Saturday, March 31, 2012

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.

Friday, March 30, 2012

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)

Wednesday, March 28, 2012

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.

Saturday, March 24, 2012

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.

Friday, March 23, 2012

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."

Monday, March 19, 2012

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.

Sunday, March 18, 2012

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.

Sunday, March 11, 2012

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.

Friday, March 9, 2012

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.

Wednesday, March 7, 2012

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).