freedom of speech and of the press. During his distinguished career, Smith was a tireless advocate for open government as a newspaper editor, publisher and industry leader, and television program producer.

“Throughout his distinguished career, Al Smith has promoted and fought for the values that embody our treasured freedoms of expression," Mike Farrell, director of the Scripps Howard First Amendment Center, said. "His life’s work, as a faithful steward of the First Amendment, has enlightened citizens, invigorated our public discourse and held the powerful accountable. Kentucky has been blessed because Al Smith made the state his home and because journalism was his calling.”

"Comment on Kentucky,” a public affairs program broadcast on Kentucky Educational Television each Friday, debuted in November 1974. Smith was its host, discussing with a panel that included journalists, professors and other experts important issues to Kentucky, until he retired 33 years later.

Smith, of Lexington, is the author of a memoir, Wordsmith: My Life in Journalism, which was published this month.

The Madison Award was created by the Scripps Howard First Amendment Center in 2006 and is awarded annually to a Kentuckian who has made significant contributions to the efforts of a free press or freedom of speech. Smith is the sixth recipient.

The Madison Award will be presented at 5:30 p.m. on Nov. 15. Mark Feldstein, former investigative reporter for CNN and ABC News, will then deliver the State of the First Amendment address. The event is free and open to the public in Room 106 of the White Hall Classroom Building on the UK campus.

Greenup sheriff fails to answer records request; that's ruled a violation of state law

The Greenup County Sheriff's Department has violated the Kentucky Open Records Law by failing to respond to a request for records.

On September 16, 2011, John M. Smith submitted an open records request to the sheriff’s department for evidence log sheets relating to a specific case. The department did not respond to Mr. Smith’s request, and on October 3 Mr. Smith filed an appeal to the Office of the Attorney General. The sheriff’s department had yet to respond to Mr. Smith’s request for evidence log sheets or this appeal when the attorney general issued its opinion on Nov. 3.

That inaction violates the Open Records Law, which reads "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision."

The attorney general's opinion stated public agencies such as the sheriff's department are not permitted to elect a course of inaction and ordered the Greenup County Sheriff’s Department to provide Mr. Smith with copies of his request unless the department can provide him, in writing an acceptable legal basis to deny the requests.

UK's refusal to release cancer registry data violates Open Records Act

The University of Kentucky violated the Kentucky Open Records Act in denying Dr. James W. Coleman’s August 1, 2011, request for “statistical information on female breast cancers in Jefferson County,” according to a recent opinion of the Attorney General's Office.

In response to the request, Official Records Custodian Frank Butler advised Dr. Coleman that the “Kentucky Cancer Registry does not maintain the data you have requested in the format you have requested, he [Dr. Coleman] may apply for a dataset as described on the…website, and that KCR records are confidential by statute.”

The attorney general found UK’s reasons for the denial flawed. The opinion, dated Nov. 1, stated that, a “database is unquestionably a ‘public record’ as that term is defined in the Open Records Law. Dr. Coleman’s request sought information from the Kentucky Cancer Registry, which UK maintains by incidence and mortality rates for more that 70 cancer sites in the state.

The university’s first ground for the denial was that it could not sort the data by zip code and thus could not respond to the request. The attorney general rejected this argument because “UK is not statutorily required to tailor the format of its existing database to conform to the parameters of a request submitted under the Act; however, the alternative is generally to provide a requester with a copy of the entire database after those fields of information for which statutory protection exists, if any, have been redacted.”

The second reason was that UK told Dr. Coleman he could apply for a data set online. This argument was rejected by the attorney general because of KRS 61.874(3), which states that “if a public agency is asked to produced a record in non-standardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.” While this provision is discretionary the other option is to release the entire database. If UK did not want to sort the information requested by zip code then it was supposed to release the whole database in order to let Dr. Coleman sort it himself.

The third reason UK cited was that all cancer registry data is confidential under state law. The attorney general's opinion rejected this argument as well, restating what it had held in a 2004 opinion, the “prohibition on disclosure of data is not … absolute, but is instead confined to data identifying any person whose condition or treatment has been reported to the (Kentucky Cancer Registry.)”

Since the attorney general rejected all of the university’s reasons for the denial, and the university could not provide more detailed information on how the database is maintained, the attorney general found that UK did violate the Open Records Act by refusing to provide Dr. Coleman with access to responsive data that did not describe or identify a particular person. An Open Records Opinion of the Office of Attorney General has the force of law unless appealed to circuit court.

Butler County loses another Open Meetings appeal

Butler County Fiscal Court has violated the Open Meetings Law again; this time, the court failed to distribute an agenda to fiscal court members for its September 14 special meeting 24 hours before the meeting.

The Open Meetings Law requires public agencies to deliver a special meeting notice consisting of the date, time, and place of the special meeting and the agenda for the special meeting at least 24 hours before a special meeting.

In this case, fiscal court members received a copy of the agenda minutes before the meeting began. The fiscal court argued that this was a mere technical violation because there was reference to the special meeting on the September 12th regular meeting agenda. The fiscal court, through County Attorney Richard J. Deye, reasoned that this reference gave adequate notice of when the special meeting would be and what its purpose was.

In its response issued Nov. 1, the Office of the Attorney General restated two important principles:

"The [Open Meetings] Act does not recognize a class of violations of lesser gravity than the remaining violations and therefore capable of being dismissed as merely “technical.”

“The failure to comply with the strict letter of the law in conducting meetings of a public agency violated the public good.”

In a letter to the attorney general, County Attorney Deye argued, “[t]he only provision of the Open Meetings Law that was violated is that the magistrates did not receive a piece of paper twenty-four hours in advance . . . . One must struggle to discern how the actions of the Butler County Fiscal Court compromised the citizens of Butler County.”

The attorney general's office answered that claim in the opinion, "Neither this office nor the Butler County Fiscal Court need 'struggle to discern' how the interests of the citizens of Butler County were compromised by the Fiscal Court’s failure to comply with the express requirements of the Open Meetings Law. The law recognizes harm any time an agency acts in derogation of these requirements regardless of how inconsequential its actions may appear to the agency."

The opinion also noted that the law does not empower the attorney general to impose fines or negate actions because of Open Meetings Law violations, but the law does allow a circuit court judge to impose penalties.

Broad request for cell phone information is denied

The Lexington-Fayette Urban County Government Division of Police properly denied a request for copies of cell phone records, according to an opinion of the attorney general's office.

The documents sought pertained "to the ability of law enforcement officers to obtain records from cell phone companies that reveal the past or present travels of cell phone users” over a two and a half year period.

The division reasoned that this request was overly burdensome as it could not accurately estimate the number of records encompassed by the request and that it would cause division personnel to manually search more than a thousand case files and more than a million e-mails.

The attorney general's opinion on Nov. 4 agreed with the division and stated that the scope of the request “represents an impediment to access and that the volume of record implicated by the request magnifies the possibility of harm to open investigation/enforcement action through inadvertent disclosure of protected matter.”

Tax payments plans deemed open records

The Attorney General's Office ruled on Oct. 31 against the Marshall County Attorney’s failure to disclose records relating to delinquent property tax payment agreement plans.

Marshall County Attorney Jeffrey G. Edwards denied a citizen’s request to view the records based on the fact that these tax payment plans contain confidential information about the taxpayer and the agreements were not fully discharged and therefore preliminary.

The county attorney said he relied upon exemptions in the Open Records that protect preliminary drafts and public records made confidential by the General Assembly, citing the privacy of tax returns.

The attorney general's office disagreed with Mr. Edward’s application of the law to tax payment agreement plans. The opinion, which has the force of law unless appealed to circuit court, explained that “these prohibitions do not extend to any matter properly entered upon any assessment record, or in any way made a matter of public record .... and therefore, the payment plans do not afford protection under these statues nor can they be considered preliminary drafts.

Given that delinquent property taxes become a public record when the county clerk records a lien for the amount owed and publishes a notice of all delinquencies in the newspaper, the attorney general's opinion explained that delinquent taxpayers therefore do not have a reasonable expectation of confidentiality in the information contained in the payment agreement.

Additionally, the county attorney’s authority to make these payment agreements is a matter of public interest; the public has a right to monitor the operation of the government, which clearly encompasses the county attorney’s collection duties.

State cabinet loses another open records lawsuit

The state Cabinet for Health and Family Services came under a withering attack from a state judge, who said the cabinet turned a blind eye to repeated reports a nine-year-old girl was being abused at home.

Franklin Circuit Court Judge Phillip Shepherd ruled Nov. 7 the cabinet must release its records involving Amythz Dye, a nine-year-old who, according to court records, was beaten to death by her adoptive brother. Garrett Dye, 17, pleaded guilty on Oct. 21 in Todd Circuit Court to murdering her on Feb. 4 by beating her in the head with a jack handle. When she was killed, Amythz was shoveling gravel as punishment for stealing pudding and juice from a friend’s lunch box at school, according to Shepherd’s order.

Garrett Dye, who was prosecuted as an adult, will be sentenced Nov. 23.

"This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny," Judge Shepherd wrote. In his decision, he notes the cabinet received eight reports that the girl had suffered injuries that were suspicious.

"In this case, an innocent nine-year-old girl was brutally beaten to death after enduring months of physical and emotional abuse in a home approved by the Commonwealth of Kentucky for her adoption, notwithstanding a substantiated incident of child abuse in that home prior to her placement there and notwithstanding repeated reports of abuse and neglect later made by school officials to the Cabinet for Health and Family Services prior to her murder."

It is the third time, the second in four days, that Judge Shepherd has ruled for public inspection of documents involving the death of children under the supervision of the cabinet. In all three cases, the cabinet had refused open records requests for the records, arguing federal law required it to maintain confidential records.

But Judge Shepherd ruled, citing congressional records, that the federal legislature never intended to allow state governments to protect their actions from public scrutiny in such cases.

“The Open Records Act is the only method available by which the public and the legislature can obtain information regarding the systematic breakdown of our child protective services that contributed so directly to this child’s death,” Shepherd wrote.

The lawsuit was filed by the Todd County Standard. The weekly newspaper sought records which the cabinet initially indicated did not exist. For the paper's story, click here. The Courier-Journal's story is here.

Hospital appeals attorney general's ruling

University Hospital of Louisville has filed a lawsuit in Jefferson County Circuit Court to overturn an open records opinion of Attorney General Jack Conway that the hospital is a public agency under the Kentucky Open Records Act.

The attorney general's opinion issued Oct. 5 declared University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." The university has argued University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal.

Conway's ruling could affect the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System. If the court upholds the attorney general's opinion, the state will have a say in the merger. The ruling means the documents pertaining to the merger itself would have to be made public.

Because it deals with an open-records issue, Conway's opinion has the force of law unless overturned in court, which resulted in the hospital's lawsuit.

According to the Courier-Journal, University Hospital is Louisville's safety-net hospital for the poor. It received $61 million from the state and $7 million from the city for indigent care last year.

The lawsuit argues that the hospital is a private, nonprofit corporation because it is controlled by a board of directors, not the University of Louisville.

For more information, read the Courier-Journal's story. Read the Open Government Blog entry about Attorney General Conway's opinion here.

Judge rules against state, cites 'culture of secrecy' in ruling opening records in child abuse deaths

A state judge has ruled for the second time in 18 months against the efforts of the state Cabinet for Health and Family Services to keep records of the deaths of children in its care hidden from public inspection.

In a stinging rebuke, Franklin Circuit Judge Phillip Shepherd, right, blasted the cabinet for refusing to follow a decision he issued in 2010 on the same issue.

"The Court must conclude that the cabinet is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law," Shepherd wrote in an opinion filed Nov. 3.

The cabinet argued, as it did in the previous lawsuit over records of a child in its care, that federal law keeps it from opening the records. Shepherd rejected that argument for a second time and said both state and federal laws include an exception to that confidentiality when a child dies or nearly dies while under state supervision.

Shepherd cited passages from records of the U.S. Senate and House establishing that it was never the intent of Congress to allow state governments to protect their actions from public scrutiny in such cases.

"The Cabinet simply cannot use the defense of privacy to shield itself from the explicit statutory mandate designed to allow public accountability for agency actions or omissions in the most egregious of cases that result in a child fatality or near fatality," Shepherd wrote.

The Lexington Herald-Leader and The Courier-Journal filed the lawsuit after the cabinet refused to give reporters access to records concerning the deaths or near-deaths of abused and neglected children under its supervision.

Jon Fleischaker, an attorney for The Courier-Journal, called Shepherd's ruling a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse.

“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker told the Louisville newspaper for its story. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”

Fleischaker called on Gov. Steve Beshear to intervene to ensure that the cabinet complies with Shepherd's ruling.

The judge gave the cabinet 10 days to negotiate with the newspapers over release of the records, recognizing the cabinet might need time to gather and copy the records it must hand over. If the parties can't agree, the judge will hold a hearing. He left open the question of requiring the state to reimburse the newspapers for legal expenses in the case.

Cabinet officials told the Herald-Leader Thursday that they have not decided whether they will take the case to the Court of Appeals. Cabinet attorneys believe the ruling could affect "incidences of child fatalities or near-fatalities that include no prior contact with the cabinet or the court system," said Jill Midkiff, a spokeswoman for the cabinet.

The Courier-Journal filed an open records request with the cabinet seeking records of its investigations into the deaths of children under its care between July 1, 2009, and Dec. 17, 2010, as well as records concerning the deaths of two children in 2008. The Herald-Leader filed for records for the period July 1, 2009, to June 30, 2010. When the cabinet denied their requests, the newspapers filed suit in January.

The lawsuit was almost identical to a previous suit in which Shepherd ruled in May 2010 against the cabinet. In that case, he ordered the cabinet to release records related to the death of Kayden Daniels, right, a 20-month-old Wayne County boy who died after ingesting poison. Both the child and his mother, then 14, were under supervision of the cabinet.

A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

Read more in the Herald-Leader and in the The Courier-Journal. Read Judge Shepherd's ruling here. Read about Judge Shepherd's decision in 2010 here.

Animal-care panel cancels after Humane Society asserts violation of open-meetings law

A new panel given the task of drafting standards for care of farm animals canceled its scheduled meeting yesterday, apparently because the Humane Society of the United States alleged Wednesday that the Kentucky Livestock Care Standards Commission was violating the Kentucky Open Meetings Act.

The cancellation was announced by the state Department of Agriculture, which later "said the meeting was canceled at the request of Agriculture Commissioner Richie Farmer," Janet Patton reports for the Lexington Herald-Leader. The statement said, "Although he believes that the commission has followed the Open Meetings Act, he wants to make certain that everyone concerned with the issues the commission is working on has ample opportunity to make their opinions heard. Therefore, he believes that the public interest is best served by postponing today's meeting for several days to give all parties concerned enough time to plan for the session."

"The Humane Society alleged that the board has been acting in secret to prevent public involvement and "asked that the commission take no further action on recommendations made by species-specific groups or other advisory panels until the panels hold open meetings to consider all matters previously discussed in private, Patton writes. "Agriculture Department spokesman Bill Clary said Wednesday that the commission thinks it has complied with the state's Open Meetings Act." (Read more)

Parks board defends meeting behind closed doors

The Winchester Sun has asked Attorney General Jack Conway to review an executive session the Winchester-Clark County Parks and Recreation Board held before deciding to allow alcohol sales in Lykins Park for a concert.

In a letter responding to the Sun's challenge, the parks board said it had received several specific legal threats about allowing alcohol sales in Lykins Park. Under the Kentucky Open Meetings Act, public bodies, including the parks board, are required to conduct all of their business in an open session except when certain issues arise. Threatened or pending litigation is one of those exceptions in the law, and that justified a closed discussion of the matter during a meeting, according to a letter sent to the Kentucky Attorney General’s office by Clark County Attorney Brian Thomas.

The parks board voted 4-2 to allow the Winchester Fraternal Order of Police to sell beer during the John Michael Montgomery Country-Fest, despite an existing policy that prohibits alcohol in public parks in Clark County. The vote in public session on Sept. 12 followed the discussion in executive session.

In its Sept. 21 appeal to the attorney general, The Sun argued that the possibility of litigation was “remote” and therefore the exemption did not apply. Thomas responded for the park board that several people had threatened to sue the board if the waiver were granted.

The attorney general's office has not issued its opinion in the matter. That opinion has the force of law unless it is appealed to circuit court.

Read the Sun's story here.

Agency is pressured to re-post database of doctors' malpractice and disciplinary cases

U.S. Sen. Charles Grassley has joined journalists, academic researchers and consumer groups in calling on the Health Resources and Services Administration to put back online the National Practitioner Data Bank, a database of malpractice and disciplinary cases against doctors.

"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"

For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.

The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.

Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."

Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."

The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)

Attorney general rules Louisville's University Hospital is a public institution

Louisville's University Hospital is a public institution, not a private one, which means the state gets a say about the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System, Attorney General Jack Conway said in an open-records decision Wednesday.

Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.

"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)

The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.

AG declares Pike utility's records open

The records of a controversial utility in Eastern Kentucky are covered by the state Open Records Act "because two public agencies supply at least 25 percent of the funds it expends in the state," The Associated Press reports. "Deputy Attorney General Patrick Hughes wrote that Utility Management Group, based in Pike County, must turn over records requested by the Pike [County] Fiscal Court."

Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.

AG again says Health and Family Services Cabinet violated Open Records Act

The attorney general's office has again cited the Cabinet for Health and Family and Services for failing to following the dictates of the Kentucky Open Records Act. This is the second time this year the attorney general's office has ruled that the cabinet violated the law in response to a request from Elizabeth Coleman, a cabinet employee.

In the Sept. 6 opinion, which has the force of law unless overruled by a state circuit court judge, Attorney General Jack Conway held the cabinet "committed both procedural and substantive violations" by failing to provide an employee with timely access to the records she requested.

Coleman filed a grievance with the cabinet June 10. On July 15, she filed a request under the provisions of the Open Records Act for records related to the grievance. On July 19, the cabinet replied it could not meet the three-day deadline required under the law but expected to fulfill her request by July 27. According to the attorney general's opinion, when Coleman heard no more from the cabinet by Aug. 3, she appealed to the attorney general, an option available to anyone who is denied records.

The cabinet told the attorney general's office it had replied on July 21. Coleman denies receiving a response before she filed the appeal on Aug. 3. In either case, the opinion said the cabinet failed to provide Coleman all the records she was entitled to review. The document she received was a single record indicating the disposition of her complaint, lacking any of the notes or interviews of those involved in reviewing her grievance.

In an opinion issued in April in an almost identical appeal, the attorney general's office ruled "The information to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from the grievance she filed. She is entitled to inspect and copy “any record,” including investigator’s notes, that relate to the investigation. The cabinet’s refusal to allow her access to these records constituted a violation of the Open Records Act."

The cabinet can appeal the ruling to Franklin Circuit Court within 30 days to keep it from becoming final.

Foes of law letting optometrists use lasers may sue, alleging violation of Open Meetings Act

Although ophthalmologists and the Kentucky Medical Association strongly objected, a legislative committee appoved regulations Tuesday that will allow optometrists to perform some eye surgeries using lasers.

In answer, opponents say "they might file legal action against theKentucky Board of Optometric Examiners, which drafted the regulations, for failing to comply with the state's Open Meetings Act," reports Beth Musgrave of the Lexington Herald-Leader.

The regulations, passed under Senate Bill 110 of this year's General Assembly, now go to another legislative panel. If they pass, optometrists may be allowed to perform the surgeries by year's end. The bill has been cause for controversy, in large part because it passed through the legislature in a swift 12 days. Oklahoma is the only other state that gives similar operating privileges to optometrists.

Ophtalmologists said Tuesday the optometric board "used a task force appointed by the state optometric association, a trade group, to develop the regulations, and those meetings were held in secret with no public input," Musgrave reports. Legislators and optometrists disagreed, saying public comment was allowed at an open meeting in July, and the regulations were altered after task force members took the comments into consideration. (Read more)

Hopkinsville paper publishes public officials' pay, makes readers aware of records

Many Kentuckians are not aware they can file open-records requests to obtain information they are entitled to see, such as salaries of public employees, reports Dave Boucher of the Kentucky New Era in Hopkinsville.

In a recent weekend issue of the paper (Aug. 27-28), Boucher reported that he filed 20 records requests to acquire information on city and county employee salaries. Al Cross, director of the Institute for Rural Journalism and Community Issues, told Boucher that public officials in rural places "can feel like a request to know their salary is an invasion of privacy," a feeling that stems from rural community culture in which a public office can be regarded as a private possession.

People simply don't understand what types of information they are entitled to see, Cross told Boucher. According to the Kentucky Open Records Act, any agency that receives at least 25 percent of its funding from public sources is subject to a request, Boucher writes. There are some exemptions, including "unwarranted invasion of personal privacy" and classified information, but salaries are not on that list. (Read more)

AG rules Carter County Fiscal Court violated open meetings law by restricting recording

A Carter County Fiscal Court's resolution to restrict cameras and video recording of fiscal court meetings to the last pew of the fiscal court room" was overturned Thursday by Attorney General Jack Conway, Katie Brandenburg of The Independent in Ashland reports. Conway called the resolution "unenforceable and inimical to the public good."

The resolution was passed Aug. 9 after the court's request for "Mignon Colley, Carter County Republican chairwoman, to move her video camera," Brandenburg reports. After an unresolved complaint Colley made to Carter County Judge-Executive Charles Wallace, Colley filed an appeal with the attorney general's office.

Conway ruled, "The Carter County Fiscal Court cannot, by ordinance, executive order, or resolution, abridge the statutorily invested right to videotape public meetings." This decision is not "just an opinion" as Wallace told Brandenburg. The attorney general "issues legally binding decisions in disputes under the open records and meeting laws," the attorney general's website reports. The court must file an appeal in circuit court to contest this decision. (Read more)

C-J, ACLU ask Conway to decide if Louisville's University Hospital is a public agency

Attorney General Jack Conway has been asked to decide "whether University Hospital is a public institution — an issue in the controversial plan to merge the University of Louisville’s main teaching hospital with two other health-care systems," Patrick Howington of The Courier-Journal reports.

ACLU of Kentucky and The Courier-Journal have appealed denials of open-records requests they made to University Medical Center Inc., which does business as University Hospital. "(University Medical Center) turned down both requests on grounds that it is a nonprofit corporation rather than a public agency and therefore isn’t subject to the act," Howington writes. An attorney general’s opinion on open records or open meetings has the force of law unless overturned in court.

News outlets are less inclined to take legal action for open government, but citizens are becoming more active, national survey finds

"While a lack of resources has made news organizations increasingly less inclined to file freedom-of-information lawsuits, citizens have a growing interest in government transparency and are becoming more active in asserting their right to government information," the Media Law Resource Center and the National Freedom of Information Coalition report after an informal, online survey conducted Aug. 9-15. It confirmed continuation of a trend first noticed in 2009.

"If ordinary citizens are becoming more aware of their access rights, and more assertive regarding them, it is indeed a reason to be gratified," said Ken Bunting, executive director of NFOIC. "However, if news organizations are trending toward being less gung-ho in an area once regarded as a matter of responsibility and stewardship, there is the frightening potential that journalism could suffer, as could the health of our democracy." For the NFOIC release and links to the study documents, click here.

After the 2009 survey, the John S. and James L. Knight Foundation created the Knight FOI Fund to pay initial expenses and fees for open-government lawsuits that the fund considers worthwhile.

U of L physicians' group drops open-records appeal, but C-J may still not get records

An organization representing University of Louisville doctors who were trying to keep their financial records private dropped its lawsuit appealing an adverse open-records decision Tuesday. In April, Attorney General Jack Conway ruled that University of Louisville Physicians Inc. is a public agency and, as such, is subject to the Kentucky Open Records Act. Conway's opinion was requested by The Courier-Journal.

Last November, state Auditor Crit Luallen released a scathing audit of Passport, which provides managed care for 165,000 Medicaid patients in Jefferson and 15 surrounding counties. The audit accused the organization of "wasteful spending, conflicts of interest and the questionable transfer of $30 million in Medicaid funds to organizations represented on Passport's board, including University Physician Associates," The Courier-Journal's Tom Loftus reports. Because of the audit, the newspaper asked for financial records from University Physicians Associates and University of Louisville Physicians Inc., which is the successor to University Physicians Associates. They refused to hand over the records, and Conway's decision followed.

Though the attorney general determined the organization should be subject to the open-records law, and the doctors' lawsuit has been dismissed, giving Conway's opinion the force of law, The Courier-Journal may not receive the records it has asked for. In its notice of dismissal, University of  Louisville Physicians stated it could change "its structure and function in the future which it believes may alter its status as a public agency."

"We are still forming our final structure and function," Diane Patridge, ULP's vice president for marketing and communications, told Loftus. "Once we're up and fully established we may appeal this current determination." Curiously, "Partridge also said that ULP has no records to release to the newspaper as a result of the dismissal of the case," because it has no employees – even though it was incorporated in March 2010. "She said University Physicians Associates . . . has handled all financial matters and paperwork for ULP to date," Loftus reports.

“This case is another piece of a puzzle,” Courier-Journal attorney Jon Fleischaker said. “It’s another step to try to make sure there’s more transparency at the University of Louisville School of Medicine and University Medical Center.” (Read more)

"Sounds like a shell game with shell corporations," said Al Cross, director of the Institute for Rural Journalism and Community Issues and associate extension professor of journalism at the University of Kentucky.

Series on questionable disability payments in Lexington led to closure of records involved

Sometimes journalism based on public records prompts government officials to hide the records to prevent further journalism about them.

In 2005, the Lexington Herald-Leader revealed "a high rate of disability pensions among Lexington police officers and firefighters. The stories named pensioners with allegedly severe physical ailments who remained competitive athletes or who returned to the public payroll for new jobs similar to their old ones," John Cheves writes for the newspaper.

"Change came almost immediately. But not to the system doling out millions of dollars in disability pensions every year. Rather, the public no longer has access to many city records the newspaper used to report its stories. Police and fire unions successfully lobbied the General Assembly in 2006 to exempt those documents from the Kentucky Open Records Act." (Read more)

Kentucky looks like only state that denies access to recordings made by police-cruiser cameras

Kentucky appears to be the only state that denies public access to recordings made by cameras in police cruisers. Scott Wartman of The Kentucky Enquirer discovered that this week as he followed up on the guilty plea by Covington City Commissioner Steve Frank for driving under the influence.

"Open-records laws across the country compiled by the Reporters Committee for Freedom of the Press show that only in Kentucky is the public not allowed to view video of DUI traffic stops," Wartman writes. "First Amendment experts say they don't know of any other state with an exemption for DUI videos," and some think the law "raises constitutional issues and violates the public's right to know." Making cruiser recordings available "serves as an important check on police abuse," David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, told Wartman.

The law was passed in 1984 with major changes to Kentucky's DUI law. The sponsor of the bill, then Sen. Henry Lackey, told Wartman that he didn't know why. "I don't remember anyone bringing that issue up," said Lackey, now deputy state aviation commissioner. Jon Fleischaker, attorney for the Kentucky Press Association, told Wartman, "Although I don't know for certain, my guess is it was done out of some misguided sense of privacy and some concern for how the thing could be used." He said the law could be challenged on constitutional grounds if a recording is used in a case. "Let's say I'm a defendant who is wrongfully accused and I want to show the public the tape," he said. "Why shouldn't I be able to do that?"

Judge closes evidentiary hearing in Todd murder case; newspaper seeking child-welfare records

Todd Circuit Judge Tyler Gill has sealed the case record and barred journalists from a continuing hearing in the murder case of a 9-year-old girl, "fearing the disclosure of evidence that jurors won’t be allowed to hear at trial," Nick Tabor reports from Elkton for the Kentucky New Era in Hopkinsville.

Tabor reports that state police say Amy Dye's 17-year-old cousin and adoptive brother, Garrett Dye, who is being tried as an adult, confessed to killing her, but his attorney says the confession was coerced and has asked the judge to suppress it. The hearing lasted all day Friday and is to continue Monday. Gill told the five reporters who wanted to cover the hearing, “I can’t do anything to intentionally sabotage the defendant’s right to a fair trial.”

Gill also sealed the court record until after the trial, which is scheduled for November. The defense "requested a mental evaluation to determine whether Dye was eligible to plead insanity and competent to stand trial," Tabor reported. "The evaluation results are confidential, and so far attorneys have not scheduled a hearing for Gill to rule on Dye’s competency." (Read more)

The case has raised other open-government issues. The weekly Todd County Standard asked the state Cabinet for Health and Family Services for its file on the case and won an appeal at the attorney general's office when the cabinet said it had no such records and refused the request of the office for a confidential review of records.

The cabinet appealed Franklin Circuit Court's award of costs and attorneys' fees but not the substance of the ruling, which cited an earlier opinion of the court that the cabinet must release records of a case where child abuse or neglect resulted in a fatality or near fatality. "The cabinet had substantiated allegations of abuse or neglect involving Amy and had imposed certain conditions upon the family," the Standard said in its lawsuit to force the cabinet to release the records.

The Standard asked Todd County Dispatch for access to logs and recordings of calls it received on the night the killing was reported, but the agency denied the request, saying disclosure could compromise the investigation. The attorney general's office upheld the denial, saying in an opinion written by Assistant Attorney General Ryan Halloran that the agency had demonstrated that "disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action."

Louisville school-bus fight tape is open record

Attorney General Jack Conway has ruled that a videotape of an assault on a Jefferson County Public Schools bus driver by a parent is a public record and should be released to Louisville television station WLKY.

An opinion issued July 11, written by Assistant Attorney General Amye Bensenhaver, held that the school system violated the state's Open Records Act by refusing to make the tape available. The district declined the station's request, declaring the tape was protected by the Family Educational Rights and Privacy Act. The videotape, the school district argued, is an educational record and is therefore confidential under the federal law.

But the opinion held that the videotape focused on the action of the adults involved rather than the students. The school system should blur the identities of any students visible in the tape and release it to the television station, said the opinion, which has the force of law unless overturned by a court. The school system has 30 days to appeal. Lauren Roberts, a spokeswoman for the school system, said no decision has been reached on an appeal. UPDATE, Aug. 9: The system released the tape, in which the identities of the students were obscured, and the station did a story and posted the opinion.

The opinion said, "Because the conduct at issue in the disputed videotape does not focus on students, or student activities, we do not believe the videotape can be withheld in its entirety as an 'education record.' Instead, we find that it is a public record in which there is a strongly substantiated public interest predicated on the public’s ‘right to know’ . . . whether public servants are indeed serving the public . . . .” The opinion held that the privacy interest of the students "does not override the public’s right to know that its agencies and their employees are 'properly execut[ing] their statutory functions,' in this case, insuring the safety and protection of the students who have been entrusted with their care."

But the attorney general's office also stipulated that the opinion applies only to this particular situation and is not a precedent that applies to all school videotapes.

According to the website of WLKY-TV, on March 1, Chesica White boarded a bus ridden by her 7-year-old son intent on finding out who was bullying him. White and her 12-year-old daughter argued with bus driver Johnetta Anderson. The argument escalated and White dragged the driver off of the bus. Anderson suffered a torn ligament. White was charged with 20 felonies and two misdemeanors. She entered an Alford plea, meaning she didn't admit guilt but acknowledged a jury likely would find her guilty of two assault charges.

The station filed an open-records request seeking reports of bullying on the bus on which the March 1 altercation occurred. The documents the station received outlined 150 such reports since the start of the school year. Of that number, 51 were filed in the two weeks leading up to the March 1 incident. For the station's story, click here.

AG again finds KSP violated Open Records Act

Attorney General Jack Conway, the state's chief law-enforcement officer, has again found the Kentucky State Police, the state's main law-enforcement agency, in violation of the state's open-records law – this time in a case involving the 1977 Beverly Hills Supper Club fire that killed 165 people, one of the deadliest fires in American history.

The case began when David Brock, who is seeking evidence in the supper club fire, asked the state police for all photos and slides related to the fire. The state police gave him some black and white photos but refused to pursue access to color photos that had been taken home, with permission, by former trooper Ronnie Freels.

Conway's opinion, written by Assistant Attorney General Amye Bensenhaver, rejected the state police's contention that Freel's pictures were not in their control. Since they were removed with permission, they remained official state records and the state police must recover them and furnish copies to Brock, the opinion said, adding, "While KSP is not obligated to 'verify Mr. Brock’s assertion' that Mr. Freels maintains additional responsive photographs and slides relating to the Beverly Hills Supper Club fire, it must secure those records from Mr. Freels so that Mr. Brock is afforded the opportunity to do so himself."

The opinion called the police's action a "serious open records management issue that involved subverting the intent of the open records law, as well as the laws governing records management and retention." The opinion noted that the attorney general's office had referred the matter to the Kentucky Department for Libraries and Archives "for further inquiry." For a copy of the opinion, click here.

The attorney general's office earlier found the state police had repeatedly violated the records law in a homicide case, and a survey last year by the Kentucky Open Goverment Blog showed many news organizations in the state labeled the Kentucky State Police as "stingy" with public information.

Newspapers push fight against state cabinet

The state's two largest newspapers wasted no time in pushing their case for a judicial order forcing the Cabinet for Health and Family Services to provide records about the deaths or abuse of children under the cabinet's supervision.

The Courier-Journal and the Herald-Leader filed a motion in Franklin Circuit Court asking Judge Phillip Shepherd to order the cabinet to release the records after U.S. District Judge Danny Reeves on June 1 denied the cabinet's motion to move the issue to federal court.

The motion filed by the newspapers asks Judge Shepherd to order the records to be made public, records similar to those the judge declared were public records in May 2010. They also ask that the court nullify emergency orders the cabinet issued to try to circumvent the judge's ruling. Rather than appealing Judge Shepherd's decision ordering the release of some records, the cabinet wrote orders to limit what records it will release concerning the death or abuse of a child under the cabinet's protection.

In December Courier-Journal reporter Deborah Yetter filed an open records request for records related to the deaths of two children under the cabinet's supervision. The cabinet told Yetter it needed 30 days to determine whether the records she sought existed even though the state's Open Records Act gives an agency three days to make that determination. In January, Herald-Leader reporter Bill Estep made a request for records relating to the death of any child under the cabinet's supervision that had died during Fiscal Year 2010, and the cabinet denied Estep's request as being burdensome.

At that point the newspapers filed suit again. The cabinet responded by trying to move the case to federal court, a move that failed.

Federal judge rules for newspapers, returns fight over child death records to state court

A federal judge has ruled against the Cabinet for Health and Family Services in its continuing battle with two Kentucky newspapers over the cabinet's records of child abuse deaths and injuries.

U.S. District Judge Danny Reeves issued his order June 1 remanding the lawsuit to state court, where The Louisville Courier-Journal and The Lexington Herald-Leader had filed it. The cabinet had filed a motion to move the case moved to federal court.

At stake is access to records Franklin Circuit Court Judge Phillip Shepherd has already declared are public records.

In May 2010, Judge Shepherd ruled that the state Open Records Act did not allow the cabinet to shield from the public its records of the death of a child who was under the supervision of the cabinet. The case involved the death of a Somerset toddler who drank drain cleaner. He and his mother, then 14, were both under the supervision of the cabinet.

After Shepherd's ruling, the newspapers sought cabinet records involving other deaths. When the cabinet denied their requests, the newspapers filed suit in Franklin Circuit Court. The cabinet issued emergency regulations that would limit what records the state would have to make public and then filed a motion to move the case to federal court.

Judge Reeves, however, denied the cabinet's motion and returned the case to Judge Shepherd. "The Franklin Circuit Court aptly defined the contours of the Open Records Act as it relates to child protection cases," the order said, then quoted from Judge Shepherd's 2010 decision: “Under the Kentucky Open Records Act, the public records related to the death of a child under the protection of the state foster care system are open to public inspection."

The newspapers will file a motion asking Judge Shepherd to order the cabinet to release the records. (Read more)

Agencies told their forms are improper

The office of Attorney General Jack Conway issued two opinions last week criticizing public bodies for denying records inappropriately.

The city of Carrollton violated the Open Records Law when it required a citizen seeking public records to fill out a city form for the request.

Salome Frances Spenneberg Kist in February requested records concerning specific properties in the city. The opinion, issued May 23, said the city cannot require requesters to use a city form. The opinion also criticized the city for failing to respond to Ms. Kist within three days, as the law requires.

The decision quoted a 1994 Attorney General’s opinion: “While the public agency may require a written application, as opposed to an oral request, there is nothing in the (open records) statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.”

In a separate opinion, the office held that the Housing Authority of Morgantown, Butler County, violated the law by asking Robert Cron why he was requesting records and by requiring him to fill out a form.

The opinion quotes a 2006 opinion of the attorney general which held “KRS 61.872(2) does not authorize public agencies to inquire into a requester’s motives in seeking access to public records, or to consider those motives in determining whether the records should be released.”

The office also ruled against a state prisoner who requested legal statutes from the Kentucky State Law Library. The attorney general’s office has previously held that the court system, including the law library, is not bound by the provisions of the Open Records Act.

Inmates lose open-records requests

The Attorney General’s office has upheld the denial of records in two separate cases involving inmates in state prison, ruling the requested documents were exempt under the state’s Open Records Act.

The office of Clifford R. Duvall, commonwealth attorney for Lewis and Greenup counties in northeastern Kentucky, denied Wayne C. Murphy’s request to view the transcripts of a grand jury proceeding. That record is exempt from release under the state’s Open Records Act and under court rules established by the Kentucky Supreme Court. The attorney general ruled that Duvall correctly denied the request.

Murphy, according to the Ashland Independent, was convicted in November 2006 of the rape and brutal bludgeoning of a video store manager in Russell in 2004. The records he sought involved his girlfriend, Tracy L. Chaffins, indicted as the lookout in the incident. Before her trial, she took her own life, according to police.

In a related opinion, the attorney general held that the Greenup County jailer had violated the Open Records Act by failing to respond to Murphy’s request for all records related to the incarceration of William D. Mollett. The opinion also noted that because Murphy is an inmate at Eastern Kentucky Correctional Complex, the jailer could deny his request if Murphy did not have enough money in his account to cover the copy charges.

In a separate case involving an inmate, the attorney general’s office upheld the decision of the Kentucky State Penitentiary denying an open records request of inmate Anthony Sadler because of his inability to pay for copies of those records.

“The Open Records Act contains no provision for waiver of the prepayment requirements … and (the prison) did not violate the Act in denying Mr. Sadler’s request on the basis that he has insufficient funds in his inmate account to defray the cost of copies. The facility’s actions may work a hardship on Mr. Sadler but are consistent with the Open Records Act and the rule announced in Friend v. Rees,” decided by the state Court of Appeals in 1985.

The office also upheld the denial of a request for records of the Calloway Circuit Court Clerk, based upon a 1978 decision of the state Supreme Court that records held by the court system are not subject to legislative action. In 1998, the attorney general’s office interpreted that to mean court records are not subject to the Open Records Act.

State high court makes clear that contempt proceedings against jurors must be public

In a ruling that could clear up what it called "continuing confusion" among Kentucky judges, the state Supreme Court has ruled unanimously that criminal contempt-of-court hearings for jurors must be open to the public.

The court ruled that Susan Schultz Gibson, a circuit judge in Jefferson County, "should have allowed the public and media access to a contempt-of-court hearing for a juror" whom she suspected of violating her order to avoid publicity about the case last year, Jason Riley wrote for The Courier-Journal. He and the newspaper were the plaintiffs in the case.

"The ruling overturns a state Court of Appeals ruling that found the issue was moot, since the case was over and no one was asking for the hearing to be held again," Riley wrote. "The high court, however, said the issue must be settled so it does not reoccur." The newspaper's attorney, Jon Fleischaker, told Riley, “It's an important decision for the precise reason we were concerned it could happen again.” (Read more)

City must give plaintiff contracts, personnel files

A city-owned arena can't refuse to release information about its contracts and personnel just because that might put it and its contractor at a disadvantage with competing, private facilities, the attorney general's office ruled in a recent open-records opinion.

The records are being sought by Tad Thomas, attorney for Walter Richard Brotherton, who has filed a federal lawsuit against the city of Corbin, Victory Sports and the man who drove a motorcycle that struck Brotherton at a motocross event at The Arena Jan. 15, Michele Baker of the Corbin Times-Tribune reports.

Attorney General Jack Conway said the city failed to prove that the records are “generally regarded as confidential or proprietary” or that “disclosure would prevent an unfair commercial advantage to competitors” of Victory Sports. "The office also stated the City of Corbin violated the Open Records Act in denying access to public personnel files in their entirety," Baker writes. The city is considering an appeal to Whitley Circuit Court.

AG says Adair County hospital board violated open-meetings law , as newspaper alleged

Adair County Hospital's board of directors was wrong to hold a closed-session discussion about the future of an interim CEO because the discussion was about his retention, not posible discipline or dismissal, the Kentucky attorney general's office found. It also concluded the hospital board did not have sufficient cause to discuss a report by Spectrum Health Partners in private.

Adair County Community Voice Publisher Sharon Barton submitted a written complaint to the board chairman March 30 alleging the violations. To remedy the matter, she asked for a copy of the PowerPoint presentation that had been viewed during the meeting as well as any minutes, notes, records and any other documents that had been reviewed.

The board replied that it was "clearly entitled to discuss this issue in executive session" because it was a personnel issue and so exempt from public discussion.

Assistant Attorney General Amye Bensenhaver disagreed, saying the personnel exemption applies only to discussions that might lead to the appointment, discipline or dismissal of an employee, member or student. "This exception shall not be interpreted to permit discussion of general personnel matters in secret," she wrote. "The board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee."

Bensenhaver also said the board should not have discussed the Spectrum report in closed session. The board was obligated to give notice "in regular open meeting ... of the general nature of the business to be discussed in closed session," she wrote. In correspondence, the board said that the report "contained information on specific individuals that might lead to discipline or dismissal" or might lead to litigation. "Even with this additional information, we believe the board's ... compliance fell short of the statutory requirements," Bensenhaver wrote on behalf of Attorney General Jack Conway.

AG says U of L physician groups tied to Passport must release salaries, other financial data

Two groups representing the University of Louisville's faculty physicians have been deemed public agencies and are subject to the state open-records law, Attorney General Jack Conway has ruled. He said the groups violated the Open Records Act when they denied a request by The Courier-Journal's Tom Loftus for five years' worth of records showing employee salaries, sources of income and expenses. U of L doctors have a majority on the board of Passport Health Plan, which manages the Medicaid program for Jefferson and 15 surrounding counties.

The matter concerns the University Physicians Association and the University of Louisville Physicians. In December, Loftus requested the salary and expense documents after state Sen. Tim Shaughnessy of Louisville, right, asked the state Cabinet for Health and Family Services to "examine the flow of Medicaid funds from the state through Passport to UPA," Loftus writes. State Auditor Crit Luallen did not look into the issue in her November report, which pointedly criticized Passport for excessive spending and conflicts of interest.

Though the physician groups contended they were non-profit corporations, Conway said UPA is a public agency "because it was established and created, and is controlled, by the University of Louisville School of Medicine," Conway concludes. "In all material respects, ULP mirrors UPA in the manner of its establishment, creation and control ... We are not prepared to casually dismiss these facts as 'coincidence born of practicality,' and instead find that ULP and the School of Medicine 'act as one and the same.'"

In its articles of incorporation, UPA says its mission is "to further the research mission and teaching of the praction of medicine at the University." Moreover, UPA and ULP were established and continue to be run by U of L medical school administrators, department chairs and professors. "We agree with The Courier-Journal that the suggestion that these physician administrators and/or professors, each the chair or interim chair of their respective medical school departments, came together of their own accord, and as private actors to establish and create UPA defies logic."

Shaughnessy was impressed with the findings. "It causes me to ask: How could they think they are not a public entity? What remains to be seen is whether the university accepts this ruling or continues its arguments that it is not subject to public openness." (Read more)

Budget deal hits federal transparency websites

"Government transparency websites likely will be scaled back or even eliminated as a result of a 75 percent budget cut that congressional leaders and the White House agreed to last week," William Matthews of GovExec.com writes for National Journal.

The $34 million Electronic Government Fund, being cut to $8 million, "supports websites such as http://www.usaspending.gov/ and the IT Dashboard, which provide public access to vast amounts of information on how the government spends money," Matthews writes. "Another transparency site, http://www.data.gov/, also is endangered, transparency advocates said. The site offers access to 380,000 government agency data sets as diverse as climate change statistics and export licensing records." (Read more)

Two Danville city commissioners walk out during closed session, refuse to comment

Two Danville city commissioners walked out of a closed-door meeting last night, leaving the other two and the mayor to discuss a personnel matter that the absentees either didn't want discussed or thought should be discussed in public.

Kevin Caudill and J.H. Atkins, who voted against holding the closed session, left it after 45 minutes and "refused comment on either the purpose of the meeting or their reasons for leaving," David Brock reports for The Advocate-Messenger. "When the remaining commission members returned from executive session about 20 minutes later, no action was taken."

The Advocate-Messenger quoted from the personnel exception to the state Open Records Act: “Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee’s, member’s or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.” Then the paper added in conclusion: "The lengthy closed-door session was not the first in which one of the stated subjects was possible firing and no action was subsequently taken." To read the full story, click here.

National open-government blog is started

Charles Davis, associate professor of journalism at the University of Missouri, has started a blog about freedom of information and open government, and is updating it several times a day. Davis is a former executive director of the National Freedom of Information Coalition. The blog is The Art of Access.

Passport Health Plan drops secrecy; governor calls on corrections non-profit to do likewise

Passport Health Plan, the managed-care organization for Medicaid in the Louisville area, announced today that it would no longer fight to keep its records secret, deciding not to appeal a ruling by Attorney General Jack Conway that it had to give records to The Courier-Journal because most of its money comes from the state.

"The announcement came the same day Gov. Steve Beshear said he wants Dismas Charities Inc., a halfway-house company that stymied a state audit by refusing to fully release its financial information, to open its records as well," reports Deborah Yetter of the Louisville newspaper, which "has published stories detailing questionable spending by both Passport and Dismas, and legislators and state officials have demanded greater accountability from both." Louisville-based Dismas says it gets 22 percent of its funds from the state, 3 points short of the threshold for being subject to the open-records law.

Passport's interim CEO, Mark Carter, said in an article on the paper's op-ed page that the decision "was not based upon legal advice but was made as part of the continuing evolution, perhaps even transformation, of the plan." He said state Auditor Crit Luallen's scathing report on the plan "has served as a very beneficial wake-up call to our organization."

Luallen "was rebuffed in her attempt to audit Dismas," and yesterday "said outside companies that do state business must be held accountable for their use of tax dollars," Yetter writes. Today the state issued a request for proposals to expand Medicaid managed care to other parts of the state. Luallen told Yetter, “I think if government is going to privatize services … we have to have a higher level of accountability, not a lower level of accountability.” (Read more)