Beshear's open records decisions are undoing Conway's last-minute bomb

By Amye Bensenhaver
for the Scripps Howard First Amendment Center

On Jan. 15, Attorney General Andy Beshear moved closer to overruling a heavily criticized open records decision issued by his predecessor, Jack Conway, on Conway's last day in office in 2015.

AG Conway’s open records ruling
In the 2015 decision, Conway concluded that communications concerning public business that is conducted by public officials and employees on privately owned devices are not accessible under the Open Records Act. The rationale for the rules was those records are not “possessed” by the public agency they serve. This decision was then cited by Sen. Damon Thayer in 2018 as the basis for his ill-fated proposal to exclude “emails, texts, or calls on devices paid for entirely with private funds and which do not involve government email accounts” from the broadly worded definition of the term “public record” in the open records law.

Conway’s 2015 decision ignored both the expansive definition of the term “public record” and years of precedent that had guided his office’s interpretation of the law. That precedent recognized that “[i]n the end, it is the nature and the purpose of the document, not that place where it is kept, that determines its status as a public record.”

In addition, Conway’s ruling ignored an ever-growing body of law outside Kentucky declaring that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them” maintains them on a private device.

Fundamental to this rule of “constructive agency possession” is the recognition that the purpose of public access laws is not served if an official or employee “can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain.” It makes as much sense, the reasoning goes, to say that the official “could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.

Although Conway discouraged the use of private devices in conducting public business, he left the door open for widespread abuse. Public officials and employees wishing to evade scrutiny—whether through their records or their meetings—received a license to do so through the use of privately owned devices.

Recognizing the threat to public access that Conway’s 2015 decision represented, the open records staff within the attorney general’s office thereafter attempted to minimize the decision’s potentially harmful impact.

In December 2017, the office issued a decision in which it determined that the University of Kentucky improperly allowed an employee to conduct public business on his private email account by automatic forwarding of all messages on his public account to the private account. The attorney general, then Andy Beshear, characterized this practice as “the functional equivalent of conducting public business solely on a private email account” and declared that the university “systematically failed in its duty to properly maintain its public records.”

In February 2018, the attorney general’s office adopted this position when it held that an Erlanger city official improperly conducted public business on her AOL account and failed to retain those emails. In so doing, the office again found a systematic failure to properly maintain public records.

In 19-ORD-011 (the 11th open records decision of 2019), Attorney General Beshear inched closer to overruling Conway’s decision by declaring that communications concerning a proposed ordinance, conducted by a Park Hills city councilman on a private email account maintained on public equipment, constituted public records under the open records law. The disputed emails, which were submitted to the attorney general for confidential inspection, confirmed that the councilman “used his private email account with the intent to shield the communications from the public” in the belief that he would receive and “use” more candid advice to revise the ordinance and thereby secure city council support.

Relying on open records decisions issued before and after Conway’s 2015 decision, the Jan. 15 decision concluded that because records “used” by an agency are subject to the law “regardless of where they are located or whose ‘personal property’ they are considered,” the emails in dispute were “public records subject to public disclosure unless an exception applies.”

It remains now for Attorney General Beshear to formally overrule Conway’s 2015 open records decision and to declare that all public official and public employee communications concerning public business that are transmitted on public or private devices or accounts are public records—albeit not in all cases open records—to eliminate the confusion and curb the abuses that resulted from that decision.

Amye Bensenhaver served as an assistant attorney general for 25 years, specializing in open records and open meetings appeals. Now retired, she continues to advocate for transparency and accountability. She is a graduate of Centre College and the University of Kentucky College of Law.

2018 in review: Open government defeats and victories

From the viewpoint of an advocate of government transparency, 2018 was a year of some wins and some losses. 

Legislative defeats: 2018’s long legislative session dealt the open records and open meetings laws a substantial blow with the enactment of three new statutory exceptions. HB 302 erects an absolute barrier to public oversight of procurement processes, including those conducted under the widely known Model Procurement Code. KRS 61.878(1)(o) authorizes nondisclosure of all records relating to a procurement until a contract is awarded or the process is cancelled. A corresponding open meetings exception, KRS 61.810(1)(n), authorizes “selection committees, evaluation committees, or other similar groups” established under state procurement laws to conduct “meetings. . . to select a successful bidder for award of a state contract” in secret. 

HB 302 also created a new exception to the open records law for “communications of a purely personal nature unrelated to any governmental function.” KRS 61.878(1)(p) was the result of a hastily brokered compromise between legislators who advocated redefining the term “public record” to exclude public officials’ “emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts” and open government proponents who, recognizing that the transaction of public business on private devices and accounts to evade public scrutiny is an increasingly common practice, vigorously objected.

The legislature also amended a 24-year-old open meetings provision. KRS 61.826 was originally enacted to promote public attendance at public meetings conducted in a single site by video teleconferencing the meetings at various meeting sites across the state with restrictions aimed at protecting the public’s rights under the open meetings law. As amended by HB 592, KRS 61.826 abandons the law’s original intent, shifting the long-recognized preference for the physical presence of public officials at public meetings. Now officials may participate by remote electronically.  This eliminated the law’s original protections for the public’s rights.

Conversely, HB 373, “An Act relating to disclosure of body-worn camera recordings,” provided a model for measured and thoughtful legislative response to challenges presented by evolving technology and record-keeping systems. The newly enacted KRS 61.168 affirms the application of the open records law, as well as laws relating to records management found in Chapter 171, to body-worn camera recordings, striking a balance between the public’s interest in monitoring police activity and individual privacy interests as well as the interests of law enforcement agencies.

Judicial victories:  The courts countered these defeats with a series of victories for the public’s right to know. 

On September 14, the Kentucky Court of Appeal ruled that a university directed audit of documentation relating to physician medical services and billings at an affiliated clinic must be disclosed.  In University of Kentucky v. Lexington H-L Services, Inc. the court rejected the university’s “novel” and expansive interpretation of the preliminary documents and attorney client/work product exclusions in favor of a narrow interpretation of these exclusions. UK has petitioned the Kentucky Supreme Court for review.

In  Finance and Administration Cabinet, Department of Revenue v. Mark F. Sommer and Tax Analysts, issued on November 1, the Supreme Court recognized the public’s right of access to “great bodies of information related to the reasoning and analysis of the Department of Revenue with respect to its administration of our tax laws.” The Court determined that final rulings issued by the department in tax assessment protests that are not appealed to the Board of Tax Appeals are subject to public inspection after personal identifiers are redacted from the rulings. A motion for reconsideration is pending in the case.

On December 14 the Court of Appeals issued an opinion in Purdue Pharma Inc. v. Boston Globe Life Sciences Media LLC d/b/a STAT, affirming a circuit court ruling that unsealed documents obtained by the Kentucky Attorney General in a lawsuit against Purdue, the manufacturer of OxyContin, and sealed under the terms of a 2015 settlement agreement. The court reasoned that disclosure of the documents would enable the public to “assess whether [the] government[‘s] decision to compromise a valuable claim of the people adequately protected their interest or maximized the claim’s value.” The documents were to remain sealed for 30 days while Purdue weighed its legal options.

In other litigation, the Court of Appeals heard oral arguments on September 25 in The Kernel Press, Inc. v. University of Kentucky. The case drew national attention in September 2016, when CNN reported on it and September 2017, when it was cited by the Associated Press as one of several examples of public agencies “turning the tables by suing public records requesters.” In this case, the university sued its student newspaper and the newspaper’s editor after the newspaper received a favorable ruling from the attorney general in an appeal from the university’s denial of a requestfor records relating to sexual harassment complaints leveled by students against a professor. The newspaper awaits an opinion from a newly assigned panel of the court following the defeat of one of the original panel members in the November election.  

Also on September 25, a Jefferson Circuit Court determined that Louisville Metro Government must release the details of its failed proposal for the second Amazon headquarters. The city subsequently announced that it would appeal the circuit court’s ruling to the Kentucky Court of Appeals. 

On October 5, the Court of Appeals denied the Cabinet for Economic Development’s request that it stay enforcement of the Franklin Circuit Court’s ruling that the Cabinet must disclose the names of shareholders in Braidy Industries, Inc., to the Courier Journal. In 2017, Braidy, a private company, received a $15 million direct investment from the state in exchange for a commitment to build a $1.68 billion aluminum rolling mill near Ashland. Because the court ruled on the cabinet’s motion to stay enforcement only, the case remains on appeal.

On October 11, the Franklin Circuit Court issued opinions in two open records cases pitting the Kentucky Center for Investigative Reporting against state agencies that partially denied its requests for records relating to complaints of sexual misconduct in the workplace. In both cases, the court rejected the agencies’ invocation of the privacy exception because “the primary actors and witnesses are public employees, and all conduct involved took place in the public workplace,” concluding that records “involving allegations of workplace sexual misconduct in a public agency. . .must be characterized as presumptively public.”

A third case involving the Courier Journal’s access to records relating to allegations of sexual harassment leveled by a former high-ranking social services official against a male colleague at the Cabinet for Health is pending in Franklin Circuit Court.

Audits confirm the need for greater transparency:  In the midst of these victories and defeats, Auditor of Public Accounts Mike Harmon concluded the first audit of the Administrative Office of the Courts in July that confirmed a lack of “sufficient policies . . . to provide transparency and oversight” within the judicial agency. In September, he announced the findings of an examination of KentuckyWired, the statewide broadband project that has been plagued with cost overruns and missed deadlines, recognizing the need to ensure that “future projects are done in a responsible and transparent fashion.” In December, Harmon released an audit of the Department for Fish and Wildlife that again confirmed a “greater need for [the agency] to act in a responsible and transparent fashion” and recommended “a change in culture.” In announcing the results of an audit of the Kentucky Retirement Systems in December, Harmon advised that a separate examination, relating to the Retirement Systems’ compliance with Senate Bill 2 (2017) which included specific requirements aimed at transparency, is under way.

In spite of the legislative defeats Kentucky’s open government laws suffered in 2018, these cases and Harmon’s findings, reaffirm that “[t]he public’s ‘right to know’ under the Open Records Act is premised upon the public’s right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.”

– By Amye Bensenhaver, former assistant attorney general

Senator files, then quickly withdraws, bill that would have impeded open records law

A bedrock principle of the open records law has recently come under fire.

BR 821, pre-filed by Danny Carroll (R-Paducah), was quickly withdrawn after access advocates vociferously criticized the bill. Among other offensive proposals, the bill would permit courts to impose agency attorneys’ fees on open records requesters in cases in which the court found the requesters’ purpose “inproper.” The latter term was vaguely defined as a request submitted for a “frivolous purpose.”

Asked what he thought of the bill, CNHI reported on January 10, Governor Matt Bevin responded, “I think what should be looked at is: who’s asking for what.” He noted that “outside groups that are around the country that don’t have any presence or direct-seeming interest in Kentucky,” use the law to advance a political agenda/candidate, requesting “reams and reams and reams of information that take hundreds and thousands of hours sometimes” for public agencies to fulfill. Such requests, the governor suggested, impede the Kentucky media “who are asking legitimate questions about information.”

“What” is being requested is a legitimate focus of any open records analysis. “Who’s asking” is not.

Kentucky’s open records law guarantees the right of “any person” to inspect and copy any nonexempt public record. Analysis of an open records dispute between a requester and an agency resisting disclosure, a 1994 open records case declared, “does not turn on the purposes for which the request for information is made or the identity of the person making the request” since “the legislature clearly intended to grant any member of the public as much right [of] access to information as the next.”

In opinions dating back to the 1980s, the attorney general emphasized that “agencies should have uniform policies regarding inspection of their records.  If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect. . . . It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement.”

Simply put, “selective disclosure” of public records violates Kentucky’s open records law. 

Not all state sunshine laws guarantee access without regard to the requester’s identity or purpose. Tennessee, for example, limits records access to residents of the state and requires proof of residency as a condition to access. This aspect of Tennessee’s law has been severely criticized.

There are, of course, reasonable limits on Kentucky’s “identity/purpose neutral” open records law.

In the 1990s, lawmakers amended the law to permit public agencies to recover higher copying fees for reproduction of public records requested for commercial use, defined as “any use by which the user expects a profit either through commission, salary or fee.” The definition expressly excludes use by print or electronic media, for the purpose of broadcasting the news, and use in litigation and claims settlement. Since that time, agencies have also been permitted to verify the requester’s intended commercial use, require a contract for the intended commercial use, and obtain penalties for misrepresentation of the intended commercial use.

Lawmakers have also erected substantial barriers to the rights of prison inmates to inspect public records. And Kentucky’s statutes contain an ever-growing body of confidentiality statutes, such as those governing access to accident reports, that authorize inspection of certain public records by certain identified subsets of requesters only.

As for open records requests for “reams and reams and reams of information that take hundreds and thousands of hours sometimes” for public agencies to fulfill, the open records law already contains an “unreasonable burden/intent to disrupt essential agency functions” exception that authorizes public agencies to deny such requests if the agencies can substantiate this basis for denial by “clear and convincing evidence”º a “high proof threshold.”

“The clear and convincing standard which is built into this provision is sufficient,” the attorney general observed in the 1990s, “to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.”

Kentuckians should resist legislative efforts to empower the courts to decide that a request is improper under a vague standard of frivolousness or any standard other those that currently exist. We should also resist efforts to empower agencies to consider the identity of the requester in responding to a request or to evade a request because the response requires “time and manpower.” These core principles of Kentucky’s open government laws should not be disturbed. 

– By Amye Bensenhaver, former assistant attorney general 

  

Fired Louisville employee has right to his records, despite Open Records Law

A headline in the January 4 Courier Journal, “Fired U of L Ladybirds coach Todd Sharp demands proof of wrongdoing,” involves a little known provision of the Kentucky open records law. On December 15, the university terminated Sharp who gained minor celebrity as the hard driving, often caustic, but highly successful, coach of the university dance team/star of Lifetime’s “So Sharp” reality series. His legal team is now using the open records law to obtain public records that might explain the university’s decision to dismiss him.

In a January 4 letter, attorneys for Sharp requested access to university records relating to him, “including Sharp's personnel file; a copy of the university's cash-handling policy; evidence it relied on to allege Sharp violated the policy and used his position for personal gain; video and audio tapes of the interviews investigators conducted; and all correspondence, texts and emails between U of L staff and the athletic department and anyone about Sharp's employment.”  

    

The little known statute, KRS 61.878(3), has been called “the exception to the exceptions.” It invests public agency employees, “including university employees,” with an enhanced right of access to records that “relate to”  them even if the records are otherwise excluded from public inspection under one or more of the 16 exceptions to the open records law found at KRS 61.878(1)(a) through (p). 

Unless the requested record is “an examination,” or is part of an “ongoing criminal or administrative investigations by the agency,” a public/university employee, like Sharp, has a statutory right to inspect and obtain copies of records relating to the employee which a public agency/university could legally refuse to release to the general public.  

It was a University of Kentucky professor of toxicology, Dr. Davy Jones, who, in 1992, successfully led the charge to ensure the rights of university employees to the same enhanced right of access to otherwise exempt public records that KRS 61.878(3) previously invested in public employees in the state merit system only.

And it was a University of Louisville research technologist, Theresa Hahn, who, in 2001, unsuccessfully fought to extend the scope of KRS 61.878(3) to university records relating to her that were protected by the attorney-client privilege in the Court of Appeals opinion, Hahn v. University of Louisville.  

   

Because the statute extends an enhanced right of access to “applicants for employment,” the Kentucky attorney general has, since 1997, construed KRS 61.878(3) to apply to former employees. That line of judicially untested open records decisions is based on the reasoning that the legislature could not have “intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees.” “Former employees,” the decisions affirm, “have a greater investment in public service, both professionally and legally, and a corresponding need to preserve their legal rights and professional reputations by insuring the accuracy of records relating to them.” Regardless of whether  “they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment,”  former public employees “are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment” and current employees. 

The Courier Journal article does not indicate whether the University of Louisville has responded to the open records request submitted by Sharp’s attorneys and, if so, how. Nor is it entirely clear whether the university’s “criminal or administrative investigation” is concluded, although Sharp’s termination suggests that it is. If so, KRS 61.878(3) governs Sharp’s right of access to records relating to him.  

–Amye Bensenhaver, former assistant attorney general.