National report gives data on records decisions, notes staff attorneys give state agencies an edge; expert says noncompliance is likely to increase

Based in part on a post by the Kentucky Open Government Coalition

The National Freedom of Information Coalition recently issued a white paper, ”Blueprint to Transparency: Analyzing Non-compliance and Enforcement of Open Records Laws in Select U.S. States.”

Kentucky is one of the states that is featured. The white paper gives recent data showing widespread violation of the Kentucky Open Records Act, and notes the disadvantage records requesters face when fighting with taxpayer-paid lawyers — an issue currently before the Kentucky General Assembly.

NFOIC reviewed open-records decisions by the Kentucky attorney general in 2016 and 2017 revealed a high prevalence of noncompliance: Almost half of open-records decisions in 2016 and 2017 exhibited a violation of the state Open Records Act (49 and 48 percent, respectively).

Former assistant attorney general Amye Bensenhaver, co-founder of the Kentucky Coalition for Open Government and primary author of open-government decisions for the attorney general for 25 years, told NFOIC that she expects noncompliance will grow because she sees "now-common impediments to access that were uncommon in the past—agency failure to conduct an adequate search for responsive records; agency rejection of requests as overbroad; unjustified agency delays in producing public records. The list of evasive tactics is growing."

Of the 511 decisions NFOIC reviewed, 74 (17%) found that an agency improperly withheld records; 60 (12%) found an improperly stated exemption. Louisville lawyer Jon Fleischaker, chief author of the records law, said public agencies often cite improper exemptions and ignore settled law.

“You have public officials that are reaching,” Fleischaker said. “And if they have a lawyer and they go to the books they’ll figure out that there are a lot of cases that say ‘No, they can’t do that. This has already been decided.’”

Also among the most common types of violations are those based on time, such as failing to respond to a request or allow inspection in a timely manner; 84 of the 511 records decisions (about 16%) exhibited a such violations, which are treated as procedural as opposed to substantive violations.

“I don’t consider, and I know Fleischaker doesn’t consider, a procedural violation a petty violation. It’s still a violation,” Bensenhaver said.

Playing with public money

Open-records decisions have the force of law, but the losing party can take the case to circuit court, and state agencies often do. Any civil penalties for violations fall on the agency, not the individual officials.

Because taxpayers cover the cost, a state agency has the resources — in the form of attorneys on the state payroll — to devote to litigation and the appellate process, allowing the state to appeal as many times as allowable to avoid or delay disclosing the records.

Unlike requesters, the public agency usually does not incur hourly attorneys fees.

“They’re using their time [on the public records dispute] instead of someplace else ... but it’s easy to hide that expense,” Fleischaker said. “It goes toward a different line item: Personnel. And nobody goes back to look at that stuff.”

Jason Riley of Louisville's WDRB-TV said some state agencies feel they are exempt from the law since penalties aren’t rigorously enforced against them: “Some agencies know how to work the system in their favor so as to not have to provide records they don’t want to provide unless a citizen or media outlet is willing to pay a lot of money and wait.”

Bensenhaver says no other state agency is as notorious for violating the records act than the Kentucky State Police. In the decisions where KSP was a party in 2016 and 2017, the attorney general found the agency in violation of the records act 19 times, or 59% of the time.

Riley found KSP was the most frequent violator of the act over the last five years​, after conducting a review​ of attorney-general decisions.

Bensenhaver, Riley and Fleischaker said the KSP frequently appeals decisions, which lengthens litigation and makes proceedings more expensive for records requesters.

“We won about $11,000 in fines and attorney fees earlier this year” from the KSP, Riley said, “but they have appealed that ruling.”

Large local governments also have attorneys on staff, but many if not most use contract attorneys and thus incur hourly fees.

House Bill 232, sponsored by Rep. Maria Sorolis, D-Louisville, would require agencies to pay attorneys’ fees if a court finds a record was willfully withheld; her HB 309 would award fees when there is no “justiciable reason” for an agency's denial of a complaint that it violated the Open Meetings Act. Neither bill has been posted for committee consideration; Sorolis is a Democrat, newly elected to a House with a Republican supermajority.

The national report says, “According to a ​2010 examination of state transparency laws​, the vast majority of state jurisdictions explicitly either allow for, or mandate, attorney fee shifting in open-government dispute cases because these disputes confer a societal good, not just personal benefit . . . to ensure that plaintiffs are able to find lawyers to represent them; to attract competent counsel to seek redress of statutory rights; and to even the fight when citizens challenge a public entity.”