Thursday, December 31, 2015

Reviewing Ky.'s open records, meetings laws

Editor's Note: I generally don't write these posts in the first person, but I thought one post doing so wouldn't hurt.

The ending of one year, and the starting of another, provides an excellent opportunity to look back on the past year. As cliche as it may be this time of year, I wanted to review some of the aspects in Kentucky open records and open meetings law from 2015.

The aim, as I have written before, of this blog is to provide the public with information on the state's open records and open meetings laws.

The attorney general's office releases new opinions every week or so, and though some opinions deal with seemingly mundane topics—for instance, procedural violations of the Kentucky acts—I believe highlighting all types of AG opinions is important because each opinion demonstrates in broader context how the state laws operate in practice.

Within the next few weeks, I will be receiving the first opinions of Andy Beshear's office, when he assumes his elected position after the new year.

In all the time that I have worked on this blog (three years), I have only read the opinions of Attorney General Jack Conway's office. I will be interested to see the style of Andy Beshear's opinions and to begin to recognize the different names of attorneys in his office.

Though I'm probably one of only a few people in the state who await the arrival of new attorney general's opinions concerning open records and open meetings issues, I look forward to each new batch because they show the development of the state's laws in practical ways.

For instance, certain aspects of Kentucky's laws seem awfully conspicuous—for example, records must actually exist for an individual to be able to request them from a state body.

But however obvious these principles may be, they are indispensable for individuals in Kentucky to know in order to be able to exercise their rights under the acts.

In 2016, I expect new advances in Kentucky's open records and open meetings laws, and I expect to write about ones that I think add to the greater narrative of shining light on the state's actions.

Happy New Year!

Monday, December 21, 2015

The ending of one's term, and the beginning of another's

In January, Kentucky will have a new attorney general when Andy Beshear takes office. (See a recent article by The State Journal in Frankfort).

During the closing weeks of 2015, current Attorney General Jack Conway's office will be issuing its final open records and open meetings decisions.

In early December, the office released several open records opinions.

One of them dealt with a seemingly obvious principle: records must exist for a public agency to be required to produce them.

In 15-ORD-217, in re: Bruce M. Tyler/Council on Postsecondary Education, the attorney general's office found that the Council did not substantively violate the open records act by denying a records request "where no responsive records existed."

In that case, Dr. Tyler had requested records relating to the resignation of the University of Louisville's provost.

In response to his request, the Council told Dr. Tyler that matters of employment at U of L for faculty and staff are under jurisdiction of the university's Board of Trustees. The Council further told Dr. Tyler that it did not have any correspondence with U of L concerning either his or the former provost's employment at the university.

When Dr. Tyler initiated his appeal with the attorney general's office, the Council argued that it did not have any records on the subject and that requests for information were outside the scope of the open records act.

As such, the Council argued that its response was sufficient, and the attorney general's office agreed.

"[A]n agency is not obligated to honor a mere request for information under the Open Records Act," the opinion read. "Furthermore, a public agency cannot afford a requester access to a record that it does not have or that does not exist."

This decision serves as a reminder to individuals making requests under Kentucky's open records act that they should be specific as to the records they desire to inspect.