Monday, February 28, 2011

City violated Open Records Act by denying request for inspection and charging for copies

The Office of the Attorney General has ruled the City of Hurstbourne in Jefferson County improperly tried to bill a citizen for records he had specifically asked to inspect. The ruling also held the city violated the state Open Records Act by failing to adopt and post procedures outlining access to its records.

Jose Magana asked the city to inspect records of citizen complaints from Jan. 1, 1995, to the present. Instead, the city began making copies of those records and conditioned his right to inspect them on payment of 10 cents per page. The attorney general said the city subverted the intent of the law when it conditioned Magana’s right to inspect the records on prepayment for copies of these records in the amount of $170.

In answering Magana's appeal, the city argued that he had not specified a request to personally inspect the records. The attorney general found otherwise, citing Magana's October 18, 2010, letter to the city requesting access to city records "for the purpose of inspection.”

The decision, issued Feb. 25, notes that "in a line of decisions issued by this office, the Attorney General has recognized that the 'public has an absolute right to conduct on-site inspection of public records.'" The city prepared copies of the records, according to the decision, under the mistaken idea that the choice to prepare copies or allow personal inspection rested with the city, which is mistaken.

The opinion also notes that the requirement to adopt and post policies governing access to city records is "not a courtesy extended to citizens" but a legal requirement and suggests the city promptly adopt the required procedures.

Saturday, February 26, 2011

Board for nursing-home administrators wants a law to let it issue secret admonitions

A bill that was introduced late and got a fast start but has hit speed bumps and maybe a roadblock, would allow the Kentucky Board of Licensure for Nursing Home Administrators to admonish administrators in secret without the action being "considered a disciplinary action against the licensee."

The chairman of the board committee that recommended the bill said the alternative already exists, though not in law, and "would only be used for situations that were not serious enough to warrant action against an administrator's license," reports Valarie Honeycutt Spears of the Lexington Herald-Leader.

House Bill 414, which would make several other changes, was introduced Feb. 9 by Rep. Tom Burch, D-Louisville. On Feb. 14, he posted the bill for consideration by the Health and Welfare Committee, which he chairs, and got the House to waive the rule that bills be posted for three days before being considered. The next day, the committee approved the bill 14-0 and put it on the consent calendar, which is used to pass non-controversial bills without debate. It was posted for passage Feb. 18 but was removed from the consent calendar that day and has languished on the regular calendar since.

On. Feb. 22, Rep. Tim Moore, R-Elizabethtown, filed an amendment to the bill that could doom it. His is one of several measures that would require abortion clinics to give women face-to-face counseling and offer them an opportunity to see an ultrasound image of their unborn child. Because of that, "Burch said this week he did not think the bill would continue to move," Spears reports. However, the contents of the bill could be revived as an amendment to another one.

Spears, who has done much reporting about problems in nursing homes, notes that the licensure board minutes from February 2010 referred to 29 complaints; one was from 2006, and the rest were from 2007 through 2010. Among the cases was a nursing home administrator who did not contact authorities when aides abused a resident, an administrator criminally charged with stealing prescription drugs and an administrator sentenced to 10 years in prison for theft and exploiting an adult. The bill does not specify what kind of infractions would result in private criticisms." (Read more)

Wednesday, February 23, 2011

UK trustees vote to keep presidential search confidential until the final phase

The names of finalists to be the new president of the University of Kentucky will be released only if all of them agree to the disclosure, and if not, only the university trustees' preferred candidate will be introduced to the campus community before being hired, the trustees agreed yesterday.

Trustee Jim Stuckert, chairman of the presidential search committee, "said the confidentiality provision was critical to applicants," the Lexington Herald-Leader reports, quoting him as saying, "We've got people waiting in the wings predicated on these motions." Britt Brockman, chairman of the Board of Trustees, told Becca Clemons of the Kentucky Kernel Monday that the search committee "has been extremely impressed by the breadth and depth of the field." The committee is scheduled to meet today to screen candidates; interviews are scheduled for March 22-23. (Read more)

At yesterday's meeting Brockman called the decision “a nice compromise . . . between public interest and transparency.” He said it would ensure input from the campus community and UK alumni, Nancy Rodriguez of The Courier-Journal writes, "while also protecting the privacy of candidates who might otherwise be scared away from applying out of concern they might lose their jobs at other institutions." (Read more)

There were misgivings. The Herald-Leader's Cheryl Truman reports, "Staff trustee Sheila Brothers said that she would vote for the confidentiality motion, but wondered whether she was getting reliable information about the importance of a closed search, saying she thought there is 'a vested interest in keeping the process closed.'" (Read more)

Monday, February 21, 2011

Open-records request trumped by federal law

An attempt by The Northerner, the student newspaper of Northern Kentucky University, to monitor student grant applications ran afoul of a federal law relating to student privacy, according to an opinion of the Kentucky attorney general's office issued Feb. 15.

Jesse Call, a reporter for the newspaper, sought to examine grant applications submitted to the Student Government Association. But the university denied the request, citing student privacy requirements under federal law. Even though the grant applications were submitted to the student government, the university argued the association administers the grant program under the "direction and guidance" of the NKU Division of Student Affairs and that the records contain personal information of the students.

After the attorney general's office inspected the grant application, it agreed with the university's position, saying there is a substantial public interest in ensuring that student government fairly awards the Scott Wurster Book/Special Needs Grants, but "We concur with NKU in its stated position that the broadly worded definition of 'education records'" in the Federal Educational Rights and Privacy Act "extends to applications submitted by individual students for the grants."

Open-records opinions focus on request costs

Fees to prepare answers to open-records requests were at the heart of two decisions issued Feb. 14 by the attorney general’s office. In one, the office held the Russell County School District improperly denied a request from the editors of the online Russell Springs News to access email logs for the accounts of two employees and set an excessive fee to have the work done. In the other, the office upheld a $34.66 charge for preparation of a list of contractors sought from the Russellville Independent School District.

Russell Springs News editors Louis and Tonya Stargel sought access to the school district’s email server logs for seven and a half months beginning May 1, 2010. (The News apparently began publication on Sept. 8, according to its archives.) The Stargels specifically asked to inspect emails from Sherri West, a former district employee; Kathy Hammond, principal of Russell Springs Elementary School, and Kenny Pickett, superintendent of the district.

The school district denied the request on Jan. 10, arguing the request was too broad and would impose an unreasonable burden. The district estimated it would require six work days, at an estimated total cost of $1,860, to compile the information. According to the attorney general’s decision, the school district offered to provide the information if the newspaper wanted to pay for the work.

The decision said the district could only charge routine copy fees if the newspaper requests the records, because the school district’s contention that it could charge more based on the commercial intent of the Russell Springs News was not valid.

In the Russellville school request, Marty Owens sought a list of contractors and subcontractors who worked on two school construction projects. The district, according to the attorney general’s decision, had no such list and chose to compile it rather than deny Owens’ request or make records available so that he could compile it himself. The district was justified in levying the $34.66 fee to cover the cost of preparing the lists Owens sought, the decision said.

Saturday, February 19, 2011

Whitley judge-executive apologizes for keeping information about indicted sheriff from paper

The Whitley County judge-executive told The Times-Tribune of Corbin that he reprimanded employees in his office after finding that their response to an open-records request from the newspaper did not comply with the law.

The Times-Tribune sent Judge-Executive Pat White an open-records request on Jan. 26 "after the newspaper received what appeared to be a copy of a portion of a letter from the Kentucky Association of Counties to former Whitley County Sheriff Lawrence Hodge," Managing Editor Becky Killian writes. In the letter, the association asked to “review any correspondence, copies of claim forms or other documentation relating to a claim filed with KACO for legal representation” for Hodge, who lost his re-election bid and was indicted on 21 charges after an investigation (logo above) by the newspaper. The grand jury indictment accused Hodge of embezzling hundreds of thousands of dollars in public funds.

"The letter asked White to contact the newspaper to arrange a time for the newspaper to review the documents," Killian reports. "White did not call and instead responded in writing with a letter that appears to bear his signature. He provided a copy of the Nov. 17 letter that again appeared to be only a partial copy of the document." Later, though, White allowed the newspaper to view and copy the documents.

Caroline Pieroni, a Kentucky Press Association attorney, told the paper that White's office had committed an “egregious violation of the Open Records Act” because public agencies are required to indicate when they have omitted or obscured information from a document and cite the Open Records Act exemption that they believe allows them to do so.

"White, who was informed of the Times-Tribune’s complaint on Wednesday, called later that day and said he had verbally reprimanded his staff for the violation," Killian reports. "He also apologized and said he would personally handle open records requests in the future." (Read more)

Friday, February 18, 2011

$1.5 million in grants fund project to hire one anti-corruption reporter in every state

The Center for Public Integrity, a well-established, well-respected source of not-for-profit accountability journalism, is recruiting reporters for "an ambitious risk analysis of corruption in all 50 state governments," covering everything from pension fund management to disclosure laws to state budget processes.

"The journalists will assess the existence and effectiveness of anti-corruption and government transparency measures at the state level, including political financing, civil service management and state budget processes," the center says. "The goal is to hire 50 reporters (one in each state) on a part-time, freelance basis to help us complete the project with on-the-ground reporting and data entry. We’re looking for experienced reporters who know their state and know how to dig." Apply here.

The project is funded with $1.5 million in grants from the Omidyar Network and the Rita Allen Foundation to the center, Public Radio International and Global Integrity, which analyzes government accountability and corruption trends.

Thursday, February 17, 2011

Bill would create panel to review deaths and near-deaths of children in state care; change promised for accountability, transparency

The House Health and Welfare Committee approved a bill Thursday to "create a panel to review deaths and near-deaths of children who are neglected or abused while under the state’s supervision," the Lexington Herald-Leader reports.

The vote was unanimous, but some committee members "said they would not support the bill on the House floor unless it was amended to provide more transparency," Beth Musgrave writes for the newspaper. The bill's sponsor, committee chairman Tom Burch, D-Louisville, left, "told the committee that he was going to offer a floor amendment that would ensure the records of the panel would be available to the public."

Burch's House Bill 441 "would exempt the panel from disclosing its conversations and documents regarding neglected and abused children," and that would make the state child-care system more secret than it is today, argued Jason Nemes, a lawyer for the Kentucky Press Association. “It removes the transparency that we have today,” he said.

For several months, the cabinet has fought in court to keep the Herald-Leader and The Courier-Journal from reviewing records of children who have died when the state was supposed to be looking after them. After a judge ruled in favor of the newspapers, the cabinet issued an emergency regulation that "limits the release of information about the actions of child protection workers in cases involving children who are killed or severely injured because of abuse and neglect," Musgrave writes.

The papers are in court again, challenging the cabinet's refusal to release certain records. This week, the cabinet asked that the lawsuit be moved to federal court, arguing that federal law prohbits the release of such information. (Read more)

Wednesday, February 16, 2011

Free open-government seminar in Bowling Green

The Barren River Area Development District will sponsor a free open-meetings and open-records seminar Wednesday, March 30, from 1 to 3:30 p.m. CDT in the district office at 177 Graham Avenue in Bowling Green. The seminar will be conducted by Assistant Attorney General Amye Bensenhaver, who writes a majority of the attorney general's decisions on open meetings and open records. She will be joined by Jeremy Rogers of Dinsmore & Shohl, a leading media law firm.

The seminar is designed to educate public officials about the two laws but is open to anyone who notifies the area development district in advance. Contact Ashley Lawrence at 270-781-2381 (fax 842-0768) or

The seminar was prompted by a series of open-government controversies involving the fiscal court of Butler County, which is part of the district. To head off further legal action against them, the judge-executive, magistrates and county attorney agreed to request training from the attorney general's office in open-government laws. Bensenhaver said the office felt that it would be useful to expand the seminar to all public officials in the district. Many local officials are newly elected and unfamiliar with the laws.

Thursday, February 10, 2011

City council can't act on an issue because too many members have a conflict of interest

The Lancaster City Council found itself with a dilemma when three of the six members and the mayor had to recuse themselves from discussing an issue involving a school because they work for the county schools.

Garrard County Superintendent Donald Aldridge appeared before the council to discuss a leaky water pipe that "had cost the school district thousands of dollars," reports Ben Kleppinger for the Danville Advocate-Messenger. City Attorney Leonard Smith pointed out that three members of the council are teachers in the school system and the mayor is the school district’s community education director and they should all recuse themselves from the issue. "My recommendation is to not even ask questions, because you could have the appearance of conflict by asking the wrong question," Smith told the council.

Superintendent Aldridge was asking the council for a budget adjustment to cover the expense of a pipe that had leaked 700,000 gallons of water into the ground before being fixed. Smith told Aldridge and the council that Aldridge did not have any basis to make a change. "There’s nothing we can do about it and the school board’s stuck in the middle," said Smith.

With the water-bill issue behind him, writes Kleppinger, Aldridge asked Smith how he could ever bring an issue to the council if the council is rendered powerless by his presence. "Maybe you could fire two or three teachers and that will fix your problem," Smith joked, before explaining that other issues might not be as controversial and the council could handle them without having to recuse themselves. (Read more)

Two leading open-government advocates among 2011 Kentucky Journalism Hall of Fame inductees

Two leading advocates of open government are among six people in the 2011 class of the Kentucky Journalism Hall of Fame, announced this week: Tom Loftus, longtime chief of the Frankfort bureau of The Courier-Journal, and Robert Carter, retired publisher of the Kentucky New Era in Hopkinsville.

Bob Carter, left, was president of the Kentucky Press Association in 1976 when the legislature passed the Open Records Act, and was on KPA's leadership ladder in 1974 when it passed the Open Meetings Act. For his work on that and other projects, he was named KPA's outstanding member in 1975. "Carter began his career on the advertising side of the newspaper business, and he thrived there, but countless journalists have benefited from his role in getting the Kentucky General Assembly to adopt the open-meetings law and the open-records law," New Era Publisher Taylor Hayes wrote in his nomination letter.

One of the leading users of the act, to the benefit of his newspaper and the public, has been Tom Loftus, right. Chief of the Louisville newspaper's state-capital bureau since 1987, "He’s an ardent watchdog who has made use of those laws than perhaps any other journalist in the state, as signified by the James Madison Award from the [UK journalism] school’s Scripps Howard First Amendment Center in 2008," said the nomination by Al Cross, his former C-J colleague, now at UK's Institute for Rural Journalism and Community Issues, and Bill Straub, his former colleague at The Kentucky Post, now Washington correspondent for the The Gleaner of Henderson and the Evansville Courier and Press.

Others elected to the Hall of Fame, overseen by the UK Journalism Alumni Association, are Bill Bartleman, recently retired reporter for The Paducah Sun; Jackie Hays Bickel, retired anchor for Louisville’s WAVE-TV; Ed Shadburne, former general manager of WLKY-TV and of WHAS-TV-AM-FM in Louisville; and the late Albert Dix, publisher of The State Journal of Frankfort. The six will be inducted at a luncheon April 5 in Lexington.

Wednesday, February 9, 2011

Electronic metadata are open, federal judge rules

"For the first time, a federal court has ruled that metadata -- information related to the history, tracking or management of an electronic document -- must be released if requested under the Freedom of Information Act," reports Christine Beckett of the Reporters Committee for Freedom of the Press.

U.S. District Judge Shira Scheindlin ruled Monday in the case of National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency. The labor group requested records in electronic form from ICE. "After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata," Beckett reports.

Scheindlin said that failed to meet the requirements of FOIA because the data were unusable and undefined. "There was no way to discern the beginning and end of individual records," Beckett explains. The judge said ICE's arguments were "lame."

Metadata are essential to using electronic records because they show "the government is not hiding anything," said Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit. "It goes to the heart of FOIA."

The judge said metadata should be specifically requested, but ruled that because the labor group asked for electronic records in "native format," the original electronic format that contains metadata, that was sufficient to require ICE to provide the metadata.

She "conceded that not all metadata may fall under FOIA's 'readily producible' standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency," Beckett reports. "The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records." The U.S. attorney handling the case declined to say if an appeal will follow. (Read more)

Monday, February 7, 2011

1 of 3 rulings regarding Butler County says public has no right to take part in official meetings

State law does not give members of the public the right to participate in open meetings of public agencies, Attorney General Jack Conway ruled in the most substantive of three open-meetings decisions involving the Butler County Fiscal Court and Robert D. Cron, who was a candidate for county judge-executive in 2010 and has persistently dogged open-government issues in the county northwest of Bowling Green.

Cron accused the fiscal court of violating the state Open Meetings Act by instituting a new procedure requiring visitors to identify themselves and have their issues placed on the meeting agenda before having an opportunity to address the court. The attorney general disagreed, saying the law does not provide a statutory right for the public to participate in public meetings or address members of a public agency.

Cron fared better in the other two cases. In one, he alleged that the fiscal court held a closed meeting to discuss hiring a part-time employee on Jan. 6, 2011, and failed to respond to his complaint within three days. Attorney Richard J. Deye replied that much like a recent case in Knott County, the meeting was improper and the fiscal court promises not to do it again.
In the third ruling, the AG's office could not decide conclusively if the fiscal court violated the law when it changed the time of a meeting from 6 p.m. to 5:30 p.m., "but the weight of the evidence suggests that it did." Cron complained that the court did not properly announce the time change. The court and Cron agree about "the sequence of events which resulted in the other complaint," but disagreed about the legal implications.

AG: Knott Co. Fiscal Court meeting conducted over the phone violated Open Meetings Act

Attorney General Jack Conway has ruled that the Knott County Fiscal Court violated the state Open Meetings Act by conducting a meeting of the court over the telephone and by failing to respond to a written complaint alleging that they violated the open meetings law.

Emma Lois Pigman complained that the meeting held on Dec. 22, 2010, excluded the public. She also complained that the fiscal court had not properly announced the meeting, in violation of the law.

The fiscal court conceded that the telephone meeting was improper, and promised to try to not do it again. County Judge-Executive Randy Thompson said in correspondence to the attorney general's office that he didn't know he had to respond to open-meetings complaints within three days. The attorney general's ruling is unequivocal: Knott County Fiscal Court "must immediately discontinue this practice."

The fiscal court disagreed with Pigman's allegation that it had not properly announced the meeting, but provided no evidence. As the AG;s office pointed out, "We can conceive of few allegations that can more easily be refuted than improper notice.  The fiscal court need only provide this office with a copy of the written notice." The ruling wraps up the Knott County situation: "Judge Thompson’s lack of familiarity with his duties under the Open Meetings Act did not excuse his failure to respond to Ms. Pigman’s complaints.  This is particularly true in light of the fact that he has held the office of county judge since October 2005."