UK has pediatric heart program under review, won't talk about it or release key records

Kentucky Children's Hospital at the University of Kentucky is reviewing its cardio-thoracic surgery program and referring surgical patients to other hospitals, "but the reasons why are unclear," mainly because UK officials won't talk about it or release pertinent records, Brenna Angel reported Dec. 21 for WUKY-FM, the university-owned station.

Angel did identify "the surgeon at the center of the review," Dr. Mark Plunkett, left, who is on a leave of absence but "remains on staff at UK with a $700,000 annual salary," as chief of cardio-thoracic surgery. "UK denied an open-records request for the date of his most recent surgery and his patient mortality rate," citing privacy rules in the federal Health Insurance Portability and Accountability Act. It was unclear how release of such statistics, without any personally identifying information, would compromise privacy. Plunkett and officials of the medical center refused to be interviewed.

"It's been pretty hush-hush," Tabitha Rainey of Lexington, the mother of a Plunkett patient, told Angel, who reported: "Plunkett and his assistant Dr. Deborah Kozik operated on Waylon seven days after he was born. Tabitha was later told that Dr. Plunkett was taking a leave of absence." Rainey told Angel, "Months went past and they lost another patient, who was a dear friend of mine, and it was pretty heavy in the unit at the time. Then soon after I guess they decided to stop doing the surgeries and review the entire program."

Angle was able to get some records from UK and reported they showed that "The number of children Dr. Plunkett operated on this year is down around 43 percent from two years ago." UK Trustee Dr. Charles Sachatello, a surgeon who sits on the Board of Trustees' health-care committee, told Angel, "I was not aware of that, and that was never announced at the Board of Trustees meeting." Sachatello told Angel that UK should merge its pediatric heart program with the one at the University of Louisville because of the high operational costs of such programs. (Read more)

Sun gives police letter alleging schools' laxity about weapons, but honors request for anonymity

A newspaper in a Kentucky county that had one of the first mass school shootings gave police a letter it received from a student alleging lax enforcement of rules about weapons on campus, but refused to identify the student, who asked to remain anyonmous. The Paducah Sun gave the McCracken County Sheriff's Department a copy of the letter about Reidland High School on Monday "after a reporter called the department . . . although the name of the author was not included," the paper reported Tuesday in a non-bylined story.

Reidland High School

The story quoted from the letter: “Someone who sits in class with us, who has brought weapons twice ... has yet to be punished for anything.” It "does not mention the person’s name," the story says. "It adds that the person has plotted attack sites around the school area and asks why school administrators are afraid to enforce school rules. The letter does not contain any specific threats of violence, just the student’s observations."

After being told about the letter, police and school officials decided to close the school and the attached Reidland Middle School. “School will not be in session until the threat has been adequately investigated,” Sheriff Jon Hayden wrote on his department's Facebook page. The paper's story is here; the letter is here.

Reidland (A) and Heath (B) schools (Google map)

On Dec. 1, 1997, a student at a high school on the other side of Paducah fired on a group of students at a prayer meeting, killing three and injuring five. He pleaded guilty but mentally ill and was given life in prison with the possibility of parole in 25 years. "A federal appeals court panel is considering whether Heath High School gunman Michael Carneal should be allowed to take back his guilty plea and get a trial," Angela Hatton of WKMS in Murray reports.

The Wednesday, Dec. 19 Sun has a copy of the letter, a story about an unnamed teacher who says she prompted it, and a column from Editor Jim Paxton explaining the paper's handling of the matter: "Newspapers by statute in Kentucky have a right to protect the identity of their sources, just as law enforcement agencies do. Absent that ability, we would never be able to develop the type of information that is reported in today’s lead story about the school threat issue, information we believe most readers will agree sorely needs to see the light of day." Paxton said the paper asked the student's parents if he could speak to the sheriff's department if his confidentiality was protected. "The parents expressed reservations, noting their son is a juvenile. We advised investigators of the parents’ position, but said we would continue to try to broker a resolution that would allow investigators to speak to the student directly."

Paxton says a press release from the sheriff's department at 10:30 p.m. Monday "was at best disingenuous and at worst defamatory. The release was crafted in such a way as to make it appear that the newspaper had received a letter from an individual who had directly threatened the high school and we were refusing to tell authorities his name citing 'journalistic ethics.' The release didn’t say that specifically, but it was clearly intended to be interpreted that way, and it was." That release appeared to be the basis for a story by WPSD-TV, also owned by Paducah-based Paxton Media Group. The county school superintendent sent a similar message to school-district employees.

"The effect was as officials planned," Paxton writes. "People called to cancel subscriptions. Advertisers called threatening to pull out of our newspaper. Profane comments poured onto our Facebook page." And though the paper's First Amendment lawyer said it had an absolute right to withhold the student's name, "we continued working to broker a resolution, and later that morning, our source, his parents, and an adult employee of the school system who we learned was our source’s source agreed to meet here at the newspaper with Sheriff Hayden. While we were in the process of setting that meeting up, a sheriff’s detective showed up in our offices with grand jury subpoenas demanding that Executive Editor Duke Conover and yours truly appear in less than two hours before a grand jury along with the letter disclosing the identity of our source. (In what can only be described as a show of belligerence, the sheriff’s detective undertook to 'read' the subpoena to Conover in Conover’s office while Conover was engaged in a phone call. First, that’s hard to do, since subpoenas mostly have boxes and checkmarks on them. Second, legally, it has no effect. Subpoenas are simply supposed to be delivered, and sheriff’s deputies are well aware of that.)" Paxton, a lawyer, writes that the subpoenas were illegal and "purely an effort to intimidate a news organization. We doubt Kentucky’s attorney discipline board will smile on this exercise."

In the end, Paxton reports, "Our source and others familiar with this matter did meet in our offices with the sheriff, and as today’s lead story indicates, much was learned. Interestingly, some of what was learned was very unflattering to school administrators and others in the school system. Meanwhile, we as a newspaper remain puzzled by the scorched earth approach taken by local officials involved here." (Read more; subscription may be required)

Sheriff Hayden issued a press release Tuesday night saying that the alleged threat was a misinterpretation of two students' conversation about explosions in a video game, which had been investigated and cleared. "Had investigators been provided contact information sooner, this incident could have been cleared up much quicker," Hayden said.

Illinois' anti-eavesdropping law can't be used against those who record police, high court says

The U.S. Supreme Court has let stand an appellate-court ruling in Illinois that "The state's anti-eavesdropping law violates free-speech rights when used against people who tape law enforcement officers," the Chicago Tribune reports. "Opponents of the law say the right to record police is vital to guard against abuses." (Read more)

Judge rules U of L's hospital is public and subject to Open Records Act; it may appeal

The University of Louisville's hospital is a public entity, a Jefferson Circuit Court judge has ruled in a lawsuit filed to get access to the university's deals with other health providers.

Judge Martin McDonald ruled yesterday in favor of The Courier-Journal, WHAS-TV and the American Civil Liberties Union, noting that the university makes or approves all appointments to the hospital's board of directors. The university had argued that the board, and thus the hospital, was not a public agency under the state Open Records Act.

The hospital said it might appeal the ruling. McDonald gave it 30 days to give him the records being sought, along with arguments about why they should be exempt" under exceptions to the law, reports The C-J's Andrew Wolfson. "He gave the news organizations at the ACLU 20 days to respond to any claimed exemptions." The hospital has said revealing contracts would put it at a competitive disadvantage.

The suit began after the university refused to let the plaintiffs see records related to its proposed merger with Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health Care System. Gov. Steve Beshear vetoed the merger on grounds that a public hospital should not be bound by a religious organization's health-care policies. This month the hospital announced a new deal with KentuckyOne Health, which includes the Catholic system, but said reproductive services would not be affected. (Read more)

Federal judge keeps ban on contacting jurors but will contact them on behalf of Herald-Leader

U.S. District Judge Greg Van Tatenhove is allowing the Lexington Herald-Leader to contact certain jurors in the groundbreaking case of kidnapping and assault of a gay man in Harlan County, but he  declined to strike down a Kentucky federal-court rule against contacting jurors in criminal trials.

"Jason and Anthony Jenkins were charged with attacking the victim, Kevin Pennington, in April 2011 because of his sexual orientation," a hate crime, Bill Estep of the Herald-Leader recounts. "The Jenkins cousins were the first people in the nation tried under a section of the federal hate-crime law that makes it illegal to injure someone because of the victim's real or perceived sexual orientation."

The jury convicted the cousins on kidnapping and conspiracy charges Oct. 24 but acquitted them of the hate-crime charge. "That was a setback for the government in its first attempt to win a conviction at trial under the gay-bias section of the hate-crime law," Estep notes. "The Herald-Leader refrained from contacting jurors for comment on their reasoning in the decision because of a court rule."

The newspaper asked Van Tatenhove to strike down the rule as an unconstitutional infringement of its First Amendment right to gather news. The judge declined, but noting that the rule allows journalists to contact jurors with a judge's permission, said he would ask the jurors if they are willing to be interviewed and provide the names to the paper. (Read more)

Read more here: http://www.kentucky.com/2012/11/21/2416764/judge-allows-newspaper-to-contact.html#emlnl=Breaking_news#storylink=cpy

AG: Cabinet hid too much information from Inez newspaper about case of 2-year-old who died

Attorney General Jack Conway has ruled that the state Cabinet for Health and Family Services violated the Open Records Act by withholding information about the death of a 2-year-old Prestonsburg boy whose aunt and uncle have been charged with killing him.

The Mountain Citizen, a weekly newspaper in Inez, asked for all information the cabinet had on Watson Adkins, whom the state had removed from his mother's home and placed in the custody of his maternal aunt, Gladys Dickerson of Prestonsburg. The boy was found unresponsive there in September 2011.

The cabinet "initially did not provide two previous unsubstantiated reports of abuse against Gladys and Jason Dickerson to the newspaper but later supplied the reports with much of the information redacted," reports Beth Musgrave of the Lexington Herald-Leader. "The opinion said the cabinet could not redact some of that information, including the names of perpetrators involved in the unsubstantiated reports."

Conway said the cabinet also violated the records law "by failing to cite either state or federal law that allowed it to withhold or redact certain information," Musgrave writes, noting that the case is the latest "in a more that three-year legal battle between the media and the Cabinet for Health and Family Services over what can be released after a child is killed from abuse and neglect. . . . What information can be redacted or blacked out of those files is currently on appeal."

The cabinet has 30 days from Monday, the date of the open-records decision, to appeal it to circuit court.

Citizen Editor Gary Ball told Musgrave that he sought the information after hearing that the cabinet had been told the Dickersons were mistreating the boy and his four siblings. “I got heavily redacted information,” he said. “I wanted all records from the time that they were removed from the home to the time of the criminal charges.” He said the mother had taken photos of suspicious injuries to the children.

"Ball said that the cabinet had investigated two reports of alleged abuse against Gladys and Jason Dickerson before September 2011," Musgrave writes. "Ball received the reports from the cabinet but it’s difficult to tell why those reports were not substantiated." He told Musgrave, “I want the records that will show me how they made that determination that those reports were unsubstantiated.” (Read more)

AG says Danville solons broke open-meeting law by deciding secretly to buy a building

UPDATE, Oct. 23: The city has appealed the decision to Boyle Circuit Court, The Advocate-Messenger reports.

The City of Danville violated the state Open Meetings Act by taking action in closed session to buy a building and failing to respond to a complaint about it from the local newspaper, Attorney General Jack Conway has ruled in a decision both sides received yesterday.

"The disputed action in an executive session took place July 23 during a City Commission meeting. There was no public vote regarding purchasing the building during open session that day," reports Stephanie Mojica of The Advocate-Messenger. "It wasn’t until Aug. 13 that commissioners publicly approved the purchase . . . a decision that has stirred some controversy, partially because Commissioner Ryan Montgomery’s father, Mike Montgomery, conducts business with the property’s now-former owner,  Mitchell Barnes of Lexington. On Aug. 13, commissioners said they had reached a 'consensus' during the July 23 executive session that allowed City Manager Ron Scott to move forward with plans to hire a bidder and secure the property through auction. However, a consensus is still a vote, according to the attorney general’s decision."

The commission had told the attorney general's office, "The Commissioners collectively stated to the City Manager that they could potentially approve of a purchase of the . . . building if the sale price was less than the appraised value" and that all of them supported the City Manager hiring "a professional bidder as its agent … so as not to showcase that it was the City bidding." The commission argued that it acted as the Florence City Council did when it agreed in closed session to settle a lawsuit, then approved the settlement at a later, open meeting. Conway's office said that didn't apply "because the appeal before us does not involve a settlement conference in litigation," and noted that "a commitment or promise to make a positive or negative decision" constitutes "taking action" under the open-meetings law. It also faulted the city for not responding to a follow-up complaint the Advocate-Messenger filed Sept. 14. For the decision, click here. For the story, go here.

Mount Olivet violated both open-meetings and open-records laws, attorney general rules

By Taylor Moak

The Mount Olivet City Council violated the Kentucky open meetings and open records acts in its actions surrounding special meetings and a request for documents, the attorney general’s office ruled in August.

The first attorney general’s decision about the council, which was released Aug. 24, said the council violated the Open Meetings Act for not complying with notice requirements before holding a special meeting on July 16.

The council also committed a violation for failing to issue until Aug. 8 a written response to two complaints made July 26, and it committed a violation if public business was discussed in an “admitted meeting of a quorum of members without proper notice,” according to the decision.

The second decision, released Aug. 30, said the council violated the Open Records Act when it did not respond in a timely manner to an open records request.

Tony Beach, a resident of Robertson County, where Mount Olivet is the county seat, filed the appeals with the attorney general’s office.

Beach said he had been attending the city council meetings to hear discussion of plans to annex a new school that is a few miles outside of the city limits. The proposed annexation would also include his home.

“I started going to the meetings because I don’t want to be within the city limits,” Beach said.

He said over the years, the city has not been run in an organized fashion.

Over the summer, he went to attend a meeting of the city council where plans to replace a vacant city council seat would be discussed.

But he said the special meeting wasn’t advertised, and he was told that it wasn’t a special meeting. He said he was allowed to stay at the meeting, but he filed a complaint after that meeting because the people of the city did not have an opportunity to attend the meeting.

When he asked for the minutes of the meeting, the council couldn’t produce them, Beach said.

In his July 26 request to the council, Beach asked for eight items, including the minutes from the July 16 and July 23 special meetings, and all emails, correspondence, minutes or notes from meetings pertaining to current or future annexation plans. Beach also requested the names of any news media that have requested to be notified of the council’s special meetings.

Beach said in an appeal letter that he filed with the Attorney General’s Office that he never received a written response to his request, but when he attended a council meeting on August 6, he was handed two of the eight items he requested without explanation.

W. Kelly Caudill, an attorney from Maysville, represents the city council. In his Aug. 13 response to the attorney general, Caudill said of the July 23 meeting that “some council members met for the purpose of introducing themselves to a prospective new council member who was interested in filling a vacancy on the council. That council and the mayor did not conduct any city business.”

Caudill said he advised the mayor and the council “that any time there is a quorum that they must comply with the Open Meetings Act and treat same as a special meeting providing at least 24 hours notice.”

In his response to Beach’s request, Caudill said the city council “must respectfully deny same as they are in the excess of what the statute requires.”

A worker at Caudill’s law firm said she spoke with Caudill and “he indicated that he has no comment.”

Beach said the attorney general’s decisions puts the city council “on notice that someone is watching” and his primary focus remains not being annexed into Mount Olivet.

“My biggest concern is being annexed into a city that doesn’t know how to be ran correctly,” Beach said.

Judge closes hearing in case involving mother accused of sexualizing 6-year-old at pageants

A judge in Campbell County closed a hearing in a high-profile child custody case Saturday and put a gag order on the mother, who had "claimed that her ex-husband was using [her daughter's] participation in child beauty pageants as a reason for the court to award him full custody," reports Meaghan Murphy of WXIX-TV. Family Court Judge Rick Woeste also ordered that 6-year-old Madisyn "Maddy" Verst and her mother could not participate in any pageants "until further notice," Murphy reports. The proceedings are to resume Aug. 31.

Maddy's "saucy shake and shimmy landed her on the cover of People magazine, with the headline asking, 'Gone Too Far?'," Murphy reports. A court-appointed psychologist said the mother, Lindsay Jackson, was sexualizing her daughter. Jackson denied that, saying the child's padded Dolly Parton outfit on the "Toddlers and Tiaras" TV reality show on TLC was "designed to represent our state. Dolly’s from Tennessee. . . . I shouldn’t be at risk of losing my child simply because she participates in a hobby that some people don’t like." (Read more) For a Fox News report and talking-heads debate aired before the recent hearing, click here.

Hustonville officials refuse to release text of proposed ordinances after first reading

Here's one we've never heard before: A city refusing to provide the text of proposed ordinances on which its city council has held first reading. It is happening in Hustonville, the small Lincoln County town on US 127 between Danville and Liberty, reports Ben Kleppinger of The Interior Journal of the county seat of Stanford:

"Hustonville City Council has passed first readings of five ordinances aimed at curtailing certain behaviors within city limits, but the city has refused to release the text of the ordinances to the public. The ordinances were read aloud by Mayor Marc Spivey at the city's Aug. 7 regularly scheduled meeting. City Attorney Carol Hill refused to give the weekly newspaper copies of the ordinances, claiming they are "preliminary documents," and City Clerk Rita Clem denied a written open-records request, saying "The Open Records Act only governs access to the existing records and not to records that will be created in the future."

Kleppinger reports, "Kentucky Press Association Attorney Jeremy Rogers, who specializes in open meetings and open records law, said there's no question ordinances that pass first reading are open record. Rogers said Hustonville's argument that the ordinances do not exist doesn't make any sense because they have all already received first readings. . . . There's nothing preliminary or private or secret about it. They've read it in an open meeting."

The newspaper is appealing denial of its open-records request to Attorney General Jack Conway. The ordinances deal with littering, illegal parking, jaywalking, wearing of masks and one that would ban "formation of any type of line and/or congregating on the sidewalks, streets or any other public property." (Read more)

Judge tells Owensboro police to give newspaper records of probe into public information officer

Daviess Circuit Judge Joe Castlen ruled Monday that the Owensboro Police Department must give the Messenger-Inquirer newspaper records relating to the department's investigation of its former public information officer.

The judge "said the city must release two documents that say why the police department's Professional Standards Unit began two investigations of [Marian] Cosgrove prior to her resignation in November," James Mayse reports for the M-I. The police department's attorney had argued that the documents were exempt from the Open Records Act because they were "internal" and because Cosgrove resigned before any administrative action was taken against her.

Editor, lawyer say open-government laws being obeyed more, but the battle will never end

By Al Cross
Institute for Rural Journalism and Community Issues

Public officials in Kentucky are doing better at obeying open-government laws, but many still have a ways to go, but Kentuckians are making increasing use of the laws to hold officials accountable.

So said the chief author of the laws, and one of the leading users of them, in an interview being broadcast on statewide television this week to mark the 20th anniversary this month of the laws' major rewriting. They also said the battle for open government will never end.

"We have to re-educate our local officials every four years about open meetings and open records," John Nelson, executive editor of Danville-based Advocate Communications, told Bill Goodman on "One to One," broadcast on KET Sunday afternoon. The show is airing on KET2 Tuesday, July 24 at 7:30 p.m. ET and Wednesday, July 25 at 7:30 a.m. ET and on KET Sunday night, July 29 at 12:30 a.m. ET. It is available online by clicking here.

Host Bill Goodman shares a laugh with Nelson, center, and Fleischaker

Nelson, a leader in using the Open Records Act, said "We use it or consider using it at least weekly" at the company's papers in Danville, Winchester, Nicholasville and Stanford. He said he has seen recently seen an increasing use of open-government laws by the public, and "I would love to see more citizens become more aware of the law."

The General Assembly passed the laws in the mid-1970s and revised them in 1992. Since them, users of the records law have made some progress in reducing an attitude among public officials that records were "their business, not the public's business," said Jon Fleischaker, a Louisville attorney who helped draft the first laws and was the Kentucky Press Association's chief counsel on the rewrites.

Fleischaker said one powerful aspect of the laws is the ability of anyone to appeal the denial of a record, or access to a meeting, to the state attorney general and get within 20 days a ruling that has the force of law unless overturned in court. He said the process for "a quick and easy determination that is inexpensive" is "close to unique" among the states.

He said the attorney general's office has become increasingly helpful with successive attorneys general: "They're very consumer-friendly, citizen-friendly." He said later that most judges have also been a boon: "The courts in Kentucky have been very favorably inclined toward openness."

A key court decision, opening the donor records of university foundations, stemmed in part from a better definition of "public agency" included in the 1992 rewrite, Fleischaker said. The loser in his lawsuit for The Courier-Journal was the University of Louisville, which claimed privacy but had "wrongly assured" donors they would remain anonymous, he said. "In most of those cases there was a deal being made" with the donor. "That's not a private matter."

KPA and others began pressing for improvement of the laws little more than a decade after their passage because newspapers had become concerned about repeated violations of the laws and difficulty in achieving their goal of open and accountable government.

In 2004 KPA, The Associated Press and journalism schools in the state conducted an "open records audit" by sending strangers to local agencies to request specific records. Nelson, KPA president at the time, said there was "largely a positive outcome, but we did find that there were problems."

Nelson said the "glaring weakness" that remains in the laws is a light penalty for non-compliance. Fleischaker said it is "a very small fine that almost never gets implemented," and "That takes litigation and expense," usually against a public agency that can "go to court at the drop of a hat."

Fleischaker said it is also rare for courts to grant attorneys fees in open-government cases, but noted that the state Cabinet for Health and Family Services was ordered to pay in its dispute with major newspapers and the Todd County Standard about child-abuse fatalities and near-fatalities.

He said the case has "become a procedural nightmare" as the state Court of Appeals considers several procedural questions and the cabinet gives The Courier-Journal and the Lexington Herald-Leader documents that are "being redacted much more than they should be," including "names of people charged in criminal court with murder." He added, "This has nothing to do with children and protection of children; it has to do with protection of people in the cabinet."

Appeals court allows Christian County cops to keep identifying information on police reports secret

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints," including people charged with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.) Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers," Brown writes. "The newspaper did not dispute the practice of withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating inaction as opposed to action,” he said. “The way you investigate inaction is to go to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests," Brown reports. "This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims. I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.” (Read more)

Paul objects to FCC proposal to make stations put political advertising information online

Many elements of the Tea Party have been outspoken in favor of government transparency, but for the U.S. senators most identified with the movement, that does not extend to making political television expenses more accessible to the public.

Sens. Rand Paul of Kentucky (right), Pat Toomey of Pennsylvania, Jim DeMint of South Carolina and Mike Lee of Utah "have asked the Federal Communications Commission to reconsider its proposal to have TV stations put their political files online," reports John Eggerton of Multichannel News. They were joined by Roy Blunt of Missouri and John Boozman of Arkansas.

The political files, which show who buys the time, how much and when, must be made available for public inspection at a station or cable-company office during regular business hours. The FCC is expected to approve April 27 on a regulation that would require stations in major markets to put the information in an online database. "Broadcasters argue . . . that to maintain an online, real-time system would cost staff time and money better spent on local news and other public service," Eggerton writes.

OPINION: That money could also be spent on executive salaries, shareholder profits or some other thing besides public service. In their letter, the senators said the proposal would carry "heavy compliance costs," but as someone who has inspected many of these files at stations, and is familiar with how the same information is already maintained electronically, it's hard for me to imagine that the compliance costs would be very high. And putting them online would make them much more accessible to rural journalists. –Al Cross, director, Institute for Rural Journalism and Community Issues

UPDATE, April 9: Because of complaints from stations, "The proposal will give smaller stations two more years to start uploading new additions to their files about political ad spending. At the outset, only the affiliates of ABC, CBS, NBC and Fox in the top 50 TV markets will be required to do so," reports Brian Stelter of The New York Times. "The FCC says the initial uploading will cost less than $1,000 for a typical station, and will save the stations money over time by avoiding printing and storage costs. The uploaded files will be searchable — but only inside one file at a time." (Read more)

Corie Wright, senior policy counsel for Free Press, which supports online posting, told Eggerton, "It's baffling that these senators would want to hide public information in dusty filing cabinets when it could be made available to their constituents via the Internet. The public wants and needs to know who's trying to influence them over the public airwaves -- and the FCC appears to be doing the right thing by bringing this antiquated system into the 21st Century."

Eggerton notes, "Putting the political files online is part of a larger FCC effort to move station public files online and into a database managed by the FCC that is more easily searchable by the public." (Read more)

Harrodsburg police officer stingy with information about fatal traffic accident

Five days after a traffic accident killed a prominent Mercer County farmer who was driving his tractor, a Harrodsburg police officer refused to release most details about it, citing moral grounds and a promise to the family of the 21-year-old driver of the other vehicle that "he would keep their son’s name out of the media until after his investigation was complete," Todd Kleffman of the Advocate-Messenger in Danville reported Wednesday.

Only under orders from Police Chief Billy Whitenack did Officer Jeff Pearce identify the 21-year-old as  William Phillips of Boyle County. Pearce still refused to release the name of a passenger in Phillips' vehicle or say what type of vehicle it was. "On Saturday, Mercer County Deputy Coroner Chuck Bugg said the driver of the second vehicle was airlifted from the scene but was unsure of the person’s identity or extent of the injuries," Kleffman reported. Bugg also identified John "Van" Landrum as the decedent "after Harrodsburg police released a statement saying only that one person died as the result of a two-vehicle collision on US 127."

State police are not involved in the investigation. "Pearce said he would not release any more information on the crash until after his investigation is complete, which he said could take between 10 days and a month," Kleffman reported. "Pearce told a reporter releasing information about the crash went against his morals. He also said he promised Phillips’ family he would keep their son’s name out of the media until after his investigation was complete." (Read more)

Bill that would limit release of child-abuse information appears to be dead with one day left

A bill that could increase secrecy of child-abuse records at the Cabinet for Health and Family Services failed to win passage on the next-to-last day of the legislative session and appears to be dead. "Senate Majority Leader Robert Stivers, a Manchester Republican, said some senators had questions about the bill and it appears unlikely to pass," Deborah Yetter of The Courier-Journal reports.

Senate Bill 126, originally a social-work licensing bill, includes in its Section 10 provisions of House Bill 200 to "create an outside panel of experts to review child deaths and serious injuries, with the goal of better detecting those that result from abuse or neglect. It also would create an outside office to review continuing operations of the state’s child welfare system," Yetter writes. "And it would clarify the definition of child abuse to spell out that any adult living in the home or a sibling older than 16 could be considered a perpetrator of abuse.

The bill would also limit what the cabinet must disclose about child-abuse deaths and serious injuries as a result of child abuse, so the Kentucky Press Association lobbied against it. One portion of the bill would prohibit the cabinet from releasing "the name or any identifying information of a child who has suffered a near fatality, or any information on a sibling or children living in the home of the child who suffered a fatality or near fatality," which is defined as an injury that places a child in serious or critical condition.

KPA counsel Jon Fleischaker, chief author of the state Open Records Act, testified before a Senate committee that if the measure had been law when Amy Dye, a 9-year-old Todd County girl, was killed by her adoptive brother, the public may have never known about her death, or that the brother confessed to killing her.

Westrom told Yetter the cabinet insisted on the language. The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information, and the cabinet has appealed. For Yetter's story, click here.

Legislature OKs bill to let county clerks to charge 50 cents a copy, ban scanners, cameras and such

The Kentucky General Assembly has passed and sent to Gov. Steve Beshear a bill that would allow county clerks to charge 50 cents for a copy of any record they have and to ban devices that could be used to make electronic copies in their offices.

The bill would overturn current law, based on the Open Records Act and an attorney general's decision, that limits the cost of copies to the direct cost of producing them, generally no more than 10 cents per page. It would also allow clerks to ban "scanners, cameras, computers, personal copiers, or other devices that may be used by an individual seeking a copy of a document maintained by the clerk."

Those measures were included in a bill that otherwise dealt with delinquent taxes. It was titled "An act relating to governmental revenue functions and declaring an emergency." The emergency clause means the bill would become law when Beshear signs it. If he vetoes it, his veto would appear likely to be overridden when the legislature returns April 12; the Senate passed the bill 37-0 and the House agreed with a minor change and repassed the bill 83-6.

Those voting against the bill were Reps. C.B. Embry, Mike Harmon, Jim Wayne (the only Democrat), David Floyd, Stan Lee and Addia Wuchner. The Kentucky Press Association lobbied against the bill.

Conway says AD district board violated meetings law in dispute between Lewis County officials

Attorney General Jack Conway has ruled the Buffalo Trace Area Development District board violated the state Open Meetings Act in using anonymous paper ballots to elect a citizen member to the board form Lewis County on Feb. 21, Marla Toncray reports for the Ledger Independent of Maysville.

The issue was raised by Lewis County Judge-Executive Thomas Massie, who is running for the Republican nomination for Congress in the 4th District.

Massie filed a complaint with board Chairman Bill Boggs Feb. 28, alleging that Vanceburg Mayor Todd Ruckel and other board members "conducted private conversations with board members in advance of the Feb. 21 meeting to secure the election of the mayor's nominee and defeat the election of the judge's nominee," Toncray reports. Conway did not reach a conclusion on that point, citing "the conflicting evidentiary record."

Massie wrote, "No notice of appointment of a board member was placed on the agenda for the Feb. 21 meeting, yet some members carried proxy votes for absentee members to the meeting." He also "alleged that the board improperly conducted the election by paper ballot rather than by roll call vote, that the paper ballots were reviewed by only three members of the board, and that the vote count was not announced," the decision says.

Boggs said the vote was conducted by paper ballot after a motion for a roll call vote failed for lack of a second. He said the district's bylaws "do not prescribe the means of conducting the election." But Conway's decision noted that the open-meetings law and past decisions require "a public vote of the members in attendance and a record of how each member voted."

Toncray reports, "Massie said Thursday BTADD board members were trying to avoid transparency and then followed the statement by asking how much public business is being conducted in secret at BTADD meetings." Massie told her, "Back room dealings were going on. Our citizens deserve full transparency and protection from these kinds of acts. That's why I filed the complaint." (Read more)

Senate kills, House revives moments later a bill that would curtail child services transparency

A bill opposed by the Kentucky Press Association that could increase secrecy at the Cabinet for Health and Family Services died in a Senate committee on Tuesday then was revived minutes later in the House of Representatives.

House Bill 200, legislation sponsored by Rep. Susan Westrom, D-Lexington, was defeated in the Senate Health and Welfare Committee. Moments later, in what Courier-Journal reporter Deborah Yetter reported was a pre-arranged move, she walked to the bill to the House State Government Committee, where it was added to a different bill and passed unanimously.

Critics of the measure, who say it would sharply curtail public access to details of child-abuse deaths and serious injuries, were outraged, saying the bill gives the cabinet more power to withhold information.

“It’s a secrecy bill,” David Thompson, executive director of the Kentucky Press Association, told the Courier-Journal. “They have played right into the hands of the cabinet.”

Media attorney Jon Fleischaker testified the Senate committee about concerns over the lack of transparency the bill has for cabinet oversight, even though supporters were pushing it as a transparency bill. Portions of the bill would allow the cabinet not to release the county where a death or near-death occurred, nor the name of the hospital where the child was taken.

Fleischaker, an author of the state's open government legislation, testified that if this bill had been in force when Amy Dye, a 9-year-old Todd County girl, was killed, the public may have never known about her death, or that a 17-year-old sibling was charged with, and then confessed to, killing Amy. He's now serving a 50-year sentence.

The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information.

For more on this story, see Deborah Yetter's story here.

Cabinet appeals judge's order that it pay civil penalties and newspaper's legal fees

The state Cabinet for Health and Family Services has appealed a judge's order telling it to pay more than $6,000 in civil penalties and nearly $10,000 in attorney fees for acting in bad faith in resisting release of files related to Amy Dye, the 9-year-old Todd County girl who was murdered by her foster brother last year.

Franklin Circuit Judge Phillip Shepherd ruled that the Todd County Standard was entitled to the fees and fines because the agency violated the state Open Records Act. "That ruling and others like it for the Louisville Courier-Journal and Lexington Herald-Leader are thought to be the first time a state agency had been fined for violating the open record laws since they were adopted in the 1970s," the Standard reports.

"The agency at first denied even having any records on Dye then said it did not have to give the records to the Standard because Dye was killed by a sibling and not a parent," the paper notes.

Perry judge-executive acknowledges fiscal court sometimes ignores Open Meetings Act

The Perry County Fiscal Court has acknowledged violating the Kentucky Open Meetings Act by conducting unannounced meetings because, in the words of Judge-Executive Danny Ray Noble, it is for the good of the county.

“Sometimes we do break the Sunshine Law because we have to,” said Noble at the fiscal court meeting in Hazard Wednesday, according to a story in the Hazard Herald.

The Herald story reported Noble said during the meeting Wednesday that the court would meet with an engineer later in the day outside the official meeting, with a quorum present, to discuss water issues in the county. He noted that the engineer was unable to make the meeting Wednesday morning.

Noble said the court sometimes holds unannounced meetings so magistrates can discuss issues and agree on action before a vote is taken during a regular meeting. He said that he believes this makes them more efficient in public meetings.

The open meetings law, enacted in 1974 and amended in 1992, requires that the "the formation of public policy is public business and shall not be conducted in secret."

The law requires that regular meetings must be scheduled at specified times and places which are convenient to the public, and that notice must be given of regularly scheduled meetings and of special meetings not on the regular schedule, which must be adopted and published.

The law forbids elected officials from meeting secretly unless the legislative body first meets publicly, votes to go into closed session by defining the nature of the discussion, and cites a specific exception in the law that allows a closed session. Typically, the most cited exceptions involve specified personnel issues, a threatened or actual lawsuit or the purchase or sale of property. No votes can be taken in a closed session.

Meeting privately to come to predetermined decisions deprives the public of the debate on important policy matters, an abridgment of citizens' role in a democracy. The Kentucky Supreme Court in 1997 ruled that “The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions.”

Citizens who believe a public agency has violated the open meetings law may file a complaint with the presiding officer outlining the perceived violation and suggesting a corrective course. If the agency denies the complaint, citizens can file the complaint with the Kentucky attorney general, whose ruling has the force of law until appealed to circuit court.

Read the Herald story here. In an editorial, the weekly newspaper called for a halt to the practice, saying the fiscal court was "doing the residents of Perry County a great disservice."

House passes bill allowing county clerks to charge up to 50 cents a page for copies of any record

The state House has passed and sent to the Senate a bill that would allow county clerks to charge up to 50 cents per page for paper copies of any record and let them ban scanners, cameras and other devices that could be used to make electronic copies. An attorney general's opinion limits the charge to 10 cents per page unless the actual cost of producing the copy is greater.

The Kentucky Press Association supported a floor amendment Friday to remove the relatively short provision from the bill, a lengthy measure that otherwise deals with delinquent taxes. The floor amendment lost 73-15 and the bill passed 77-13, indicating that members of the Kentucky County Clerks Association had lobbied it well. For roll-call votes, click here.

KPA Executive Director David Thompson said the group is working with the clerks' association on an amendment "that would make the language specific to certain recorded documents and not generally all public records. Our plan is to amend it in the Senate. We do not want to kill the bill because for 99 percent of the legislation, it's changes in the property tax/delinquent taxes that county clerks need. We have no problem with that part. So we continue seeking changes only in one section that will make it acceptable to the public and the press and then we'll leave them alone."

The importance of the bill to the clerks could be indicated by its title, "An act relating to governmental revenue functions and declaring an emergency." Such a broad title could make it a vehicle for other types of amendments.

Ironically, the bill passed during Sunshine Week and on the 251st birthday of James Madison. For a copy of it, click here.

Weekly newspaper conducts open-records audit of local public agencies

One of the more ambitious Kentucky projects during Sunshine Week, the annual observance that highlights the importance of open government, was a local records audit by the Adair County Community Voice in Columbia. The weekly newspaper engaged eight "average citizens" to seek specific records from eight public agencies and published the generally good findings in last week's paper, with an explanation of the audit and the issues, and an editorial by Editor-Publisher Sharon Burton giving her motives.

Burton wrote that since she started the paper 10 years ago, "We have seen a dramatic improvement in the understanding for openness and the cooperation we receive, so "We didn't do it to harass or put local officials on the spot," but rather "to get a better idea of where we are and where we need to continue educating and informing public officials and the public about the role of government."

The audit found the least cooperation when it asked local law-enforcement agencies for salary information. Burton told us in an email, "Our sheriff's department provided a copy of salaries with the names marked out. Numbers only. lol. Then the secretary called and said we made them sound bad. Love this job." The sheriff's department claimed that the auditor said he didn't need the names; "The auditor said he didn't specify that he needed the names," the story by Burton and Allison Hollon reports. The Kentucky State Police didn't reply to a mailed request.

The Voice does not put most news stories online, but we have posted its front page, Page 2 and Page 3 on the site of the Institute for Rural Journalism and Community Issues. If your newspaper conducted an open records audit for Sunshine Week, please let us know so you can be recognized, too.

Open-records requests: One weekly tells how, another suggests its competitor does it too much

Sunshine Week, which ended yesterday, is designed to increase public awareness of the value of open government and efforts to keep it open. In Kentucky, at least one weekly newspaper made a special effort to spotlight the observance and its issues, noting inconsistency in what local government offices charged for copies of public records. Three counties to the east, another weekly made no mention of Sunshine Week, but created an unusual spectacle of raising questions about open-records requests made by the local, competing daily.

When a woman asked him if the sheriff could charge $5 for a five-page report, Editor-Publisher Ryan Craig of the Todd County Standard in Elkton surveyed his public agencies and reported, "Most of the public offices in Todd County are overcharging for public records." The sheriff''s proposed fee exceeded the allowable 10 cents per page by $4.50. Local police charge 25 cents a page. That's also the figure charged by court clerks. The courts have exempted themselves from the state Open Records Act, but media lawyer Jeremy Rogers told Craig that the fee may have prompted overcharging by agencies that are covered. Craig's story ended with a walk-through of how request records, and how to appeal to the state attorney general's office if a request is denied. The Standard is not online, but the pages with the story are here.

Publisher Jeff Jobe of the weekly Barren County Progress in Glasgow is in competition with the Glasgow Daily Times, as was evident from the top story in Tuesday's edition. The subhead reported that the Times had targeted the city police department since the hiring of a new chief. Most of the front-page story, which also consumed most of an inside page, was a listing of the requests in 2010 and 2011, only one made by the Progress.

"In recent weeks there have been numerous local concerns about the number of open-records requests made to certain agencies, along with speculation about the nature of those requests," the story said, without saying who was concerned or what the speculation was. Jobe filled that vacuum in an editorial, saying the Times appears determined to prove its opinion that the Chief Guy Turcotte is not worthy of the office. "Perhaps someday the GDT will hit pay dirt and Turcotte will go down in flames, but I am certain that with each open-record request that does nothing more than cost the city time in preparing documents, their requests come closer and closer to being considered nothing more than a 'Witch Hunt'." The Progress is mainly behind a pay wall, but we have scanned and posted the editorial here.

Rockcastle County 911 Board failed to prove harm in releasing tape and dispatch log

The Rockcastle County 911 Board violated the state Open Records Act by failing to prove that a tape and dispatch log were exempt from disclosure, the attorney general's office has ruled.

In originally denying the request, the board indicated that the records were “unavailable because of an ongoing investigation.” While this is a valid reason for exempting a public record under KRS 61.878(1)(h), the board did not cite the statute in its denial (violation of the procedural requirements) and also failed to prove that release of the record would harm the Mount Vernon Police Department (violation of the substantive requirements).

After privately reviewing the tape and dispatch log, the attorney general’s office confirmed that the records were of radio communications concerning a traffic stop. However, because the records only contained general information and not primary evidence, the office decided that disclosure would not weaken the board’s case, hinder its investigation, or taint the jury pool. It said the board did not overcome the presumption in the act that records are public.

Kentucky State University joint regent committees failed to follow provisions of Open Meetings Act

The attorney general's office has upheld an appeal by The State Journal of Frankfort and reporter Katheran Wasson that committees of the Kentucky State University Board of Regents violated the state Open Meetings Act earlier this year.

The Finance and Administration Committee and the Audit Committee jointly held a closed session meeting on Jan. 27 to discuss an external audit. Before entering the closed session, the committee failed to pass a formal motion to go into closed session and cite the reason for the session, as required by the act.

Wasson submitted a written complaint describing the violations to the presiding officer of the meeting, Charles Whitehead. In her complaint, she requested that the full board acknowledge, in writing, that the closed committee session violated the law. She also requested that “members of the Finance and Administration and Audit Committees make public any notes, minutes or recordings taken during the closed session," and if no such records were created, Whitehead" make a public, written statement of what transpired during the closed session and what was discussed in detail." Finally, Wasson asked that the board "vow, in writing, to never meet in closed session again without citing a specific statute and taking a formal vote" and that a written statement to this effect "be shared with all members, in case they ever find themselves serving as chairperson of a committee or presiding over a meeting."

Under state law, [KRS 61.815(1)(b)] the following are required as conditions for conducting closed sessions: Notice must be given in an open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific exception authorizing the closed session; closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; no final action may be taken at a closed session; and no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

According to Wasson's transcript of her recording of the meeting, Whitehead said, "I’d like to take this committee into closed session so that, so that, so that – I usually do this, just to hear from the auditors, just so that they can say anything that they might want to say. Can we do that?" Wasson said one committee member then looked at Lori Davis, the university’s general counsel, who approved.

Regents Chairwoman Laura Douglas denied the meeting was illegal and rejected Wasson's remedial steps, saying the committee closed the meeting under an exception that allows closed discussion of on threats to public safety. Attorney General Jack Conway ruled that the exception was clearly inapplicable and the meeting was illegal.

Bill would shield some holders of competitively procured contracts from open-records requests

A state House committee voted yesterday "to change the Kentucky Open Records Act to make private the records of some organizations doing business with government," John Cheves reports for the Lexington Herald-Leader. "Presently, any organization that gets at least 25 percent of its revenue from local or state government must share some records under the act, which is meant to bring transparency to public spending." House Bill 496 would exclude from the calculation money from contracts "obtained through a competitive public procurement process."

The bill's sponsor, Rep. Johnny Bell, D-Glasgow, said it was prompted by letters that Glasgow lawyer John Rogers has been sending highway contractors, who depend largely on state government. Rogers didn't return Cheves's call for comment, but "One of the companies that Rogers has asked for records, Hinkle Contracting Co. of Paris, has alleged in a letter to Attorney General Jack Conway that Rogers is working on behalf of a company called Utility Management Group," which runs Pike County's water and sewer systems. "Conway's office ruled in September that UMG is a public entity under the Open Records Act and must disclose spending information. UMG is appealing in Pike Circuit Court."

Buckner Hinkle Jr. of Hinkle Contracting told Cheves that Rogers is trying to "goad other contractors to support UMG" in the lawsuit. "Bell said he is not involved with UMG, and his bill is not intended to protect UMG from public disclosure," Cheves reports.

Kentucky Press Association Executive Director David Thompson said KPA does not oppose the bill because Bell changed it to say that the 25 percent rules applies to any fiscal year, not "the current fiscal year." Current law leaves that point unclear.

Zambia looks to Kentucky for help in passing a Freedom of Information Act

Kentucky’s Open Records Act "may serve as a model for one being drafted in Zambia, a longstanding democracy in Southern Africa," University of Kentucky journalism professor Kakie Urch reports on bluecoast live, the blog she runs for UK students' multimedia projects.

Eight Zambians interested in freedom of information visited Frankfort Monday as part of a State Department-sponsored trip to the U.S. On Friday, they had meetings in Louisville, where they were based during their time in Kentucky. Their guide Monday was Al Cross, director of the UK journalism school's Institute for Rural Journalism and Community Issues, who has traveled twice to Zambia to help journalists there.


Monday's first meeting was at the attorney general's office, where Assistant Attorney General Amye Bensenhaver, far right in photo, explained the office's role in open-meetings and open-records appeals. John Nelson, editor of the Advocate-Messenger in Danville and The Winchester Sun, is shown talking about the statewide open-records audit conducted when he was KPA president and the special section about the audit and other open-government topics that was inserted into all Kentucky newspapers. David Thompson, executive director of the Kentucky Press Association and the longest-tenured state press group head in the U.S., talked about the group's open-government work and other newspaper issues. He also took the photo above and posted an item on the KPA blog.

Dr. Mike Farrell, associate professor of journalism at UK, talked about open-government issues and the work of the Scripps Howard First Amendment Center, which he directs (and which publishes the KOG Blog). UK assistant professor Kakie Urch discussed the coming opportunities in digital media in Africa and accompanied the group on visits to the House budget committee and the Tobacco Settlement Oversight Committee, where they posed for a picture with the committee.

Between meetings the group encountered and spoke briefly with Lt. Gov. Jerry Abramson and Jack Brammer of the Lexington Herald-Leader, the longest-tenured journalist in Frankfort. The final stops at the state Capitol were in the Senate and House, where the group was recognized with floor privileges and a legislative citation, respectively. They and Profs. Cross and Urch posed for a photo with Sen. Julian Carroll, D-Frankfort, who was governor when the Open Records Act was passed in 1976 and lieutenant governor (a job that then included presiding over the Senate) when the Open Meetings Act was passed in 1974.

Left to right: Al Cross, Kakie Urch, Morden Mayembe (FOIA task team, Ministry of Information), Donte Taylor (U.S. Department of State), Anthony Mukwita (editor/deputy managing director, Zambia Daily Mail), Julian Carroll, Suzen Kantantamalundu (research and planning director, Ministry of Home Affairs), Elizabeth Chanda (communications lecturer, University of Zambia), James Banda (president, Law Association of Zambia), Masuzyo Ndhlovu (public relations officer, Zambia National Broadcasting Corp.), Belina Musopelo (legislative drafter, Ministry of Justice), Daniel Sikazwe (chair, Media Institute of Southern Africa-Zambia), Concepcion Vasquez (State Department).

Press association opposes family-court bill that would set up prior restraint confrontations

The Kentucky Press Association is opposing a proposal that purports to open the state's family court system but would actually fall far short of that promise.

House Bill 239, which was approved last week without dissent and sent to the Senate, would set up a pilot project in state courts that deal with dependency, neglect and abuse proceedings or termination of parental rights. The press association has for years encouraged the state to open family court to the public and the media.

But KPA Executive Director David Thompson, in an email to the association's members, characterized the project as "more of a closed court, once it's open," and said the proposal clearly would violate the First Amendment prohibition of prior restraint on news coverage.

Under the plan approved by the House, any person – a private citizen or a journalist – attending a hearing would be prohibited from naming any individual involved in the court proceeding or giving any information that would lead to the identity of any individual. That would include identifying a witness who testified at the proceeding. That prohibition would be in force "outside of the court room."

The plan also allows anyone attending the hearing to take written notes, but it gives the judge or court official the right to inspect those written notes before the notes are taken from the court room.

"There is no openness when the public and the media are gagged, and written notes sanitized by court officials," Thompson said.

The Supreme Court of the United States ruled in 1976 in Nebraska Press Association v. Judge Stuart that a judge's order that journalists who attended a preliminary hearing could not report anything they heard until the trial started was an unconstitutional prior restraint.

The court in 1989 in Florida Star v. B.J.F. ruled unconstitutional a Florida law that prohibited the publication of a rape victim’s name by the news media.

"Numerous legislators have referred to opening family courts as a way to give more transparency to the public about issues involving the Cabinet for Health and Family Services. Nothing needs to be said about how important that is. But House Bill 239 has not become that vehicle," Thompson wrote.

Judge orders Cabinet for Health and Family Services to speed up its release of child-abuse records

The state Cabinet for Health and Family Services has been given 90 days to release thousands of pages pertaining to about 180 cases of children who died or were badly injured from abuse or neglect. The order was issued Thursday by Franklin Circuit Judge Phillip Shepherd, who called the cabinet's reluctance to comply with state open records laws an "utter failure," reports Deborah Yetter of The Courier-Journal. The ruling is the latest in the cabinet's fight with the Louisville newspaper and the Lexington Herald-Leader.

Shepherd's ruling replaces a previous order that told the cabinet to release 1,000 pages a week, which it started doing Jan. 27. The documents released so far — which have been "heavily redacted" at the cabinet's discretion and against Shepherd's ruling — represent 15 cases. The cabinet argued it should not be obligated to release the records since it is appealing Shepherd's decision, but the judge rejected that argument. He also said the cabinet had to list reasons for why it was redacting some information "and be prepared to defend them in court after releasing the files," Yetter reports. (Read more)

Policy won't cut it: AG says public defender has to disclose cases she handled in certain time period

The attorney general’s office recently found that the Department of Public Advocacy improperly withheld records in responding to a request for documents identifying a DPA attorney's cases by case name for March and April of 2010 and their trial dates.

Attorney General Jack Conway said the DPA, in its Dec. 19 response to James Potter, violated the Act procedurally and substantively. Procedurally, the response did not cite a specific exception to the Open Records Act. Substantively, the DPA relied heavily on a policy – based upon the Rules of Professional Conduct for lawyers and an ethics opinion from the Kentucky Bar Association Ethics Hotline Committee – not to disclose lists of client names absent a lawful order or other legal requirement to do so. The policy says “Specific case information is not to be shared, but generally case totals or trend data not identifying a particular client may be shared.”

The attorney general's office considered those arguments in a 2002 decision (02-ORD-103) and concluded that disclosure of the names of clients represent by a named DPA attorney would violate neither attorney-client privilege nor the client’s privacy. It said that when represented by DPA counsel in open court, clients cannot expect confidentiality.

On an aside, the DPA made a supplemental response that tried to justify the denial on the basis that the information that Potter requested, while it existed in a database, was not a regular report generated by the DPA. Conway said that argument was procedurally deficient because the open-records law makes clear that a public agency has discretion to tailor the format of existing records to conform to the parameters of a specific request. He said the DPA must produce a report for Potter or give him access to the entire Kentucky Unified Criminal Justice Information System database after redacting any statutorily protected information.

Judge urges governor to side with openness, says appeal of other judge's ruling is to protect cabinet

A veteran Kentucky circuit court judge has taken issue with Gov. Steve Beshear's recent opinion piece published in a number of Kentucky newspapers that defended his administration's appeal of a court decision that ordered some child abuse records be open to the public.

Judge Tyler Gill, circuit judge in Todd and Logan counties for 17 years, disputes some of the governor's contentions in a column published in The Courier-Journal today. He concludes after his years on the bench that openness and accountability are the better policies.

"Openness should always be the rule where government is involved and secrecy the rare and carefully considered exception to that rule," Gill writes. "I have come to believe that secrecy in courts of law should be eliminated in every adversarial action initiated by any agency of the state. Non-adversarial actions, such as private uncontested adoptions or adoptions after parental rights have previously been terminated, should remain confidential.

He was critical of the governor's support of the state's appeal of a Franklin Circuit Court decision ordering the Cabinet for Health and Family Services to release with minimal redacted information its records of children who died or nearly died while under protection of the cabinet.

"I have also come to believe that confidentiality imposed by our statutes is more often used to hide state incompetence or misconduct than to protect the citizens of Kentucky. Do not be misled. The cabinet’s appeal of the Franklin Circuit Court ruling is not a high-minded effort to protect the privacy of persons who report child abuse. It is to protect the cabinet."

Gill also cited a case he presided over in 2008 in which he said a lawyer for the cabinet was working against the interests of a patient committed to its care. He argued that openness was the only way to make the cabinet accountable for its actions.

"While we can always find some downside to open government, the consequences of government secrecy are far worse. We need only look to the courts and governments of totalitarian regimes such as China, North Korea, Iran or Cuba for this lesson."

He ended by urging the governor to work to open records and not close them. "The governor concluded his article by saying that he would continue to battle in court alongside the cabinet and its lawyers. I urge Gov. Beshear to stop listening to the cabinet’s lawyers and to start battling for the people of Kentucky. Our children deserve an open and accountable government."

Read his full column here.

Health and family cabinet keeps withholding more information on child abuse than judge allowed

The state Cabinet for Health and Family Services released three more death and near-death cases involving child abuse or neglect Friday under court order, but continued to withhold critical information. It has appealed the order.

The 2009 cases involve two babies who died from suffocation while the parents were impaired. A third case involves a 2-year-old girl from Lawrence County, who was injured after she was reportedly kicked in the head by a horse while unsupervised.

The cabinet "continues to withhold, or redact, far more information" than was allowed under the Jan. 19 order of Franklin Circuit Judge Phillip Shepherd, reports Deborah Yetter of The Courier-Journal. Shepherd said the cabinet could withhold the names of children seriously injured by abuse or neglect, names of private citizens who report suspected abuse, the names of minor siblings in the home and the names of minor perpetrators.

But the cabinet is withholding more information than that. "For example, in the case of the girl injured by the horse, the cabinet deleted the name and relationship of the adult who was watching her, even though the adult is named and identified as her grandfather in a separate internal review of the case," Yetter reports. "The cabinet also withheld juvenile and family court records in that case and the names of all adults involved." The girl recovered from the skull fracture sustained by the horse.

Gavin Villarreal never woke up after he was found with a plastic bag over his head in his crib, possibly placed over the 5-month-old's head by other young children in the home. His parents both tested positive for drugs on the day of his death and were convicted. In the third case, a month-old baby died after his father apparently rolled over him in his sleep. Both parents admitted they had been drinking and used marijuana before they went to bed. (Read more)

Beshear and child-welfare officials appeal records decision, say it is too broad, look to legislature

On the day the state was supposed to release unadulterated records on deaths and near deaths from child abuse, under a court order, it filed an appeal to stop the process. And though Gov. Steve Beshear had ordered the Cabinet for Health and Family Services to release the records, yesterday he sided with its officials, saying in an op-ed piece sent to Kentucky newspapers he did not "think the judge's order was protective enough" of informants who often want to remain secret, such as relatives, health-care providers, teachers and law-enforcement officials. (Getty Images photo)

“You teach in a small community and suspect a student is being abused,” Beshear wrote. “Can you come forward without the newspaper naming you as the accuser?" Jon Fleischaker, attorney for The Courier-Journal and the Kentucky Press Association, said Beshear was “fear-mongering,” and noted that Shepherd’s order to release records applies only in cases in which children were killed or nearly killed from abuse or neglect, following a state law designed to hold the cabinet accountable for its child protective services.

Beshear wrote, “The cabinet has been accused of 'operating under a veil of secrecy' in a supposed attempt to protect inept workers and a poorly designed system. But this is not about shielding the system from scrutiny. We understand the need to be more transparent than in years past.” The legislature may decide the issue, because Beshear said legislation is needed to clarify the extent of confidentiality, and House Health and Welfare Committee Chairman Tom Burch, D-Louisville, agreed.

In December, the cabinet handed over 353 pages of records, but the names of at least eight children who died from abuse or neglect had been redacted, along with all the names of children who had been seriously injured, as well as much other information. The Courier-Journal, the Lexington Herald-Leader and the Todd County Standard had sued the cabinet for refusing to release the records. Twice before, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to turn them over. Last week, Shepherd fined the agency $16,000 for its secretive treatment and delays. He also found the cabinet should pay more than $57,000 in legal fees for the newspapers. (Read more)

Yesterday, the cabinet filed its motion with the state Court of Appeals and "asked the court to block Shepherd's Jan. 19 order to release records, starting today, with limited redactions," reports the C-J's Deborah Yetter. In the meantime, the cabinet released about 90 internal reviews of child deaths and serious injuries incurred by abuse but with deletions it feels is necessary "to protect the best interests of the state's child welfare system," its motion read. (Read more)

Journalists, child-protection officials debate their differing approaches to Ky. child abuse problem

In a state that has led the nation in deaths of children from abuse and neglect, Kentucky journalists and the officials who must protect children agree that more public attention needs to be focused on the issue.

But they don’t agree on how to do it, and have been fighting expensive battles in court over it, because their professions have sharply divergent views on what kind of information the state should have to release.

“The profession of social work is based on confidentiality,” the state’s top child-protection official told reporters, editors and publishers during a panel discussion at the Kentucky Press Association convention in Lexington Friday afternoon.

Confidentiality “was drilled into us just as openness was drilled into you” in professional education, said Teresa James, who became acting commissioner of the Department for Community-Based Services in December after 25 years as a social worker. “Just as passionate as you are about the First Amendment, I am passionate about confidentiality.”

Social workers argue that without being able to assure informants of confidentiality, the system that protects children won’t get some of the information it needs.

But journalists, their employers and their lawyers say the state has been much more secretive than the law allows about cases in which children died or nearly died, circumstances in which state law makes otherwise confidential information available. (Read more)