Kentucky Open Government Blog

Policy Won’t Cut It –The Open Records Act Requires a Specific Exception and an Explanation to be Exempt

2012-02-19T08:57:00.006-05:00

The Attorney General’s office recently found that the Department of Public Advocacy improperly withheld existing records from James Potter’s December 8, 2011 request for documents identifying DPA attorney, Ms. Carolyn Keeley’s cases by case name for March and April of 2010 and their trial dates.

In their December 19, 2012 response, the DPA violated the Act procedurally and substantively. Procedurally, the response did not contain a specific exception to the Open Records Act authorizing the withholding of the requested records or explanations of how the exception applies to the records withheld as mandated by KRS 61.880(1).

Substantively, the DPA relied heavily on a policy – based upon Rules of Professional Conduct 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 DPA cited to Policy 9.00, “Performance Guidelines for Data Collection and Reporting,” that states “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 considered these arguments in a previous opinion (02-ORD-103) and already concluded that disclosure of the names of clients represent by a named DPA attorney would not violate either attorney-client privilege or the client’s privacy. In support of that decision, the AG referenced Hughes v. Meade, 453 S.W.2d 538 (Ky. 1970), which established that “a lawyer may reveal the names and address or clients (a) only where that information is in the public records as a result of the representation of that client; [and] (b) where the circumstances of the representation make it obvious that the client does not expect confidentiality as to the existence of the attorney-client relationship.”

Clearly, representation by DPA counsel in open court, Ms. Keeley’s clients cannot expect confidentiality as to the existence of their relationship. Therefore, the DPA’s arguments are moot and must produce the list of cases.

On an aside, the DPA, in its supplemental response tried to justify the denial on the basis that the information that Mr. Potter requested, while existed in a database, was not a regular report generated by the DPA. This argument is also procedurally deficient because it is clear from KRS 61.874(3) that it is within the discretion of a public agency to tailor the format of existing records to conform to the parameters of a specific request.

As a result, the AG concluded that the DPA must produce a report for Mr. Potter or grant Mr. Potter 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

2012-02-07T07:58:00.008-05:00

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

2012-02-06T15:31:00.002-05:00

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

2012-01-27T17:47:00.001-05:00

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

2012-01-22T22:17:00.001-05:00

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)

Making agency more open gets top priority from attendees at Ky. Summit to End Child Abuse Deaths

2012-01-15T12:54:00.004-05:00

"Eliminating secrecy at the Cabinet for Health and Family Services was the top vote-getter" among 250 "judges, lawmakers, child advocates and social workers" in a packed house at the Kentucky Summit to End Child Abuse Deaths yesterday in Louisville, reports Deborah Yetter of The Courier-Journal.

The top recommendations, as listed by Linda Blackford of the Lexington Herald-Leader, were to increase:
 Improve transparency and accountability at the cabinet;
 Increase funds for proven and effective services such court appointed advocates, substance abuse programs, in-home services and parent advocate programs;
 Increase funds for additional social workers and support;
 Improve the system of collaboration among agencies involved in the child welfare system.

"Transparency and accountability became big issues after the Herald-Leader and The Courier-Journal sued the state to get access to case files of children who have died or nearly died as a result of neglect and abuse," Blackford notes in her story.

Jon Fleischaker, left, and Dr. James J. Clark,
associate dean for research at the University
of Kentucky College of Social Work

Top Kentucky news-media lawyer Jon Fleischaker said it was details of the case of murdered Todd County 9-year-old Amy Dye — details "that the cabinet first denied it had, then fought to keep secret — that helped galvanize public outrage over shortcomings of the child welfare system," Yetter reports, quoting Fleischaker: “There is a culture of secrecy that deprives the public of all information. If the public doesn’t know about it, good luck on getting more funding.”

Cabinet Secretary Janie Miller "gave a brief luncheon speech at the summit, saying her agency welcomed the work of the summit," Yetter reports. "Afterward, in an interview, Miller declined to comment on the litigation over access to child abuse records between the cabinet and the state’s two largest newspapers." (Read more)

"Any bill that Kentucky lawmakers pass in the name of children should uphold the spirit and the letter of the state’s open records law," The Courier-Journal says in an editorial.

Judges like bill to open juvenile courts, but it would make reporters' notes subject to inspection

2012-01-13T10:09:00.001-05:00

Family Court judges told a legislative committee yesterday that Kentucky's juvenile courts should be made open, to improve scrutiny of the state's bedraggled system of child protection, and endorsed a bill to start that. But the state's leading news-media lawyer, who has been fighting to open the system, objected to a provision in the bill that would make notes taken by anyone in court subject to inspection by the judge. For the story from Beth Musgrave of the Lexington Herald-Leader, click here.

Nominate a local open-govermnent hero for national recognition during Sunshine Week

2011-12-28T12:56:00.001-05:00

For the observance of Sunshine Week, March 11-17, you are invited to nominate individuals who have played significant roles in fighting for government transparency. Get the nomination form here. All nominations must be received by Feb. 20.

The 2012 Local Hero will win an expense-paid trip to the American Society of News Editors convention April 2-4 in Washington. Second- and third-place winners will receive $500 and $250, respectively. ASNE and the Reporters Committee for Freedom of the Press sponsor Sunshine Week. For more information and the free materials available to all participants, visit the Sunshine Week website.

Elected public officials have a lower expectation of privacy, AG reiterates in Louisville constable case

2011-12-21T15:57:00.007-05:00

The state attorney general’s office recently found that the Department of Criminal Justice Training improperly withheld records that could reveal whether Constable David Whitlock of Louisville successfully completed the classes in which he was enrolled at the department, as well as any certifications he received.

Whitlock was involved in a shooting altercation at a Louisville store recently, raising questions about his training and whether he had completed the courses that the Louisville Metro government requires constables to take in order to get performance bonds. When Courier-Journal Staff Writer Joseph Lord requested the records on Nov. 4, the department gave him with a copy of Whitlock’s transcript showing which courses he attended and the number of hours for each course, but excluded the test scores, citing the "clearly unwarranted invasion of personal privacy" exception of the Open Records Act.

Attorney General Jack Conway said that as an elected public official, Whitlock represents the public in his work and answers to the voters, so the public has more legitimate interest in him than a general public employee. "Inasmuch as Constable Whitlock, a publicly elected official, enrolled in classes which related to his work and were intended to better qualify him to discharge his duties, the public is entitled to know whether he successfully completed those classes," Conway said.

The decision said it stands for the notion that elected public officials have a lower expectation of privacy than a non-elected public employee, and reiterates a previous decision “that the privacy rights of the public employee extend only to matters which are not related to the performance of his [or her] work.”

Disclosing total fees for sewer project does not invade customers' privacy, attorney general rules

2011-12-08T18:00:00.004-05:00

The City of Danville violated the state Open Records Act substantively and procedurally when it failed to respond timely and gave an invalid reason for refusing to reveal fees generated by a sewer project, the state attorney general's office has ruled.

On Oct. 12, Clay Moore requested “one copy of the revenue received by the City of Danville, by month for 2009, 2010, and 2011, to date, from commercial and residential sewer fees generated from the Mocks Creek Sewer Project for Northpoint [Training Center], Hunt Farm Subdivision and residential customers of Gwinn Island.”

Moore did not receive a response within three days as the open-records law mandates, and he appealed to Attorney General Jack Conway. On Oct. 31, 19 days after the original request, the city clerk issued a response denying the request on grounds of privacy, the exemption found at KRS 61.878(1)(a). Conway ruled that “disclosing the requested aggregate information would not identify the water and sewer usage of specific individuals,” so “that information cannot properly be characterized as personal.” The law says the exemption applies only in case of “a clearly unwarranted invasion of personal privacy.”

The attorney general noted a similar case prompted by the city's refusal to let Moore see similar records, and stressed that “the interest of the public in ensuring that the Department has and fairly enforces uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.” He noted that the city had “generic billing information without individual customer names which could be used to verify billing methodology and calculations.”

Child-abuse records were opened in 1990s

2011-12-05T12:27:00.002-05:00

Though it made big, breaking news last week, releasing state records about severe child abuse isn't new in Kentucky, writes Joseph Gerth, right, in a column in The Courier-Journal.

"During Gov. Brereton Jones' term in office from 1991-1995, the state social-work agency released child-fatality reports on its own," he writes. "That came after an earlier tragic death of a child in Wayne County who was beaten to death by his stepfather after numerous contacts with state social workers."

Gerth's column comes after last Tuesday's announcement by Gov. Steve Beshear that he ordered the Cabinet for Health and Family Services to release records pertaining to children who have been killed or nearly killed as a result of abuse or neglect. "Transparency will be the new rule," he said.

Gerth said Beshear "finally gave in to mounting pressure from the media, an angry judge and frustrated legislators to release the records involving the death of a Wayne County toddler who drank drain cleaner that was allegedly being used to produce methamphetamine," Gerth writes. The C-J and the Lexington Herald-Leader had long been suing the cabinet to release documentation pertaining to the case and Franklin Circuit Judge Phillip Shepherd had twice ruled the cabinet do so.

In the 1990s, it was then-cabinet Secretary Masten Childers II who ordered that child-fatality records be released. "The reports showed that the agency wasn't doing its job and that low-paid social workers were stretched thin and handling too many cases," Gerth writes. "Jones ultimately called for raising the pay for the lowest-paid social workers ... and he called for hiring 60 more social workers across the state. Could it have been that Childers believed more in openness than the current secretary, Janie Miller?" (Read more)

Whitley County clerk ignores open records decision

2011-12-02T11:55:00.007-05:00

The Whitley County Clerk has decided to ignore an opinion of the Attorney General's office that she is charging too much for copies and that record-seekers are within the law when using their own scanners to make copies.

Whitley County Clerk Kay Schwartz told the News Journal that she is posting her own rules, setting a fee of 50 cents per page for record copying and barring the use of hand-held scanners. Both practices violate an attorney general's opinion issued Oct. 13.

Allison Martin, communications director for Kentucky Attorney General Jack Conway, told the News Journal that since the ruling wasn't appealed within 30 days, it has the force of law.

"The Whitley County Clerk is in violation of the law by charging 50 cents per copy," Martin said.

Clerk Schwartz is the president of the Kentucky County Clerks Association. She said the association will try to convince the legislature to set the copying fee at 50 cents per page. The current allowable fee is 10 cents per page. In the meantime, unless her practice is challenged in court, she is continuing to defy the law.

Read the News Journal story here.

Small, weekly newspaper beats stonewalling state agency in case of adopted child's murder

2011-11-20T17:55:00.001-05:00

When a 9-year-old girl was found beaten to death and her adoptive brother was charged with murder, the local newspaper wanted to know what the state child-welfare agency had done, or not done, with the family in the four years Amy Dye, left, had been placed there. The Kentucky Cabinet for Families and Children stonewalled the Todd County Standard, but the small, weekly newspaper fought in court and a judge found that the agency had violated the state open-records law -- and prevented further stonewalling on appeal by putting the records in his ruling.

The records paint "deplorable picture of what happens when those who are assigned to protect a child fail," Editor-Publisher Ryan Craig wrote in his Nov. 9 paper. Franklin Circuit Judge Philip Shepherd of Frankfort "said that Amy was put in the Dye home despite there being a 'substantiated' incident of child abuse prior to her placement" and the case is an "example of the 'potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny'," Craig wrote.

In his Nov. 16 edition, Craig reported that a closer look at the records showed "that the cabinet made a choice within a few days of Amy Dye’s death and a day after the Standard filed an open records request to declare the scope of the investigation in a way that would keep the files from becoming public," by classifying its probe as a "neglect investigation" instead of a "fatality investigation," which by law must be public. His story noted that "Officials with the Cabinet delayed nearly two weeks — violating open-records laws — before even responding to the Standard’s initial request for records. Then when the Standard received a response, it was told there were no files whatsoever on Amy Dye."

The Standard is not online, but we have posted PDFs of its Nov. 9 front and jump pages here and here and its Nov. 16 pages here and here. The photo of Amy is from The Courier-Journal of Louisville, which reported on the case in detail today. For the story by Deborah Yetter, go here.

Legislative committee may review transparency of state cabinet in child abuse death records

2011-11-18T21:03:00.008-05:00

The co-chairs of the legislative committee that oversees the state's health and welfare services say they hope to hold a hearing in December about the state's handling of records regarding deaths and near deaths of kids in Kentucky's child-welfare system.

The Lexington Herald-Leader reported Nov. 17 that Democratic Rep. Tom Burch and Republican Sen. Julie Denton, both of Louisville, said they want to hold hearings on whether the Cabinet for Health and Family Services is being transparent in the way it reports deaths and near-deaths of children under its supervision.

The cabinet has lost three open-records lawsuits recently because of its failure to make public its records in the deaths of several children under the cabinet's supervision.

Read more of the story.

Social worker who handled case of murdered child resigns after another child's death

2011-11-18T20:28:00.006-05:00

A social worker for the state's Cabinet for Health and Family Services resigned in October before she was fired in the aftermath of a child's death.

The Lexington Herald-Leader reported Nov. 18 that supervisors wanted to fire the employee, citing claims that she didn't fully investigate a June 14 report about a three-year-old girl's arm being broken. According to state records, the supervisors believed the social worker failed to properly investigate allegations of physical abuse of a Christian County girl who died less than a month later. Her father has been charged with murdering her.

The girl, Alayna Adair, died July 2 after being taken to a Nashville hospital. Her father, Charles T. Morris, 22, is charged with murder.

The same social worker, according to state records, also helped handle reports of physical abuse of Amythz Dye, the nine-year-old Todd County girl beaten to death by her adoptive brother in February. Franklin Circuit Judge Phillip Shepherd ruled earlier this month that the state's records regarding her death must be made public. The Todd County Standard filed the lawsuit to obtain access to the records. To read about the judge's ruling in the case, read a report at KyForward.com.

According to the Lexington Herald-Leader, a spokeswoman for Attorney General Jack Conway said the office has been notified of the allegations against the social worker. The spokeswoman would neither confirm nor deny the existence of an investigation. (Read more)

UK hosts annual First Amendment Celebration

2011-11-13T09:46:00.002-05:00

An award-winning investigative reporter, author and journalism professor will deliver the annual State of the First Amendment Address at the University of Kentucky Tuesday, Nov. 15.

Mark Feldstein, author of "Poisoning the Press," is the featured speaker at the annual First Amendment Celebration sponsored by the Scripps Howard First Amendment Center and the UK School of Journalism and Telecommunications.

Feldstein worked as an on-air investigative correspondent at CNN, ABC News, and several local television stations during a 20-year career. For his work, he won the Edward R. Murrow broadcasting prize and two George Foster Peabody medallions.

And for his work, he was beaten up in the United States, detained and censored by government authorities in Egypt, and escorted out of Haiti under armed guard. His exposes led to resignations, firings, multimillion-dollar fines and prison terms.

Feldstein’s 2010 book, "Poisoning The Press," documents the bitter relationship between Jack Anderson, a journalist whose column damaged and destroyed political careers, and President Richard Nixon. Feldstein was once an intern for Anderson, whose column, "Washington Merry Go-Round," was immensely popular. The book has received widespread critical acclaim and earned top academic awards for research.

Feldstein is a graduate of Harvard and earned his doctorate at the University of North Carolina at Chapel Hill. He is the Richard Eaton Professor of Broadcast Journalism at the University of Maryland.

Feldstein has been published in numerous peer-reviewed journals; he has also won awards for his scholarship from the American Journalism Historians Association and other academic organizations. He is widely quoted as a media analyst by leading news outlets in the United States and abroad, and has testified as an expert witness on First Amendment issues in court cases and before Congress.

The State of the First Amendment Address will be given in Room 106 of the White Hall Classroom Building. The program begins at 5:30 p.m., Tuesday, Nov. 15, and is free and open to the public.

At the celebration, Al Smith will be presented with the annual James Madison Award for Service to the First Amendment. Smith, a Kentucky editor and publisher, founded and hosted Kentucky Educational Television’s “Comment on Kentucky” program, a weekly discussion of public affairs.

The Scripps Howard First Amendment Center, housed in the university’s School of Journalism and Telecommunications, seeks to promote understanding of the First Amendment among citizens of Kentucky, to advocate for First Amendment rights in the Commonwealth and nationally, and to produce internationally recognized scholarship concerning the First Amendment and its related freedoms.

Al Smith to receive James Madison Award

2011-11-13T09:34:00.006-05:00

Al Smith, who created "Comment on Kentucky," a statewide forum that has fostered public discussion of Kentucky policy and politics, has been chosen the 2011 recipient of the James Madison Award for service to the First Amendment.

Smith will receive the award on Tuesday, Nov. 15, at the annual First Amendment Celebration held by the Scripps Howard First Amendment Center and the University of Kentucky School of Journalism and Telecommunications.

The award is presented annually to a Kentuckian who has made a significant contribution to the values embodied in the First Amendment's guarantee of freedom of speech and of the press. During his distinguished career, Smith was a tireless advocate for open government as a newspaper editor, publisher and industry leader, and television program producer.

“Throughout his distinguished career, Al Smith has promoted and fought for the values that embody our treasured freedoms of expression," Mike Farrell, director of the Scripps Howard First Amendment Center, said. "His life’s work, as a faithful steward of the First Amendment, has enlightened citizens, invigorated our public discourse and held the powerful accountable. Kentucky has been blessed because Al Smith made the state his home and because journalism was his calling.”

"Comment on Kentucky,” a public affairs program broadcast on Kentucky Educational Television each Friday, debuted in November 1974. Smith was its host, discussing with a panel that included journalists, professors and other experts important issues to Kentucky, until he retired 33 years later.

Smith, of Lexington, is the author of a memoir, Wordsmith: My Life in Journalism, which was published this month.

The Madison Award was created by the Scripps Howard First Amendment Center in 2006 and is awarded annually to a Kentuckian who has made significant contributions to the efforts of a free press or freedom of speech. Smith is the sixth recipient.

The Madison Award will be presented at 5:30 p.m. on Nov. 15. Mark Feldstein, former investigative reporter for CNN and ABC News, will then deliver the State of the First Amendment address. The event is free and open to the public in Room 106 of the White Hall Classroom Building on the UK campus.

Greenup sheriff fails to answer records request; that's ruled a violation of state law

2011-11-13T00:04:00.004-05:00

The Greenup County Sheriff's Department has violated the Kentucky Open Records Law by failing to respond to a request for records.

On September 16, 2011, John M. Smith submitted an open records request to the sheriff’s department for evidence log sheets relating to a specific case. The department did not respond to Mr. Smith’s request, and on October 3 Mr. Smith filed an appeal to the Office of the Attorney General. The sheriff’s department had yet to respond to Mr. Smith’s request for evidence log sheets or this appeal when the attorney general issued its opinion on Nov. 3.

That inaction violates the Open Records Law, which reads "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision."

The attorney general's opinion stated public agencies such as the sheriff's department are not permitted to elect a course of inaction and ordered the Greenup County Sheriff’s Department to provide Mr. Smith with copies of his request unless the department can provide him, in writing an acceptable legal basis to deny the requests.

UK's refusal to release cancer registry data violates Open Records Act

2011-11-12T23:59:00.006-05:00

The University of Kentucky violated the Kentucky Open Records Act in denying Dr. James W. Coleman’s August 1, 2011, request for “statistical information on female breast cancers in Jefferson County,” according to a recent opinion of the Attorney General's Office.

In response to the request, Official Records Custodian Frank Butler advised Dr. Coleman that the “Kentucky Cancer Registry does not maintain the data you have requested in the format you have requested, he [Dr. Coleman] may apply for a dataset as described on the…website, and that KCR records are confidential by statute.”

The attorney general found UK’s reasons for the denial flawed. The opinion, dated Nov. 1, stated that, a “database is unquestionably a ‘public record’ as that term is defined in the Open Records Law. Dr. Coleman’s request sought information from the Kentucky Cancer Registry, which UK maintains by incidence and mortality rates for more that 70 cancer sites in the state.

The university’s first ground for the denial was that it could not sort the data by zip code and thus could not respond to the request. The attorney general rejected this argument because “UK is not statutorily required to tailor the format of its existing database to conform to the parameters of a request submitted under the Act; however, the alternative is generally to provide a requester with a copy of the entire database after those fields of information for which statutory protection exists, if any, have been redacted.”

The second reason was that UK told Dr. Coleman he could apply for a data set online. This argument was rejected by the attorney general because of KRS 61.874(3), which states that “if a public agency is asked to produced a record in non-standardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.” While this provision is discretionary the other option is to release the entire database. If UK did not want to sort the information requested by zip code then it was supposed to release the whole database in order to let Dr. Coleman sort it himself.

The third reason UK cited was that all cancer registry data is confidential under state law. The attorney general's opinion rejected this argument as well, restating what it had held in a 2004 opinion, the “prohibition on disclosure of data is not … absolute, but is instead confined to data identifying any person whose condition or treatment has been reported to the (Kentucky Cancer Registry.)”

Since the attorney general rejected all of the university’s reasons for the denial, and the university could not provide more detailed information on how the database is maintained, the attorney general found that UK did violate the Open Records Act by refusing to provide Dr. Coleman with access to responsive data that did not describe or identify a particular person. An Open Records Opinion of the Office of Attorney General has the force of law unless appealed to circuit court.

Butler County loses another Open Meetings appeal

2011-11-12T23:51:00.007-05:00

Butler County Fiscal Court has violated the Open Meetings Law again; this time, the court failed to distribute an agenda to fiscal court members for its September 14 special meeting 24 hours before the meeting.

The Open Meetings Law requires public agencies to deliver a special meeting notice consisting of the date, time, and place of the special meeting and the agenda for the special meeting at least 24 hours before a special meeting.

In this case, fiscal court members received a copy of the agenda minutes before the meeting began. The fiscal court argued that this was a mere technical violation because there was reference to the special meeting on the September 12th regular meeting agenda. The fiscal court, through County Attorney Richard J. Deye, reasoned that this reference gave adequate notice of when the special meeting would be and what its purpose was.

In its response issued Nov. 1, the Office of the Attorney General restated two important principles:

"The [Open Meetings] Act does not recognize a class of violations of lesser gravity than the remaining violations and therefore capable of being dismissed as merely “technical.”

“The failure to comply with the strict letter of the law in conducting meetings of a public agency violated the public good.”

In a letter to the attorney general, County Attorney Deye argued, “[t]he only provision of the Open Meetings Law that was violated is that the magistrates did not receive a piece of paper twenty-four hours in advance . . . . One must struggle to discern how the actions of the Butler County Fiscal Court compromised the citizens of Butler County.”

The attorney general's office answered that claim in the opinion, "Neither this office nor the Butler County Fiscal Court need 'struggle to discern' how the interests of the citizens of Butler County were compromised by the Fiscal Court’s failure to comply with the express requirements of the Open Meetings Law. The law recognizes harm any time an agency acts in derogation of these requirements regardless of how inconsequential its actions may appear to the agency."

The opinion also noted that the law does not empower the attorney general to impose fines or negate actions because of Open Meetings Law violations, but the law does allow a circuit court judge to impose penalties.

Broad request for cell phone information is denied

2011-11-12T23:37:00.006-05:00

The Lexington-Fayette Urban County Government Division of Police properly denied a request for copies of cell phone records, according to an opinion of the attorney general's office.

The documents sought pertained "to the ability of law enforcement officers to obtain records from cell phone companies that reveal the past or present travels of cell phone users” over a two and a half year period.

The division reasoned that this request was overly burdensome as it could not accurately estimate the number of records encompassed by the request and that it would cause division personnel to manually search more than a thousand case files and more than a million e-mails.

The attorney general's opinion on Nov. 4 agreed with the division and stated that the scope of the request “represents an impediment to access and that the volume of record implicated by the request magnifies the possibility of harm to open investigation/enforcement action through inadvertent disclosure of protected matter.”

Tax payments plans deemed open records

2011-11-12T23:19:00.006-05:00

The Attorney General's Office ruled on Oct. 31 against the Marshall County Attorney’s failure to disclose records relating to delinquent property tax payment agreement plans.

Marshall County Attorney Jeffrey G. Edwards denied a citizen’s request to view the records based on the fact that these tax payment plans contain confidential information about the taxpayer and the agreements were not fully discharged and therefore preliminary.

The county attorney said he relied upon exemptions in the Open Records that protect preliminary drafts and public records made confidential by the General Assembly, citing the privacy of tax returns.

The attorney general's office disagreed with Mr. Edward’s application of the law to tax payment agreement plans. The opinion, which has the force of law unless appealed to circuit court, explained that “these prohibitions do not extend to any matter properly entered upon any assessment record, or in any way made a matter of public record .... and therefore, the payment plans do not afford protection under these statues nor can they be considered preliminary drafts.

Given that delinquent property taxes become a public record when the county clerk records a lien for the amount owed and publishes a notice of all delinquencies in the newspaper, the attorney general's opinion explained that delinquent taxpayers therefore do not have a reasonable expectation of confidentiality in the information contained in the payment agreement.

Additionally, the county attorney’s authority to make these payment agreements is a matter of public interest; the public has a right to monitor the operation of the government, which clearly encompasses the county attorney’s collection duties.

State cabinet loses another open records lawsuit

2011-11-08T18:26:00.009-05:00

The state Cabinet for Health and Family Services came under a withering attack from a state judge, who said the cabinet turned a blind eye to repeated reports a nine-year-old girl was being abused at home.

Franklin Circuit Court Judge Phillip Shepherd ruled Nov. 7 the cabinet must release its records involving Amythz Dye, a nine-year-old who, according to court records, was beaten to death by her adoptive brother. Garrett Dye, 17, pleaded guilty on Oct. 21 in Todd Circuit Court to murdering her on Feb. 4 by beating her in the head with a jack handle. When she was killed, Amythz was shoveling gravel as punishment for stealing pudding and juice from a friend’s lunch box at school, according to Shepherd’s order.

Garrett Dye, who was prosecuted as an adult, will be sentenced Nov. 23.

"This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny," Judge Shepherd wrote. In his decision, he notes the cabinet received eight reports that the girl had suffered injuries that were suspicious.

"In this case, an innocent nine-year-old girl was brutally beaten to death after enduring months of physical and emotional abuse in a home approved by the Commonwealth of Kentucky for her adoption, notwithstanding a substantiated incident of child abuse in that home prior to her placement there and notwithstanding repeated reports of abuse and neglect later made by school officials to the Cabinet for Health and Family Services prior to her murder."

It is the third time, the second in four days, that Judge Shepherd has ruled for public inspection of documents involving the death of children under the supervision of the cabinet. In all three cases, the cabinet had refused open records requests for the records, arguing federal law required it to maintain confidential records.

But Judge Shepherd ruled, citing congressional records, that the federal legislature never intended to allow state governments to protect their actions from public scrutiny in such cases.

“The Open Records Act is the only method available by which the public and the legislature can obtain information regarding the systematic breakdown of our child protective services that contributed so directly to this child’s death,” Shepherd wrote.

The lawsuit was filed by the Todd County Standard. The weekly newspaper sought records which the cabinet initially indicated did not exist. For the paper's story, click here. The Courier-Journal's story is here.

Hospital appeals attorney general's ruling

2011-11-08T15:51:00.006-05:00

University Hospital of Louisville has filed a lawsuit in Jefferson County Circuit Court to overturn an open records opinion of Attorney General Jack Conway that the hospital is a public agency under the Kentucky Open Records Act.

The attorney general's opinion issued Oct. 5 declared University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." The university has argued University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal.

Conway's ruling could affect the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System. If the court upholds the attorney general's opinion, the state will have a say in the merger. The ruling means the documents pertaining to the merger itself would have to be made public.

Because it deals with an open-records issue, Conway's opinion has the force of law unless overturned in court, which resulted in the hospital's lawsuit.

According to the Courier-Journal, University Hospital is Louisville's safety-net hospital for the poor. It received $61 million from the state and $7 million from the city for indigent care last year.

The lawsuit argues that the hospital is a private, nonprofit corporation because it is controlled by a board of directors, not the University of Louisville.

For more information, read the Courier-Journal's story. Read the Open Government Blog entry about Attorney General Conway's opinion here.

Judge rules against state, cites 'culture of secrecy' in ruling opening records in child abuse deaths

2011-11-04T04:47:00.027-04:00

A state judge has ruled for the second time in 18 months against the efforts of the state Cabinet for Health and Family Services to keep records of the deaths of children in its care hidden from public inspection.

In a stinging rebuke, Franklin Circuit Judge Phillip Shepherd, right, blasted the cabinet for refusing to follow a decision he issued in 2010 on the same issue.

"The Court must conclude that the cabinet is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law," Shepherd wrote in an opinion filed Nov. 3.

The cabinet argued, as it did in the previous lawsuit over records of a child in its care, that federal law keeps it from opening the records. Shepherd rejected that argument for a second time and said both state and federal laws include an exception to that confidentiality when a child dies or nearly dies while under state supervision.

Shepherd cited passages from records of the U.S. Senate and House establishing that it was never the intent of Congress to allow state governments to protect their actions from public scrutiny in such cases.

"The Cabinet simply cannot use the defense of privacy to shield itself from the explicit statutory mandate designed to allow public accountability for agency actions or omissions in the most egregious of cases that result in a child fatality or near fatality," Shepherd wrote.

The Lexington Herald-Leader and The Courier-Journal filed the lawsuit after the cabinet refused to give reporters access to records concerning the deaths or near-deaths of abused and neglected children under its supervision.

Jon Fleischaker, an attorney for The Courier-Journal, called Shepherd's ruling a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse.

“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker told the Louisville newspaper for its story. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”

Fleischaker called on Gov. Steve Beshear to intervene to ensure that the cabinet complies with Shepherd's ruling.

The judge gave the cabinet 10 days to negotiate with the newspapers over release of the records, recognizing the cabinet might need time to gather and copy the records it must hand over. If the parties can't agree, the judge will hold a hearing. He left open the question of requiring the state to reimburse the newspapers for legal expenses in the case.

Cabinet officials told the Herald-Leader Thursday that they have not decided whether they will take the case to the Court of Appeals. Cabinet attorneys believe the ruling could affect "incidences of child fatalities or near-fatalities that include no prior contact with the cabinet or the court system," said Jill Midkiff, a spokeswoman for the cabinet.

The Courier-Journal filed an open records request with the cabinet seeking records of its investigations into the deaths of children under its care between July 1, 2009, and Dec. 17, 2010, as well as records concerning the deaths of two children in 2008. The Herald-Leader filed for records for the period July 1, 2009, to June 30, 2010. When the cabinet denied their requests, the newspapers filed suit in January.

The lawsuit was almost identical to a previous suit in which Shepherd ruled in May 2010 against the cabinet. In that case, he ordered the cabinet to release records related to the death of Kayden Daniels, right, a 20-month-old Wayne County boy who died after ingesting poison. Both the child and his mother, then 14, were under supervision of the cabinet.

A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

Read more in the Herald-Leader and in the The Courier-Journal. Read Judge Shepherd's ruling here. Read about Judge Shepherd's decision in 2010 here.

Animal-care panel cancels after Humane Society asserts violation of open-meetings law

2011-10-28T00:16:00.001-04:00

A new panel given the task of drafting standards for care of farm animals canceled its scheduled meeting yesterday, apparently because the Humane Society of the United States alleged Wednesday that the Kentucky Livestock Care Standards Commission was violating the Kentucky Open Meetings Act.

The cancellation was announced by the state Department of Agriculture, which later "said the meeting was canceled at the request of Agriculture Commissioner Richie Farmer," Janet Patton reports for the Lexington Herald-Leader. The statement said, "Although he believes that the commission has followed the Open Meetings Act, he wants to make certain that everyone concerned with the issues the commission is working on has ample opportunity to make their opinions heard. Therefore, he believes that the public interest is best served by postponing today's meeting for several days to give all parties concerned enough time to plan for the session."

"The Humane Society alleged that the board has been acting in secret to prevent public involvement and "asked that the commission take no further action on recommendations made by species-specific groups or other advisory panels until the panels hold open meetings to consider all matters previously discussed in private, Patton writes. "Agriculture Department spokesman Bill Clary said Wednesday that the commission thinks it has complied with the state's Open Meetings Act." (Read more)

Parks board defends meeting behind closed doors

2011-10-13T10:38:00.006-04:00

The Winchester Sun has asked Attorney General Jack Conway to review an executive session the Winchester-Clark County Parks and Recreation Board held before deciding to allow alcohol sales in Lykins Park for a concert.

In a letter responding to the Sun's challenge, the parks board said it had received several specific legal threats about allowing alcohol sales in Lykins Park. Under the Kentucky Open Meetings Act, public bodies, including the parks board, are required to conduct all of their business in an open session except when certain issues arise. Threatened or pending litigation is one of those exceptions in the law, and that justified a closed discussion of the matter during a meeting, according to a letter sent to the Kentucky Attorney General’s office by Clark County Attorney Brian Thomas.

The parks board voted 4-2 to allow the Winchester Fraternal Order of Police to sell beer during the John Michael Montgomery Country-Fest, despite an existing policy that prohibits alcohol in public parks in Clark County. The vote in public session on Sept. 12 followed the discussion in executive session.

In its Sept. 21 appeal to the attorney general, The Sun argued that the possibility of litigation was “remote” and therefore the exemption did not apply. Thomas responded for the park board that several people had threatened to sue the board if the waiver were granted.

The attorney general's office has not issued its opinion in the matter. That opinion has the force of law unless it is appealed to circuit court.

Read the Sun's story here.

Agency is pressured to re-post database of doctors' malpractice and disciplinary cases

2011-10-11T01:04:00.000-04:00

U.S. Sen. Charles Grassley has joined journalists, academic researchers and consumer groups in calling on the Health Resources and Services Administration to put back online the National Practitioner Data Bank, a database of malpractice and disciplinary cases against doctors.

"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"

For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.

The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.

Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."

Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."

The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)

Attorney general rules Louisville's University Hospital is a public institution

2011-10-07T07:47:00.000-04:00

Louisville's University Hospital is a public institution, not a private one, which means the state gets a say about the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System, Attorney General Jack Conway said in an open-records decision Wednesday.

Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.

"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)

The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.

AG declares Pike utility's records open

2011-09-16T19:43:00.001-04:00

The records of a controversial utility in Eastern Kentucky are covered by the state Open Records Act "because two public agencies supply at least 25 percent of the funds it expends in the state," The Associated Press reports. "Deputy Attorney General Patrick Hughes wrote that Utility Management Group, based in Pike County, must turn over records requested by the Pike [County] Fiscal Court."

Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.

AG again says Health and Family Services Cabinet violated Open Records Act

2011-09-15T19:54:00.000-04:00

The attorney general's office has again cited the Cabinet for Health and Family and Services for failing to following the dictates of the Kentucky Open Records Act. This is the second time this year the attorney general's office has ruled that the cabinet violated the law in response to a request from Elizabeth Coleman, a cabinet employee.

In the Sept. 6 opinion, which has the force of law unless overruled by a state circuit court judge, Attorney General Jack Conway held the cabinet "committed both procedural and substantive violations" by failing to provide an employee with timely access to the records she requested.

Coleman filed a grievance with the cabinet June 10. On July 15, she filed a request under the provisions of the Open Records Act for records related to the grievance. On July 19, the cabinet replied it could not meet the three-day deadline required under the law but expected to fulfill her request by July 27. According to the attorney general's opinion, when Coleman heard no more from the cabinet by Aug. 3, she appealed to the attorney general, an option available to anyone who is denied records.

The cabinet told the attorney general's office it had replied on July 21. Coleman denies receiving a response before she filed the appeal on Aug. 3. In either case, the opinion said the cabinet failed to provide Coleman all the records she was entitled to review. The document she received was a single record indicating the disposition of her complaint, lacking any of the notes or interviews of those involved in reviewing her grievance.

In an opinion issued in April in an almost identical appeal, the attorney general's office ruled "The information to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from the grievance she filed. She is entitled to inspect and copy “any record,” including investigator’s notes, that relate to the investigation. The cabinet’s refusal to allow her access to these records constituted a violation of the Open Records Act."

The cabinet can appeal the ruling to Franklin Circuit Court within 30 days to keep it from becoming final.

Foes of law letting optometrists use lasers may sue, alleging violation of Open Meetings Act

2011-09-15T19:50:00.004-04:00

Although ophthalmologists and the Kentucky Medical Association strongly objected, a legislative committee appoved regulations Tuesday that will allow optometrists to perform some eye surgeries using lasers.

In answer, opponents say "they might file legal action against theKentucky Board of Optometric Examiners, which drafted the regulations, for failing to comply with the state's Open Meetings Act," reports Beth Musgrave of the Lexington Herald-Leader.

The regulations, passed under Senate Bill 110 of this year's General Assembly, now go to another legislative panel. If they pass, optometrists may be allowed to perform the surgeries by year's end. The bill has been cause for controversy, in large part because it passed through the legislature in a swift 12 days. Oklahoma is the only other state that gives similar operating privileges to optometrists.

Ophtalmologists said Tuesday the optometric board "used a task force appointed by the state optometric association, a trade group, to develop the regulations, and those meetings were held in secret with no public input," Musgrave reports. Legislators and optometrists disagreed, saying public comment was allowed at an open meeting in July, and the regulations were altered after task force members took the comments into consideration. (Read more)

Hopkinsville paper publishes public officials' pay, makes readers aware of records

2011-09-13T22:36:00.001-04:00

Many Kentuckians are not aware they can file open-records requests to obtain information they are entitled to see, such as salaries of public employees, reports Dave Boucher of the Kentucky New Era in Hopkinsville.

In a recent weekend issue of the paper (Aug. 27-28), Boucher reported that he filed 20 records requests to acquire information on city and county employee salaries. Al Cross, director of the Institute for Rural Journalism and Community Issues, told Boucher that public officials in rural places "can feel like a request to know their salary is an invasion of privacy," a feeling that stems from rural community culture in which a public office can be regarded as a private possession.

People simply don't understand what types of information they are entitled to see, Cross told Boucher. According to the Kentucky Open Records Act, any agency that receives at least 25 percent of its funding from public sources is subject to a request, Boucher writes. There are some exemptions, including "unwarranted invasion of personal privacy" and classified information, but salaries are not on that list. (Read more)

AG rules Carter County Fiscal Court violated open meetings law by restricting recording

2011-09-12T09:13:00.010-04:00

A Carter County Fiscal Court's resolution to restrict cameras and video recording of fiscal court meetings to the last pew of the fiscal court room" was overturned Thursday by Attorney General Jack Conway, Katie Brandenburg of The Independent in Ashland reports. Conway called the resolution "unenforceable and inimical to the public good."

The resolution was passed Aug. 9 after the court's request for "Mignon Colley, Carter County Republican chairwoman, to move her video camera," Brandenburg reports. After an unresolved complaint Colley made to Carter County Judge-Executive Charles Wallace, Colley filed an appeal with the attorney general's office.

Conway ruled, "The Carter County Fiscal Court cannot, by ordinance, executive order, or resolution, abridge the statutorily invested right to videotape public meetings." This decision is not "just an opinion" as Wallace told Brandenburg. The attorney general "issues legally binding decisions in disputes under the open records and meeting laws," the attorney general's website reports. The court must file an appeal in circuit court to contest this decision. (Read more)

C-J, ACLU ask Conway to decide if Louisville's University Hospital is a public agency

2011-09-10T00:08:00.005-04:00

Attorney General Jack Conway has been asked to decide "whether University Hospital is a public institution — an issue in the controversial plan to merge the University of Louisville’s main teaching hospital with two other health-care systems," Patrick Howington of The Courier-Journal reports.

ACLU of Kentucky and The Courier-Journal have appealed denials of open-records requests they made to University Medical Center Inc., which does business as University Hospital. "(University Medical Center) turned down both requests on grounds that it is a nonprofit corporation rather than a public agency and therefore isn’t subject to the act," Howington writes. An attorney general’s opinion on open records or open meetings has the force of law unless overturned in court.

News outlets are less inclined to take legal action for open government, but citizens are becoming more active, national survey finds

2011-08-27T18:41:00.005-04:00

"While a lack of resources has made news organizations increasingly less inclined to file freedom-of-information lawsuits, citizens have a growing interest in government transparency and are becoming more active in asserting their right to government information," the Media Law Resource Center and the National Freedom of Information Coalition report after an informal, online survey conducted Aug. 9-15. It confirmed continuation of a trend first noticed in 2009.

"If ordinary citizens are becoming more aware of their access rights, and more assertive regarding them, it is indeed a reason to be gratified," said Ken Bunting, executive director of NFOIC. "However, if news organizations are trending toward being less gung-ho in an area once regarded as a matter of responsibility and stewardship, there is the frightening potential that journalism could suffer, as could the health of our democracy." For the NFOIC release and links to the study documents, click here.

After the 2009 survey, the John S. and James L. Knight Foundation created the Knight FOI Fund to pay initial expenses and fees for open-government lawsuits that the fund considers worthwhile.

U of L physicians' group drops open-records appeal, but C-J may still not get records

2011-08-24T09:34:00.006-04:00

An organization representing University of Louisville doctors who were trying to keep their financial records private dropped its lawsuit appealing an adverse open-records decision Tuesday. In April, Attorney General Jack Conway ruled that University of Louisville Physicians Inc. is a public agency and, as such, is subject to the Kentucky Open Records Act. Conway's opinion was requested by The Courier-Journal.

Last November, state Auditor Crit Luallen released a scathing audit of Passport, which provides managed care for 165,000 Medicaid patients in Jefferson and 15 surrounding counties. The audit accused the organization of "wasteful spending, conflicts of interest and the questionable transfer of $30 million in Medicaid funds to organizations represented on Passport's board, including University Physician Associates," The Courier-Journal's Tom Loftus reports. Because of the audit, the newspaper asked for financial records from University Physicians Associates and University of Louisville Physicians Inc., which is the successor to University Physicians Associates. They refused to hand over the records, and Conway's decision followed.

Though the attorney general determined the organization should be subject to the open-records law, and the doctors' lawsuit has been dismissed, giving Conway's opinion the force of law, The Courier-Journal may not receive the records it has asked for. In its notice of dismissal, University of Louisville Physicians stated it could change "its structure and function in the future which it believes may alter its status as a public agency."

"We are still forming our final structure and function," Diane Patridge, ULP's vice president for marketing and communications, told Loftus. "Once we're up and fully established we may appeal this current determination." Curiously, "Partridge also said that ULP has no records to release to the newspaper as a result of the dismissal of the case," because it has no employees – even though it was incorporated in March 2010. "She said University Physicians Associates . . . has handled all financial matters and paperwork for ULP to date," Loftus reports.

“This case is another piece of a puzzle,” Courier-Journal attorney Jon Fleischaker said. “It’s another step to try to make sure there’s more transparency at the University of Louisville School of Medicine and University Medical Center.” (Read more)

"Sounds like a shell game with shell corporations," said Al Cross, director of the Institute for Rural Journalism and Community Issues and associate extension professor of journalism at the University of Kentucky.

Series on questionable disability payments in Lexington led to closure of records involved

2011-08-22T19:05:00.003-04:00

Sometimes journalism based on public records prompts government officials to hide the records to prevent further journalism about them.

In 2005, the Lexington Herald-Leader revealed "a high rate of disability pensions among Lexington police officers and firefighters. The stories named pensioners with allegedly severe physical ailments who remained competitive athletes or who returned to the public payroll for new jobs similar to their old ones," John Cheves writes for the newspaper.

"Change came almost immediately. But not to the system doling out millions of dollars in disability pensions every year. Rather, the public no longer has access to many city records the newspaper used to report its stories. Police and fire unions successfully lobbied the General Assembly in 2006 to exempt those documents from the Kentucky Open Records Act." (Read more)

Kentucky looks like only state that denies access to recordings made by police-cruiser cameras

2011-08-05T15:55:00.004-04:00

Kentucky appears to be the only state that denies public access to recordings made by cameras in police cruisers. Scott Wartman of The Kentucky Enquirer discovered that this week as he followed up on the guilty plea by Covington City Commissioner Steve Frank for driving under the influence.

"Open-records laws across the country compiled by the Reporters Committee for Freedom of the Press show that only in Kentucky is the public not allowed to view video of DUI traffic stops," Wartman writes. "First Amendment experts say they don't know of any other state with an exemption for DUI videos," and some think the law "raises constitutional issues and violates the public's right to know." Making cruiser recordings available "serves as an important check on police abuse," David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, told Wartman.

The law was passed in 1984 with major changes to Kentucky's DUI law. The sponsor of the bill, then Sen. Henry Lackey, told Wartman that he didn't know why. "I don't remember anyone bringing that issue up," said Lackey, now deputy state aviation commissioner. Jon Fleischaker, attorney for the Kentucky Press Association, told Wartman, "Although I don't know for certain, my guess is it was done out of some misguided sense of privacy and some concern for how the thing could be used." He said the law could be challenged on constitutional grounds if a recording is used in a case. "Let's say I'm a defendant who is wrongfully accused and I want to show the public the tape," he said. "Why shouldn't I be able to do that?"

Judge closes evidentiary hearing in Todd murder case; newspaper seeking child-welfare records

2011-07-24T20:47:00.012-04:00

Todd Circuit Judge Tyler Gill has sealed the case record and barred journalists from a continuing hearing in the murder case of a 9-year-old girl, "fearing the disclosure of evidence that jurors won’t be allowed to hear at trial," Nick Tabor reports from Elkton for the Kentucky New Era in Hopkinsville.

Tabor reports that state police say Amy Dye's 17-year-old cousin and adoptive brother, Garrett Dye, who is being tried as an adult, confessed to killing her, but his attorney says the confession was coerced and has asked the judge to suppress it. The hearing lasted all day Friday and is to continue Monday. Gill told the five reporters who wanted to cover the hearing, “I can’t do anything to intentionally sabotage the defendant’s right to a fair trial.”

Gill also sealed the court record until after the trial, which is scheduled for November. The defense "requested a mental evaluation to determine whether Dye was eligible to plead insanity and competent to stand trial," Tabor reported. "The evaluation results are confidential, and so far attorneys have not scheduled a hearing for Gill to rule on Dye’s competency." (Read more)

The case has raised other open-government issues. The weekly Todd County Standard asked the state Cabinet for Health and Family Services for its file on the case and won an appeal at the attorney general's office when the cabinet said it had no such records and refused the request of the office for a confidential review of records.

The cabinet appealed Franklin Circuit Court's award of costs and attorneys' fees but not the substance of the ruling, which cited an earlier opinion of the court that the cabinet must release records of a case where child abuse or neglect resulted in a fatality or near fatality. "The cabinet had substantiated allegations of abuse or neglect involving Amy and had imposed certain conditions upon the family," the Standard said in its lawsuit to force the cabinet to release the records.

The Standard asked Todd County Dispatch for access to logs and recordings of calls it received on the night the killing was reported, but the agency denied the request, saying disclosure could compromise the investigation. The attorney general's office upheld the denial, saying in an opinion written by Assistant Attorney General Ryan Halloran that the agency had demonstrated that "disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action."

Louisville school-bus fight tape is open record

2011-07-21T00:31:00.007-04:00

Attorney General Jack Conway has ruled that a videotape of an assault on a Jefferson County Public Schools bus driver by a parent is a public record and should be released to Louisville television station WLKY.

An opinion issued July 11, written by Assistant Attorney General Amye Bensenhaver, held that the school system violated the state's Open Records Act by refusing to make the tape available. The district declined the station's request, declaring the tape was protected by the Family Educational Rights and Privacy Act. The videotape, the school district argued, is an educational record and is therefore confidential under the federal law.

But the opinion held that the videotape focused on the action of the adults involved rather than the students. The school system should blur the identities of any students visible in the tape and release it to the television station, said the opinion, which has the force of law unless overturned by a court. ~~The school system has 30 days to appeal. Lauren Roberts, a spokeswoman for the school system, said no decision has been reached on an appeal.~~ UPDATE, Aug. 9: The system released the tape, in which the identities of the students were obscured, and the station did a story and posted the opinion.

The opinion said, "Because the conduct at issue in the disputed videotape does not focus on students, or student activities, we do not believe the videotape can be withheld in its entirety as an 'education record.' Instead, we find that it is a public record in which there is a strongly substantiated public interest predicated on the public’s ‘right to know’ . . . whether public servants are indeed serving the public . . . .” The opinion held that the privacy interest of the students "does not override the public’s right to know that its agencies and their employees are 'properly execut[ing] their statutory functions,' in this case, insuring the safety and protection of the students who have been entrusted with their care."

But the attorney general's office also stipulated that the opinion applies only to this particular situation and is not a precedent that applies to all school videotapes.

According to the website of WLKY-TV, on March 1, Chesica White boarded a bus ridden by her 7-year-old son intent on finding out who was bullying him. White and her 12-year-old daughter argued with bus driver Johnetta Anderson. The argument escalated and White dragged the driver off of the bus. Anderson suffered a torn ligament. White was charged with 20 felonies and two misdemeanors. She entered an Alford plea, meaning she didn't admit guilt but acknowledged a jury likely would find her guilty of two assault charges.

The station filed an open-records request seeking reports of bullying on the bus on which the March 1 altercation occurred. The documents the station received outlined 150 such reports since the start of the school year. Of that number, 51 were filed in the two weeks leading up to the March 1 incident. For the station's story, click here.

AG again finds KSP violated Open Records Act

2011-07-11T21:46:00.005-04:00

Attorney General Jack Conway, the state's chief law-enforcement officer, has again found the Kentucky State Police, the state's main law-enforcement agency, in violation of the state's open-records law – this time in a case involving the 1977 Beverly Hills Supper Club fire that killed 165 people, one of the deadliest fires in American history.

The case began when David Brock, who is seeking evidence in the supper club fire, asked the state police for all photos and slides related to the fire. The state police gave him some black and white photos but refused to pursue access to color photos that had been taken home, with permission, by former trooper Ronnie Freels.

Conway's opinion, written by Assistant Attorney General Amye Bensenhaver, rejected the state police's contention that Freel's pictures were not in their control. Since they were removed with permission, they remained official state records and the state police must recover them and furnish copies to Brock, the opinion said, adding, "While KSP is not obligated to 'verify Mr. Brock’s assertion' that Mr. Freels maintains additional responsive photographs and slides relating to the Beverly Hills Supper Club fire, it must secure those records from Mr. Freels so that Mr. Brock is afforded the opportunity to do so himself."

The opinion called the police's action a "serious open records management issue that involved subverting the intent of the open records law, as well as the laws governing records management and retention." The opinion noted that the attorney general's office had referred the matter to the Kentucky Department for Libraries and Archives "for further inquiry." For a copy of the opinion, click here.

The attorney general's office earlier found the state police had repeatedly violated the records law in a homicide case, and a survey last year by the Kentucky Open Goverment Blog showed many news organizations in the state labeled the Kentucky State Police as "stingy" with public information.

Newspapers push fight against state cabinet

2011-06-06T18:19:00.012-04:00

The state's two largest newspapers wasted no time in pushing their case for a judicial order forcing the Cabinet for Health and Family Services to provide records about the deaths or abuse of children under the cabinet's supervision.

The Courier-Journal and the Herald-Leader filed a motion in Franklin Circuit Court asking Judge Phillip Shepherd to order the cabinet to release the records after U.S. District Judge Danny Reeves on June 1 denied the cabinet's motion to move the issue to federal court.

The motion filed by the newspapers asks Judge Shepherd to order the records to be made public, records similar to those the judge declared were public records in May 2010. They also ask that the court nullify emergency orders the cabinet issued to try to circumvent the judge's ruling. Rather than appealing Judge Shepherd's decision ordering the release of some records, the cabinet wrote orders to limit what records it will release concerning the death or abuse of a child under the cabinet's protection.

In December Courier-Journal reporter Deborah Yetter filed an open records request for records related to the deaths of two children under the cabinet's supervision. The cabinet told Yetter it needed 30 days to determine whether the records she sought existed even though the state's Open Records Act gives an agency three days to make that determination. In January, Herald-Leader reporter Bill Estep made a request for records relating to the death of any child under the cabinet's supervision that had died during Fiscal Year 2010, and the cabinet denied Estep's request as being burdensome.

At that point the newspapers filed suit again. The cabinet responded by trying to move the case to federal court, a move that failed.

Federal judge rules for newspapers, returns fight over child death records to state court

2011-06-02T18:13:00.023-04:00

A federal judge has ruled against the Cabinet for Health and Family Services in its continuing battle with two Kentucky newspapers over the cabinet's records of child abuse deaths and injuries.

U.S. District Judge Danny Reeves issued his order June 1 remanding the lawsuit to state court, where The Louisville Courier-Journal and The Lexington Herald-Leader had filed it. The cabinet had filed a motion to move the case moved to federal court.

At stake is access to records Franklin Circuit Court Judge Phillip Shepherd has already declared are public records.

In May 2010, Judge Shepherd ruled that the state Open Records Act did not allow the cabinet to shield from the public its records of the death of a child who was under the supervision of the cabinet. The case involved the death of a Somerset toddler who drank drain cleaner. He and his mother, then 14, were both under the supervision of the cabinet.

After Shepherd's ruling, the newspapers sought cabinet records involving other deaths. When the cabinet denied their requests, the newspapers filed suit in Franklin Circuit Court. The cabinet issued emergency regulations that would limit what records the state would have to make public and then filed a motion to move the case to federal court.

Judge Reeves, however, denied the cabinet's motion and returned the case to Judge Shepherd. "The Franklin Circuit Court aptly defined the contours of the Open Records Act as it relates to child protection cases," the order said, then quoted from Judge Shepherd's 2010 decision: “Under the Kentucky Open Records Act, the public records related to the death of a child under the protection of the state foster care system are open to public inspection."

The newspapers will file a motion asking Judge Shepherd to order the cabinet to release the records. (Read more)

Agencies told their forms are improper

2011-05-31T20:50:00.005-04:00

The office of Attorney General Jack Conway issued two opinions last week criticizing public bodies for denying records inappropriately.

The city of Carrollton violated the Open Records Law when it required a citizen seeking public records to fill out a city form for the request.

Salome Frances Spenneberg Kist in February requested records concerning specific properties in the city. The opinion, issued May 23, said the city cannot require requesters to use a city form. The opinion also criticized the city for failing to respond to Ms. Kist within three days, as the law requires.

The decision quoted a 1994 Attorney General’s opinion: “While the public agency may require a written application, as opposed to an oral request, there is nothing in the (open records) statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.”

In a separate opinion, the office held that the Housing Authority of Morgantown, Butler County, violated the law by asking Robert Cron why he was requesting records and by requiring him to fill out a form.

The opinion quotes a 2006 opinion of the attorney general which held “KRS 61.872(2) does not authorize public agencies to inquire into a requester’s motives in seeking access to public records, or to consider those motives in determining whether the records should be released.”

The office also ruled against a state prisoner who requested legal statutes from the Kentucky State Law Library. The attorney general’s office has previously held that the court system, including the law library, is not bound by the provisions of the Open Records Act.

Inmates lose open-records requests

2011-05-27T09:24:00.004-04:00

The Attorney General’s office has upheld the denial of records in two separate cases involving inmates in state prison, ruling the requested documents were exempt under the state’s Open Records Act.

The office of Clifford R. Duvall, commonwealth attorney for Lewis and Greenup counties in northeastern Kentucky, denied Wayne C. Murphy’s request to view the transcripts of a grand jury proceeding. That record is exempt from release under the state’s Open Records Act and under court rules established by the Kentucky Supreme Court. The attorney general ruled that Duvall correctly denied the request.

Murphy, according to the Ashland Independent, was convicted in November 2006 of the rape and brutal bludgeoning of a video store manager in Russell in 2004. The records he sought involved his girlfriend, Tracy L. Chaffins, indicted as the lookout in the incident. Before her trial, she took her own life, according to police.

In a related opinion, the attorney general held that the Greenup County jailer had violated the Open Records Act by failing to respond to Murphy’s request for all records related to the incarceration of William D. Mollett. The opinion also noted that because Murphy is an inmate at Eastern Kentucky Correctional Complex, the jailer could deny his request if Murphy did not have enough money in his account to cover the copy charges.

In a separate case involving an inmate, the attorney general’s office upheld the decision of the Kentucky State Penitentiary denying an open records request of inmate Anthony Sadler because of his inability to pay for copies of those records.

“The Open Records Act contains no provision for waiver of the prepayment requirements … and (the prison) did not violate the Act in denying Mr. Sadler’s request on the basis that he has insufficient funds in his inmate account to defray the cost of copies. The facility’s actions may work a hardship on Mr. Sadler but are consistent with the Open Records Act and the rule announced in Friend v. Rees,” decided by the state Court of Appeals in 1985.

The office also upheld the denial of a request for records of the Calloway Circuit Court Clerk, based upon a 1978 decision of the state Supreme Court that records held by the court system are not subject to legislative action. In 1998, the attorney general’s office interpreted that to mean court records are not subject to the Open Records Act.

State high court makes clear that contempt proceedings against jurors must be public

2011-05-24T22:40:00.006-04:00

In a ruling that could clear up what it called "continuing confusion" among Kentucky judges, the state Supreme Court has ruled unanimously that criminal contempt-of-court hearings for jurors must be open to the public.

The court ruled that Susan Schultz Gibson, a circuit judge in Jefferson County, "should have allowed the public and media access to a contempt-of-court hearing for a juror" whom she suspected of violating her order to avoid publicity about the case last year, Jason Riley wrote for The Courier-Journal. He and the newspaper were the plaintiffs in the case.

"The ruling overturns a state Court of Appeals ruling that found the issue was moot, since the case was over and no one was asking for the hearing to be held again," Riley wrote. "The high court, however, said the issue must be settled so it does not reoccur." The newspaper's attorney, Jon Fleischaker, told Riley, “It's an important decision for the precise reason we were concerned it could happen again.” (Read more)

City must give plaintiff contracts, personnel files

2011-05-24T22:03:00.001-04:00

A city-owned arena can't refuse to release information about its contracts and personnel just because that might put it and its contractor at a disadvantage with competing, private facilities, the attorney general's office ruled in a recent open-records opinion.

The records are being sought by Tad Thomas, attorney for Walter Richard Brotherton, who has filed a federal lawsuit against the city of Corbin, Victory Sports and the man who drove a motorcycle that struck Brotherton at a motocross event at The Arena Jan. 15, Michele Baker of the Corbin Times-Tribune reports.

Attorney General Jack Conway said the city failed to prove that the records are “generally regarded as confidential or proprietary” or that “disclosure would prevent an unfair commercial advantage to competitors” of Victory Sports. "The office also stated the City of Corbin violated the Open Records Act in denying access to public personnel files in their entirety," Baker writes. The city is considering an appeal to Whitley Circuit Court.

AG says Adair County hospital board violated open-meetings law , as newspaper alleged

2011-05-02T22:51:00.001-04:00

Adair County Hospital's board of directors was wrong to hold a closed-session discussion about the future of an interim CEO because the discussion was about his retention, not posible discipline or dismissal, the Kentucky attorney general's office found. It also concluded the hospital board did not have sufficient cause to discuss a report by Spectrum Health Partners in private.

Adair County Community Voice Publisher Sharon Barton submitted a written complaint to the board chairman March 30 alleging the violations. To remedy the matter, she asked for a copy of the PowerPoint presentation that had been viewed during the meeting as well as any minutes, notes, records and any other documents that had been reviewed.

The board replied that it was "clearly entitled to discuss this issue in executive session" because it was a personnel issue and so exempt from public discussion.

Assistant Attorney General Amye Bensenhaver disagreed, saying the personnel exemption applies only to discussions that might lead to the appointment, discipline or dismissal of an employee, member or student. "This exception shall not be interpreted to permit discussion of general personnel matters in secret," she wrote. "The board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee."

Bensenhaver also said the board should not have discussed the Spectrum report in closed session. The board was obligated to give notice "in regular open meeting ... of the general nature of the business to be discussed in closed session," she wrote. In correspondence, the board said that the report "contained information on specific individuals that might lead to discipline or dismissal" or might lead to litigation. "Even with this additional information, we believe the board's ... compliance fell short of the statutory requirements," Bensenhaver wrote on behalf of Attorney General Jack Conway.

AG says U of L physician groups tied to Passport must release salaries, other financial data

2011-04-19T20:59:00.003-04:00

Two groups representing the University of Louisville's faculty physicians have been deemed public agencies and are subject to the state open-records law, Attorney General Jack Conway has ruled. He said the groups violated the Open Records Act when they denied a request by The Courier-Journal's Tom Loftus for five years' worth of records showing employee salaries, sources of income and expenses. U of L doctors have a majority on the board of Passport Health Plan, which manages the Medicaid program for Jefferson and 15 surrounding counties.

The matter concerns the University Physicians Association and the University of Louisville Physicians. In December, Loftus requested the salary and expense documents after state Sen. Tim Shaughnessy of Louisville, right, asked the state Cabinet for Health and Family Services to "examine the flow of Medicaid funds from the state through Passport to UPA," Loftus writes. State Auditor Crit Luallen did not look into the issue in her November report, which pointedly criticized Passport for excessive spending and conflicts of interest.

Though the physician groups contended they were non-profit corporations, Conway said UPA is a public agency "because it was established and created, and is controlled, by the University of Louisville School of Medicine," Conway concludes. "In all material respects, ULP mirrors UPA in the manner of its establishment, creation and control ... We are not prepared to casually dismiss these facts as 'coincidence born of practicality,' and instead find that ULP and the School of Medicine 'act as one and the same.'"

In its articles of incorporation, UPA says its mission is "to further the research mission and teaching of the praction of medicine at the University." Moreover, UPA and ULP were established and continue to be run by U of L medical school administrators, department chairs and professors. "We agree with The Courier-Journal that the suggestion that these physician administrators and/or professors, each the chair or interim chair of their respective medical school departments, came together of their own accord, and as private actors to establish and create UPA defies logic."

Shaughnessy was impressed with the findings. "It causes me to ask: How could they think they are not a public entity? What remains to be seen is whether the university accepts this ruling or continues its arguments that it is not subject to public openness." (Read more)

Budget deal hits federal transparency websites

2011-04-13T18:38:00.001-04:00

"Government transparency websites likely will be scaled back or even eliminated as a result of a 75 percent budget cut that congressional leaders and the White House agreed to last week," William Matthews of GovExec.com writes for National Journal.

The $34 million Electronic Government Fund, being cut to $8 million, "supports websites such as http://www.usaspending.gov/ and the IT Dashboard, which provide public access to vast amounts of information on how the government spends money," Matthews writes. "Another transparency site, http://www.data.gov/, also is endangered, transparency advocates said. The site offers access to 380,000 government agency data sets as diverse as climate change statistics and export licensing records." (Read more)

Two Danville city commissioners walk out during closed session, refuse to comment

2011-04-12T15:41:00.000-04:00

Two Danville city commissioners walked out of a closed-door meeting last night, leaving the other two and the mayor to discuss a personnel matter that the absentees either didn't want discussed or thought should be discussed in public.

Kevin Caudill and J.H. Atkins, who voted against holding the closed session, left it after 45 minutes and "refused comment on either the purpose of the meeting or their reasons for leaving," David Brock reports for The Advocate-Messenger. "When the remaining commission members returned from executive session about 20 minutes later, no action was taken."

The Advocate-Messenger quoted from the personnel exception to the state Open Records Act: “Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee’s, member’s or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.” Then the paper added in conclusion: "The lengthy closed-door session was not the first in which one of the stated subjects was possible firing and no action was subsequently taken." To read the full story, click here.

National open-government blog is started

2011-04-08T18:24:00.002-04:00

Charles Davis, associate professor of journalism at the University of Missouri, has started a blog about freedom of information and open government, and is updating it several times a day. Davis is a former executive director of the National Freedom of Information Coalition. The blog is The Art of Access.

Passport Health Plan drops secrecy; governor calls on corrections non-profit to do likewise

2011-04-07T22:24:00.000-04:00

Passport Health Plan, the managed-care organization for Medicaid in the Louisville area, announced today that it would no longer fight to keep its records secret, deciding not to appeal a ruling by Attorney General Jack Conway that it had to give records to The Courier-Journal because most of its money comes from the state.

"The announcement came the same day Gov. Steve Beshear said he wants Dismas Charities Inc., a halfway-house company that stymied a state audit by refusing to fully release its financial information, to open its records as well," reports Deborah Yetter of the Louisville newspaper, which "has published stories detailing questionable spending by both Passport and Dismas, and legislators and state officials have demanded greater accountability from both." Louisville-based Dismas says it gets 22 percent of its funds from the state, 3 points short of the threshold for being subject to the open-records law.

Passport's interim CEO, Mark Carter, said in an article on the paper's op-ed page that the decision "was not based upon legal advice but was made as part of the continuing evolution, perhaps even transformation, of the plan." He said state Auditor Crit Luallen's scathing report on the plan "has served as a very beneficial wake-up call to our organization."

Luallen "was rebuffed in her attempt to audit Dismas," and yesterday "said outside companies that do state business must be held accountable for their use of tax dollars," Yetter writes. Today the state issued a request for proposals to expand Medicaid managed care to other parts of the state. Luallen told Yetter, “I think if government is going to privatize services … we have to have a higher level of accountability, not a lower level of accountability.” (Read more)

AG tells Kentucky Retirement Systems to reveal its salaries, which even its board doesn't know

2011-04-06T11:31:00.003-04:00

Attorney General Jack Conway told Kentucky Retirement Systems administrators yesterday that it must reveal how much employees are paid. They had refused a Feb. 10 request by Eva Smith-Carroll of Frankfort for "current payroll records."

“All the other state employee salaries are posted online. It wasn’t clear to me why this one agency should not have to disclose the size of its salaries,” Smith-Carroll told John Cheves of the Lexington Herald-Leader, who writes: “Robert Wilcher, a member of the KRS board of trustees, said he and his colleagues hadn’t heard about the case until after KRS management denied Smith-Carroll’s request. KRS executives have not disclosed their pay to the board, either, Wilcher said.”

Because it deals with open records, Conway's opinion has the force of law, but the retirement systems can appeal it to Franklin Circuit Court within 30 days. "KRS general counsel Schuyler Olt declined to comment Tuesday," Cheves writes. UPDATE, April 22: The salaries have been posted online, Cheves reports: "The new board chairwoman, Jennifer Elliott, on Friday said the board insisted that KRS salaries be posted online as quickly as possible." Elliott told Cheves, “We had not previously been aware that the system failed to turn over this information when requested. The board as a whole wants us to be transparent.”
UPDATE, April 7: One salary just became moot. In an apparently unrelated move, the KRS board fired its executive director and elected a new chairman, reports Tom Loftus of The Courier-Journal reports.

AG says Bowling Green should have given paper names of applicants for commission seat

2011-03-30T15:23:00.001-04:00

Attorney General Jack Conway has ruled that Bowling Green officials should not have kept secret the names of people who wanted the City Commission to appoint them to a vacant seat on the commission, which has since been filled.

The opinion was issued to the Bowling Green Daily News, which wanted the names before the seat was filled and appealed the denial to Conway. In its story, the newspaper highlighted the reasoning of Assistant Attorney General Amye Bensenhaver: “The public interest in the identities of persons seeking appointment to elective office is often greater than that of the public interest in the identities of persons seeking public employment,” which may be considered confidential.

The city argued that making the applicants' names and resumes public “may work to prevent others from submitting resumes should this process be followed again,” but the attorney general's office said the applicants “forfeited a greater measure of their personal privacy when they ‘threw their hats in the ring’.” For the story on Conway's decision, by the Daily News' Andrew Robinson, click here.

Inmate wins one, loses one in open-records cases; AG reminds agency of its responsibilities

2011-03-21T10:59:00.002-04:00

An inmate at the Kentucky State Reformatory at LaGrange was unfairly denied access to a record he requested, according to an opinion issued March 14 by the attorney general's office. The same inmate lost another appeal because the office found no evidence that the record he requested exists -- a common reason for denying open-records appeals. But his winning case reminded agencies they they may have to look in more than one place for records that are requested.

Uriah Pasha sought copies of reports related to an incident that resulted in his segregation from other inmates. The reformatory and the Justice Cabinet denied his request, saying no such reports existed in his institutional file. However, the attorney general's office found that the state's Corrections Policies and Procedures manual provides that an “alleged violation of rules and regulations shall be fairly processed,” and that the “inmate’s due process rights shall be fully protected,” and the cabinet later acknowledged that a corrections officer filed a report on the incident. In its decision, which has the force of law, the attorney general said Pasha is entitled to a copy.

The decision said the reformatory's "response was deficient insofar as it failed to acknowledge the existence of at least one arguably responsive record, and the cabinet only partially mitigated this error in its supplemental response. It is incumbent on KSR to conduct a search for responsive records that extends beyond Mr. Pasha’s institutional file and to provide him with any nonexempt responsive records that search yields. If the search yields no additional responsive records, it is incumbent on KSR to so advise Mr. Pasha and to provide a plausible explanation for the nonexistence of records contemplated by its own policies and procedures."

In the other appeal, the attorney general found no evidence that the records Pasha sought, a behavior control report supposedly written by a staff psychologist, existed. A public agency is not required by the Open Records Act to create records that do not exist to meet a citizen's request. Many inmate appeals are rejected on these grounds, but Pasha's successful appeal is a reminder that public agencies have a responsibility to look for records and, if they do not exist, explain why.

The text of any open-government decision by the attorney general is available via the link at the bottom of the KOG Blog.

Judge rules Passport managed-care plan for Medicaid is subject to Open Records Act

2011-03-17T08:33:00.028-04:00

As Kentucky prepares to put more of its Medicaid program under a managed-care system to save money, a judge has ruled that the contractor running the program's only managed-care plan is a public agency subject to the state Open Records Act.

Ruling in a lawsuit filed by The Courier-Journal, Jefferson Circuit Judge Susan Schultz Gibson wrote, "Since Passport exists for the purpose of administering the Medicaid program on behalf of the Commonwealth, the sought records all appear to relate to Passport’s state-related operations."

Passport, which can appeal the ruling, declined to comment. A consortium of Louisville-area hospitals, physicians and other health care providers, it serves about 165,000 poor and disabled Medicaid patients in 16 counties in the Louisville region under a $740 million annual contract. The state administers the program but most of its money comes from the federal government.

"While it has been praised by lawmakers for providing good care and saving the state money, it came under fire last year after a critical audit by state Auditor Crit Luallen," Deborah Yetter writes for the Louisville newspaper. "The audit blasted Passport management for spending on meals, travel and lobbying, and it questioned the transfer of about $30 million in reserve funds to University Hospital and other physician groups and hospitals involved in Passport operations." (Read more)

Family-services cabinet gets a runner-up national Black Hole Award for secrecy

2011-03-15T15:39:00.003-04:00

The state Cabinet for Health and Family Services' insistence on secrecy about deaths of childred for which it has responsibility has made it a runner-up in the Society of Professional Journalists' new Black Hole Award. SPJ says it created the award "to highlight the most heinous violations of the public's right to know." The award went to the Utah Legislature, which excluded electronic records from the state open-records law.

SPJ says the cabinet "has embarked on a campaign of obfuscation aimed at preventing the public from learning the details about the death of a toddler under the cabinet’s supervision. . . . The infant died in May 2009 after drinking drain cleaner at what police have described as a methamphetamine lab." SPJ notes that the cabinet "has a blanket policy of refusing to disclose all information in child abuse and neglect cases" and quotes Franklin Circuit Judge Philip Shepherd, who said its bias in favor of confidentiality seems to be driven more by the culture of the agency, "which seeks to avoid public scrutiny," than by the law.

The cabinet failed to conduct an internal review of the death, as required by law. The Courier-Journal and the Lexington Herald-Leader asked Shepherd to require the cabinet to produce related records; most of what the cabinet produced was redacted, and the judge ordered it to return with the entire unredacted record so that he could decide what would be released. Then the cabinet issued emergency regulations with the force of law to restrict access to such records. The papers filed suit again, asking Shepherd to strike down the regulations and order the cabinet to release the records. The cabinet has petitioned to move the lawsuit to federal court, arguing that federal law prohibits the cabinet from releasing information about children who die in its care. SPJ asks, "What is more egregious than a state government refusing to provide answers to the people of the state about the death of a child in its custody?"

Obama administration failing to meet open government goals, Knight survey finds

2011-03-15T13:08:00.006-04:00

The Obama administration is failing to fulfill its promise of improving Freedom of Information responsiveness by federal agencies, according to a Knight Open Government Survey by the National Security Archive, released March 13 for Sunshine Week.

In a news release, the Knight Foundation reported that fewer than half of the federal agencies have complied with a presidential memorandum Barack Obama signed in January 2009 instructing federal agencies to “usher in a new era of open government.”

The Knight Open Government Survey found that 49 of the 90 agencies had made concrete changes in their procedures to process requests for government records covered by the Freedom of Information Act. A year earlier, the number was 13. The news release said after the 2010 survey was released "The resulting national headlines sparked a new White House call to all agencies to show concrete change."

“At this rate, the president’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office,” commented Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, which funded the study. “Freedom of information laws exist to help all of us get the information we need for this open society to function. Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws.”

Read the entire report here.

Sunshine Week is March 13-19

2011-03-15T11:43:00.009-04:00

Sunshine Week, the annual event that reminds Americans of the virtue of open government, citizen access and oversight, and journalists' role in keeping citizens informed about their governments, is in progress. Promotional materials for Sunshine Week are donwnloadable at http://www.sunshineweek.org/. They include logos, editorial cartoons, other graphics and op-ed pieces on freedom of information and open government.

West Virginia Legislature sends governor a shield law that protects student journalists

2011-03-14T22:44:00.007-04:00

Our adjoining state of West Virginia is on the verge of getting a reporter's privilege law, which journalists usually call a shield law. The state legislature passed the bill over the weekend and sent it to Gov. Earl Ray Tomblin. The state has been one of several in which journalists can cite previous court decisions, but not a statute to avoid revealing sources to which they have promised confidentiality. The District of Columbia, Kentucky and 38 other states have shield statutes; only Wyoming has no reporter's privilege in its Constitution, court decisions or statutes.

"The measure provides West Virginia reporters with a qualified reporter's privilege to refuse to disclose confidential sources, and documents that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings," says the Reporters Committee for Freedom of the Press. With on exception, the law does not protect unpaid journalists; it defines "reporter" as someone who gathers and disseminates information to the public "for a portion of the person's livelihood."

The exception is that the law does cover student journalists. "This language puts West Virginia at the very forefront of the country in recognizing the value of student journalism and the importance of protecting students who are increasingly doing professional-caliber work," said Frank LoMonte, executive director of the Student Press Law Center. For background from the Reporters Committee on West Virginia case law and the bill's path through the Legislature, click here.

States can't reveal drug costs because federal law makes them secret; Montana governor blames drug lobby, Ky. contractor

2011-03-05T16:17:00.001-05:00

When Montana journalists asked Gov. Brian Schweitzer to reveal the prices the state pays for drugs in government health care programs, he said he wanted to tell them, but had to refuse because federal law keeps the information secret. Congress is "bought and paid for" by drug manufacturers, said Schweitzer, a conservative Democrat with a maverick streak. "Congress has created a system so that even the states, which buy tens of millions of dollars worth of these drugs, have no idea what we pay on a per-unit basis."

"Actually, Schweitzer does know what the state pays — but, before acquiring the information last summer, had to have his chief counsel sign a written agreement not to disclose it publicly," Mike Dennison of the Billings Gazette reports. "Schweitzer said the drug industry wants to keep secret the rebates it gives to states buying drugs for public programs, because it doesn't want regular retail customers to know how much more they're paying for drugs."

Schweitzer obtained the information last summer when he was trying to compare what the federal-state Medicaid program for the poor and disabled was paying for drugs compared to the cost in Canada. Montana news outlets argued that the state open-records law requires him to release "documents in his possession that list public money paid out or received by the state," Dennison reports. But the governor's chief legal counsel "said federal law bars disclosure of the information requested by the news organizations, and that federal law pre-empts Montana's open-records laws."

Also, "Magellan Medicaid Services, the Virginia-based contractor that negotiates additional drug rebates for the state Medicaid program, also claimed that the rebate information is a trade secret protected from public disclosure," Dennison reports. MMS, which works for several states including Kentucky, said revealing the information would hamper its ability to compete with other companies doing the work." It seems to us that if all such information from all states were released, that wouldn't be a problem.

Let's observe Sunshine Week March 13-19

2011-03-03T17:20:00.003-05:00

It's time to plan your observance of Sunshine Week, the annual event that reminds Americans of the virtue of open government, citizen access and oversight, and journalists' role in keeping citizens informed about their governments. Today we saw a new way to make readers, listeners and viewers remember it.

"It may be just a coincidence but the combination is apropos: Sunshine Week begins Sunday, March 13, the same day that Daylight Saving Time returns," the Arkansas Publishers Association notes in its latest Arkansas Publisher Weekly. Perhaps Sunshine Week could be promoted in conjunction with the annual reminder to move clocks forward.

Sunshine Week has coincided with the start of DST since a change in the federal time law a few years ago. The week has been built around national Freedom of Information Day, March 16, the birthday of James Madison, our fourth president and author of the First Amendment.

Promotional materials for Sunshine Week are donwnloadable at http://www.sunshineweek.org/. They include logos, editorial cartoons, other graphics and op-ed pieces on freedom of information and open government.

AG tells Retirement to give local watchdog data about Rockcastle County magistrates' benefits

2011-03-01T10:09:00.002-05:00

The Kentucky Retirement Systems violated the state Open Records Act when it refused to confirm the eligibility of local-government lawmakers for state retirement benefits, the attorney general's office ruled in a decision last week.

The opinion upheld an appeal by Michael Sheliga of Rockcastle County, a local government watchdog who had asked for "records verifying the eligibility of local officials to participate in the systems," and the numbers of Rockcastle County magistrates who had received benefits and claimed full-time work that makes them eligible for benefits, but not their names, the decision said. "It is our understanding that county officials, usually the county treasurers, are required to submit monthly sworn statements to Retirement certifying that employees, including magistrates, have, in fact, worked 100 hours."

The systems had denied the request, on the basis of a law requiring individual retirement accounts to remain confidential. That applies to a record "even if it does not identify a specific member," the agency argued on appeal. It also contended that disclosing the records would pose "a substantial likelihood of member identification." In negotiations with Sheliga, the agency refused to give him records with personal identfying information redacted, and on appeal claimed it was not subject to the Open Records Act.

The attorney general's office, in the decision written by Assistant Attorney General Amye Bensenhaver, rejected all those arguments. It said the law makes confidential only "specific data regarding a current, former, or retired member," and "is not intended to cloak all other records maintained by Retirement in secrecy." It said that while Sheliga "muddied the water" by giving Retirement the names of officials whose eligibility he wanted to confirm, an open-records request "should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government," in the words of a Rhode Island court decision cited by the Kentucky Supreme Court in 2008.

The retirement agency has 30 days from the date of the decision, Feb. 21, to appeal to Franklin Circuit Court.

City violated Open Records Act by denying request for inspection and charging for copies

2011-02-28T21:48:00.000-05:00

The Office of the Attorney General has ruled the City of Hurstbourne in Jefferson County improperly tried to bill a citizen for records he had specifically asked to inspect. The ruling also held the city violated the state Open Records Act by failing to adopt and post procedures outlining access to its records.

Jose Magana asked the city to inspect records of citizen complaints from Jan. 1, 1995, to the present. Instead, the city began making copies of those records and conditioned his right to inspect them on payment of 10 cents per page. The attorney general said the city subverted the intent of the law when it conditioned Magana’s right to inspect the records on prepayment for copies of these records in the amount of $170.

In answering Magana's appeal, the city argued that he had not specified a request to personally inspect the records. The attorney general found otherwise, citing Magana's October 18, 2010, letter to the city requesting access to city records "for the purpose of inspection.”

The decision, issued Feb. 25, notes that "in a line of decisions issued by this office, the Attorney General has recognized that the 'public has an absolute right to conduct on-site inspection of public records.'" The city prepared copies of the records, according to the decision, under the mistaken idea that the choice to prepare copies or allow personal inspection rested with the city, which is mistaken.

The opinion also notes that the requirement to adopt and post policies governing access to city records is "not a courtesy extended to citizens" but a legal requirement and suggests the city promptly adopt the required procedures.

Board for nursing-home administrators wants a law to let it issue secret admonitions

2011-02-26T16:11:00.004-05:00

A bill that was introduced late and got a fast start but has hit speed bumps and maybe a roadblock, would allow the Kentucky Board of Licensure for Nursing Home Administrators to admonish administrators in secret without the action being "considered a disciplinary action against the licensee."

The chairman of the board committee that recommended the bill said the alternative already exists, though not in law, and "would only be used for situations that were not serious enough to warrant action against an administrator's license," reports Valarie Honeycutt Spears of the Lexington Herald-Leader.

House Bill 414, which would make several other changes, was introduced Feb. 9 by Rep. Tom Burch, D-Louisville. On Feb. 14, he posted the bill for consideration by the Health and Welfare Committee, which he chairs, and got the House to waive the rule that bills be posted for three days before being considered. The next day, the committee approved the bill 14-0 and put it on the consent calendar, which is used to pass non-controversial bills without debate. It was posted for passage Feb. 18 but was removed from the consent calendar that day and has languished on the regular calendar since.

On. Feb. 22, Rep. Tim Moore, R-Elizabethtown, filed an amendment to the bill that could doom it. His is one of several measures that would require abortion clinics to give women face-to-face counseling and offer them an opportunity to see an ultrasound image of their unborn child. Because of that, "Burch said this week he did not think the bill would continue to move," Spears reports. However, the contents of the bill could be revived as an amendment to another one.

Spears, who has done much reporting about problems in nursing homes, notes that the licensure board minutes from February 2010 referred to 29 complaints; one was from 2006, and the rest were from 2007 through 2010. Among the cases was a nursing home administrator who did not contact authorities when aides abused a resident, an administrator criminally charged with stealing prescription drugs and an administrator sentenced to 10 years in prison for theft and exploiting an adult. The bill does not specify what kind of infractions would result in private criticisms." (Read more)

UK trustees vote to keep presidential search confidential until the final phase

2011-02-23T08:44:00.000-05:00

The names of finalists to be the new president of the University of Kentucky will be released only if all of them agree to the disclosure, and if not, only the university trustees' preferred candidate will be introduced to the campus community before being hired, the trustees agreed yesterday.

Trustee Jim Stuckert, chairman of the presidential search committee, "said the confidentiality provision was critical to applicants," the Lexington Herald-Leader reports, quoting him as saying, "We've got people waiting in the wings predicated on these motions." Britt Brockman, chairman of the Board of Trustees, told Becca Clemons of the Kentucky Kernel Monday that the search committee "has been extremely impressed by the breadth and depth of the field." The committee is scheduled to meet today to screen candidates; interviews are scheduled for March 22-23. (Read more)

At yesterday's meeting Brockman called the decision “a nice compromise . . . between public interest and transparency.” He said it would ensure input from the campus community and UK alumni, Nancy Rodriguez of The Courier-Journal writes, "while also protecting the privacy of candidates who might otherwise be scared away from applying out of concern they might lose their jobs at other institutions." (Read more)

There were misgivings. The Herald-Leader's Cheryl Truman reports, "Staff trustee Sheila Brothers said that she would vote for the confidentiality motion, but wondered whether she was getting reliable information about the importance of a closed search, saying she thought there is 'a vested interest in keeping the process closed.'" (Read more)

Open-records request trumped by federal law

2011-02-21T16:42:00.004-05:00

An attempt by The Northerner, the student newspaper of Northern Kentucky University, to monitor student grant applications ran afoul of a federal law relating to student privacy, according to an opinion of the Kentucky attorney general's office issued Feb. 15.

Jesse Call, a reporter for the newspaper, sought to examine grant applications submitted to the Student Government Association. But the university denied the request, citing student privacy requirements under federal law. Even though the grant applications were submitted to the student government, the university argued the association administers the grant program under the "direction and guidance" of the NKU Division of Student Affairs and that the records contain personal information of the students.

After the attorney general's office inspected the grant application, it agreed with the university's position, saying there is a substantial public interest in ensuring that student government fairly awards the Scott Wurster Book/Special Needs Grants, but "We concur with NKU in its stated position that the broadly worded definition of 'education records'" in the Federal Educational Rights and Privacy Act "extends to applications submitted by individual students for the grants."

Open-records opinions focus on request costs

2011-02-21T16:15:00.012-05:00

Fees to prepare answers to open-records requests were at the heart of two decisions issued Feb. 14 by the attorney general’s office. In one, the office held the Russell County School District improperly denied a request from the editors of the online Russell Springs News to access email logs for the accounts of two employees and set an excessive fee to have the work done. In the other, the office upheld a $34.66 charge for preparation of a list of contractors sought from the Russellville Independent School District.

Russell Springs News editors Louis and Tonya Stargel sought access to the school district’s email server logs for seven and a half months beginning May 1, 2010. (The News apparently began publication on Sept. 8, according to its archives.) The Stargels specifically asked to inspect emails from Sherri West, a former district employee; Kathy Hammond, principal of Russell Springs Elementary School, and Kenny Pickett, superintendent of the district.

The school district denied the request on Jan. 10, arguing the request was too broad and would impose an unreasonable burden. The district estimated it would require six work days, at an estimated total cost of $1,860, to compile the information. According to the attorney general’s decision, the school district offered to provide the information if the newspaper wanted to pay for the work.

The decision said the district could only charge routine copy fees if the newspaper requests the records, because the school district’s contention that it could charge more based on the commercial intent of the Russell Springs News was not valid.

In the Russellville school request, Marty Owens sought a list of contractors and subcontractors who worked on two school construction projects. The district, according to the attorney general’s decision, had no such list and chose to compile it rather than deny Owens’ request or make records available so that he could compile it himself. The district was justified in levying the $34.66 fee to cover the cost of preparing the lists Owens sought, the decision said.

Whitley judge-executive apologizes for keeping information about indicted sheriff from paper

2011-02-19T23:14:00.007-05:00

The Whitley County judge-executive told The Times-Tribune of Corbin that he reprimanded employees in his office after finding that their response to an open-records request from the newspaper did not comply with the law.

The Times-Tribune sent Judge-Executive Pat White an open-records request on Jan. 26 "after the newspaper received what appeared to be a copy of a portion of a letter from the Kentucky Association of Counties to former Whitley County Sheriff Lawrence Hodge," Managing Editor Becky Killian writes. In the letter, the association asked to “review any correspondence, copies of claim forms or other documentation relating to a claim filed with KACO for legal representation” for Hodge, who lost his re-election bid and was indicted on 21 charges after an investigation (logo above) by the newspaper. The grand jury indictment accused Hodge of embezzling hundreds of thousands of dollars in public funds.

"The letter asked White to contact the newspaper to arrange a time for the newspaper to review the documents," Killian reports. "White did not call and instead responded in writing with a letter that appears to bear his signature. He provided a copy of the Nov. 17 letter that again appeared to be only a partial copy of the document." Later, though, White allowed the newspaper to view and copy the documents.

Caroline Pieroni, a Kentucky Press Association attorney, told the paper that White's office had committed an “egregious violation of the Open Records Act” because public agencies are required to indicate when they have omitted or obscured information from a document and cite the Open Records Act exemption that they believe allows them to do so.

"White, who was informed of the Times-Tribune’s complaint on Wednesday, called later that day and said he had verbally reprimanded his staff for the violation," Killian reports. "He also apologized and said he would personally handle open records requests in the future." (Read more)

$1.5 million in grants fund project to hire one anti-corruption reporter in every state

2011-02-18T22:59:00.002-05:00

The Center for Public Integrity, a well-established, well-respected source of not-for-profit accountability journalism, is recruiting reporters for "an ambitious risk analysis of corruption in all 50 state governments," covering everything from pension fund management to disclosure laws to state budget processes.

"The journalists will assess the existence and effectiveness of anti-corruption and government transparency measures at the state level, including political financing, civil service management and state budget processes," the center says. "The goal is to hire 50 reporters (one in each state) on a part-time, freelance basis to help us complete the project with on-the-ground reporting and data entry. We’re looking for experienced reporters who know their state and know how to dig." Apply here.

The project is funded with $1.5 million in grants from the Omidyar Network and the Rita Allen Foundation to the center, Public Radio International and Global Integrity, which analyzes government accountability and corruption trends.

Bill would create panel to review deaths and near-deaths of children in state care; change promised for accountability, transparency

2011-02-17T17:07:00.006-05:00

The House Health and Welfare Committee approved a bill Thursday to "create a panel to review deaths and near-deaths of children who are neglected or abused while under the state’s supervision," the Lexington Herald-Leader reports.

The vote was unanimous, but some committee members "said they would not support the bill on the House floor unless it was amended to provide more transparency," Beth Musgrave writes for the newspaper. The bill's sponsor, committee chairman Tom Burch, D-Louisville, left, "told the committee that he was going to offer a floor amendment that would ensure the records of the panel would be available to the public."

Burch's House Bill 441 "would exempt the panel from disclosing its conversations and documents regarding neglected and abused children," and that would make the state child-care system more secret than it is today, argued Jason Nemes, a lawyer for the Kentucky Press Association. “It removes the transparency that we have today,” he said.

For several months, the cabinet has fought in court to keep the Herald-Leader and The Courier-Journal from reviewing records of children who have died when the state was supposed to be looking after them. After a judge ruled in favor of the newspapers, the cabinet issued an emergency regulation that "limits the release of information about the actions of child protection workers in cases involving children who are killed or severely injured because of abuse and neglect," Musgrave writes.

The papers are in court again, challenging the cabinet's refusal to release certain records. This week, the cabinet asked that the lawsuit be moved to federal court, arguing that federal law prohbits the release of such information. (Read more)

Free open-government seminar in Bowling Green

2011-02-16T11:39:00.004-05:00

The Barren River Area Development District will sponsor a free open-meetings and open-records seminar Wednesday, March 30, from 1 to 3:30 p.m. CDT in the district office at 177 Graham Avenue in Bowling Green. The seminar will be conducted by Assistant Attorney General Amye Bensenhaver, who writes a majority of the attorney general's decisions on open meetings and open records. She will be joined by Jeremy Rogers of Dinsmore & Shohl, a leading media law firm.

The seminar is designed to educate public officials about the two laws but is open to anyone who notifies the area development district in advance. Contact Ashley Lawrence at 270-781-2381 (fax 842-0768) or alawrence@bradd.org.

The seminar was prompted by a series of open-government controversies involving the fiscal court of Butler County, which is part of the district. To head off further legal action against them, the judge-executive, magistrates and county attorney agreed to request training from the attorney general's office in open-government laws. Bensenhaver said the office felt that it would be useful to expand the seminar to all public officials in the district. Many local officials are newly elected and unfamiliar with the laws.

City council can't act on an issue because too many members have a conflict of interest

2011-02-10T15:16:00.002-05:00

The Lancaster City Council found itself with a dilemma when three of the six members and the mayor had to recuse themselves from discussing an issue involving a school because they work for the county schools.

Garrard County Superintendent Donald Aldridge appeared before the council to discuss a leaky water pipe that "had cost the school district thousands of dollars," reports Ben Kleppinger for the Danville Advocate-Messenger. City Attorney Leonard Smith pointed out that three members of the council are teachers in the school system and the mayor is the school district’s community education director and they should all recuse themselves from the issue. "My recommendation is to not even ask questions, because you could have the appearance of conflict by asking the wrong question," Smith told the council.

Superintendent Aldridge was asking the council for a budget adjustment to cover the expense of a pipe that had leaked 700,000 gallons of water into the ground before being fixed. Smith told Aldridge and the council that Aldridge did not have any basis to make a change. "There’s nothing we can do about it and the school board’s stuck in the middle," said Smith.

With the water-bill issue behind him, writes Kleppinger, Aldridge asked Smith how he could ever bring an issue to the council if the council is rendered powerless by his presence. "Maybe you could fire two or three teachers and that will fix your problem," Smith joked, before explaining that other issues might not be as controversial and the council could handle them without having to recuse themselves. (Read more)

Two leading open-government advocates among 2011 Kentucky Journalism Hall of Fame inductees

2011-02-10T12:06:00.009-05:00

Two leading advocates of open government are among six people in the 2011 class of the Kentucky Journalism Hall of Fame, announced this week: Tom Loftus, longtime chief of the Frankfort bureau of The Courier-Journal, and Robert Carter, retired publisher of the Kentucky New Era in Hopkinsville.

Bob Carter, left, was president of the Kentucky Press Association in 1976 when the legislature passed the Open Records Act, and was on KPA's leadership ladder in 1974 when it passed the Open Meetings Act. For his work on that and other projects, he was named KPA's outstanding member in 1975. "Carter began his career on the advertising side of the newspaper business, and he thrived there, but countless journalists have benefited from his role in getting the Kentucky General Assembly to adopt the open-meetings law and the open-records law," New Era Publisher Taylor Hayes wrote in his nomination letter.

One of the leading users of the act, to the benefit of his newspaper and the public, has been Tom Loftus, right. Chief of the Louisville newspaper's state-capital bureau since 1987, "He’s an ardent watchdog who has made use of those laws than perhaps any other journalist in the state, as signified by the James Madison Award from the [UK journalism] school’s Scripps Howard First Amendment Center in 2008," said the nomination by Al Cross, his former C-J colleague, now at UK's Institute for Rural Journalism and Community Issues, and Bill Straub, his former colleague at The Kentucky Post, now Washington correspondent for the The Gleaner of Henderson and the Evansville Courier and Press.

Others elected to the Hall of Fame, overseen by the UK Journalism Alumni Association, are Bill Bartleman, recently retired reporter for The Paducah Sun; Jackie Hays Bickel, retired anchor for Louisville’s WAVE-TV; Ed Shadburne, former general manager of WLKY-TV and of WHAS-TV-AM-FM in Louisville; and the late Albert Dix, publisher of The State Journal of Frankfort. The six will be inducted at a luncheon April 5 in Lexington.

Electronic metadata are open, federal judge rules

2011-02-09T23:19:00.001-05:00

"For the first time, a federal court has ruled that metadata -- information related to the history, tracking or management of an electronic document -- must be released if requested under the Freedom of Information Act," reports Christine Beckett of the Reporters Committee for Freedom of the Press.

U.S. District Judge Shira Scheindlin ruled Monday in the case of National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency. The labor group requested records in electronic form from ICE. "After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata," Beckett reports.

Scheindlin said that failed to meet the requirements of FOIA because the data were unusable and undefined. "There was no way to discern the beginning and end of individual records," Beckett explains. The judge said ICE's arguments were "lame."

Metadata are essential to using electronic records because they show "the government is not hiding anything," said Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit. "It goes to the heart of FOIA."

The judge said metadata should be specifically requested, but ruled that because the labor group asked for electronic records in "native format," the original electronic format that contains metadata, that was sufficient to require ICE to provide the metadata.

She "conceded that not all metadata may fall under FOIA's 'readily producible' standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency," Beckett reports. "The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records." The U.S. attorney handling the case declined to say if an appeal will follow. (Read more)

1 of 3 rulings regarding Butler County says public has no right to take part in official meetings

2011-02-07T16:46:00.010-05:00

State law does not give members of the public the right to participate in open meetings of public agencies, Attorney General Jack Conway ruled in the most substantive of three open-meetings decisions involving the Butler County Fiscal Court and Robert D. Cron, who was a candidate for county judge-executive in 2010 and has persistently dogged open-government issues in the county northwest of Bowling Green.

Cron accused the fiscal court of violating the state Open Meetings Act by instituting a new procedure requiring visitors to identify themselves and have their issues placed on the meeting agenda before having an opportunity to address the court. The attorney general disagreed, saying the law does not provide a statutory right for the public to participate in public meetings or address members of a public agency.

Cron fared better in the other two cases. In one, he alleged that the fiscal court held a closed meeting to discuss hiring a part-time employee on Jan. 6, 2011, and failed to respond to his complaint within three days. Attorney Richard J. Deye replied that much like a recent case in Knott County, the meeting was improper and the fiscal court promises not to do it again.
In the third ruling, the AG's office could not decide conclusively if the fiscal court violated the law when it changed the time of a meeting from 6 p.m. to 5:30 p.m., "but the weight of the evidence suggests that it did." Cron complained that the court did not properly announce the time change. The court and Cron agree about "the sequence of events which resulted in the other complaint," but disagreed about the legal implications.

AG: Knott Co. Fiscal Court meeting conducted over the phone violated Open Meetings Act

2011-02-07T16:20:00.005-05:00

Attorney General Jack Conway has ruled that the Knott County Fiscal Court violated the state Open Meetings Act by conducting a meeting of the court over the telephone and by failing to respond to a written complaint alleging that they violated the open meetings law.

Emma Lois Pigman complained that the meeting held on Dec. 22, 2010, excluded the public. She also complained that the fiscal court had not properly announced the meeting, in violation of the law.

The fiscal court conceded that the telephone meeting was improper, and promised to try to not do it again. County Judge-Executive Randy Thompson said in correspondence to the attorney general's office that he didn't know he had to respond to open-meetings complaints within three days. The attorney general's ruling is unequivocal: Knott County Fiscal Court "must immediately discontinue this practice."

The fiscal court disagreed with Pigman's allegation that it had not properly announced the meeting, but provided no evidence. As the AG;s office pointed out, "We can conceive of few allegations that can more easily be refuted than improper notice. The fiscal court need only provide this office with a copy of the written notice." The ruling wraps up the Knott County situation: "Judge Thompson’s lack of familiarity with his duties under the Open Meetings Act did not excuse his failure to respond to Ms. Pigman’s complaints. This is particularly true in light of the fact that he has held the office of county judge since October 2005."

New secretary of state vows transparency

2011-01-30T12:30:00.008-05:00

In a speech after being sworn in yesterday, new Secretary of State Elaine Walker pledged to maintain openness in the office that oversees Kentucky elections and certain business records.

Walker, mayor of Bowling Green for the past six years, said her broad goal will be to ensure that the integrity of the office continues, and "It's critical to be transparent."

Kentucky elections are largely run by county court clerks, and Walker said her top priority is working with the 120 clerks in an effort to see that those in smaller counties have the same resources as those in larger counties.

Gov. Steve Beshear, a fellow Democrat who appointed Walker, said in his speech before she took the oath that the secretary of state should see that elections are run fairly, smoothly and honestly. "Kentucky's history is rife with examples to the contrary from time to time," he said, so the secretary of state should have a reputation for honesty and integrity.

Walker was named to fill the 11 months remaining in the term of Republican Trey Grayson, who resigned to become director of the Institute of Politics at Harvard University. She said Grayson has given the office a strong foundation in civic engagement, and "I plan to use my media background to take us to the next level." Walker and her husband are filmmakers who moved from Los Angeles to Bowling Green in 1993; her parents were Polish immigrants who lived in "a steel town in West Virginia" and taught her that "Leadership is not just an honor, but a responsibility," she told the crowd in the nearly full Supreme Court chamber after being sworn in by Chief Justice John Minton Jr.

Walker, 59, is running for a full four-year term and faces a primary challenge from Allison Lundergan Grimes, 33, daughter of longtime Beshear foe and former state Democratic chairman Jerry Lundergan, both of Lexington. Beshear made his choice clear yesterday, telling the crowd that he looks forward to working with Walker for the next year, and "I look forward to working with her for several years in the future." Beshear is running for a second term.

(Bowling Green Daily News photo by Joe Imel; for the paper's story by Andrew Robinson, click here.)

Rand Paul one of four Senators voting against ending secret 'holds'

2011-01-28T20:27:00.003-05:00

U.S. Sen. Rand Paul of Kentucky was one of four senators to vote against ending the secret "holds" that senators use to anonymously block legislation. Holds will still be allowed, but they must be listed in the Congressional Record.

Voting with Paul on the 92-4 tally were fellow Tea Party favorite Mike Lee of Utah and the leader of the new Tea Party caucus, Jim DeMint of South Carolina, as well as John Ensign of Nevada. All are Republicans.

Ensign told the Las Vegas Review-Journal he opposed the rules change after Senate leaders rejected a provision that would have given senators 72 hours to review bills before deciding whether to allow them to proceed.

Ensign said senators are given 48 hours after a bill is brought to the Senate floor to impose a hold. “All I want to do is make sure we have time to read these bills,” Ensign said.

Kentucky's biggest newspapers file lawsuit to obtain records concerning child's death

2011-01-28T17:49:00.006-05:00

The Louisville Courier-Journal and the Lexington Herald-Leader continue their fight to obtain Kentucky Department of Health and Family Services documents on the death of a 20-month-old boy who died after drinking drain cleaner at what authorities have described as an a meth lab in Wayne County. The newspapers contend the requested documents are subject to release under the state Open Records Act.

Franklin Circuit Judge Phillip Shepherd last month agreed with the newspapers and ordered the release of the records, which would shed light on the death of Kayden Branham, "who died after drinking drain cleaner at a home where it was allegedly being used to make methamphetamine," The Associated Press reported. At the time of his death, Branham and his 14-year-old mother were under state supervision.

Cabinet officials issued a statement justifying their decision to withhold the records was based on federal and state statutes that require it to keep some information confidential in cases of child deaths and serious injuries, according to the Courier-Journal's story. (Read it here)

Jon Fleischaker, who represents The Courier-Journal, said the cabinet is defying Judge Shepherd's order that the public has a right to such records in cases where children’s lives are at stake, according to the newspaper.

After Shepherd's ruling, the Department of Health and Family Services filed emergency regulations restricting release of information about children who have been killed or badly injured while being abused or neglected. The lawsuit, filed Thursday in Franklin Circuit Court, also asks the judge to overturn the emergency regulations on grounds that they do not meet the definition of a legitimate emergency and are being used instead to prevent release of the records. (Read more)

AG lets superintendent keep calendar private; tells PVA to release employees' vehicle records

2011-01-26T16:01:00.013-05:00

Attorney General Jack Conway has ruled that the appointment calendar of the Fayette County school superintendent is not an open record. The school system successfully relied on an open-records decision that allowed Brereton Jones to keep his appointment ledger secret when he was governor in 1991-95.

The case began when Brenda D. Allen requested the calendar of Supt. Stu Silberman from Jan. 1, 2009, through Nov. 22, 2010. Allen said the calendar must be archived for two years and the "issues of confidentiality" that a governor might have do not apply to a school superintendent. Conway disagreed, citing the Jones case, which said calendars are "preliminary drafts" and "are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection." Conway also found that a superintendent has issues of confidentiality described in the federal Family Educational Rights and Privacy Act when meetings concerning individual students occur.

Conway ruled for open government in another case, saying the Jefferson County property valuation administrator improperly relied on the federal Drivers Privacy Protection Act in denying Kevin Wilkins’ Dec. 7 request for “a list of locations of all real and personal property” owned by four named employees. Conway's opinion, drafted by Assistant Attorney General Amye Bensenhaver, cited a Connecticut court decision that tax assessors are not covered by the privacy act, and noted that PVAs don't have records with the information protected by the federal law, which prohibits release of personal information that identifies someone, such as a driver license, Social Security or telephone number. (Read more)

Conway's office lists all open records opinions since 1993, in chronological order.

Open-government lawyer Fleischaker named press association's most valuable member

2011-01-22T00:45:00.008-05:00

He really isn't a member as such, but the Kentucky Press Association wouldn't be the same without him, so the group gave Louisville lawyer Jon Fleischaker its Most Valuable Member Award yesterday.

Fleischaker has been the chief attorney for the association, The Courier-Journal and several other newspapers for decades, and in the early 1980s he and KPA started the only freedom-of-information hotline available at no charge to members of a state press association. He largely wrote the state's open-meetings and open-records laws in the 1970s and headed a rewrite in the early 1990s. The open-government laws remain models for other states.

The lawyer's "body of work is a huge testament to the value of open governance," said outgoing KPA President Chip Hutcheson of Princeton. Hutcheson, who is active in government-affairs issues with the National Newspaper Association, said Fleischaker "created a culture of openness in Kentucky government that is rare among states."

Fleischaker told the group, "It's been a labor of love for me and Kim" Greene, his wife and law partner. He closed with words of caution, saying the American system of politics and government "means you never stop fighting" for freedom of information.

President stresses need for legal ads

In other business at KPA's annual luncheon, Hutcheson was succeeded as president by Jamie Sizemore, right, publisher of The Kentucky Standard in Bardstown. She said the association needs to be more proactive in defending laws requiring government agencies to run legal notices in newspapers. She said polling shows that 89 percent of Kentuckians are more likely to see such ads in their local paper, while only 9 percent said they would more likely see them on web sites, where many officials want to put them instead to reduce costs. Sizemore said legal ads can account for "10, 20 even 30 percent" of a newspaper's revenue, but are also part of its government-watchdog function. KPA has a service that puts legal ads online for free. Sizemore said papers should promote the print and online services "as a bundle" that increases government accountability and transparency. For the Standard's report on its publisher's ascension, click here.

Legislature puts salaries and expenses online

2011-01-14T12:40:00.000-05:00

The Kentucky General Assembly has made legislative salaries and expense payments available on its website, http://www.lrc.ky.gov/, at this page: http://www.lrc.ky.gov/expenditures/default.aspx.

Online paper highlights procedural open-meetings violation but forgoes complaint

2011-01-05T14:19:00.005-05:00

An online newspaper based in Louisa prominently noted the Lawrence County Fiscal Court's violation of the state Open Meetings Act in a story this week, but said in the article that the paper would "not file a complaint because the mistake was obviously not intentional." The first paragraph of Roberta Blevins' story in The Levisa Lazer said the new set of magistrates held their first meeting and handled routine transition business. The next three paragraphs read:

The special meeting was not advertised nor was the press sent an agenda or notice of the meeting, said Michelle Miller, who is remaining as secretary in the judge’s office under new Judge/Executive John Osborne. She said she understands this is a violation of the Kentucky Open Meetings Law.

Ms. Miller said the special meeting was announced at the swearing in ceremony last week, but formal notification was not made. The courthouse was closed Thursday and Friday of last week because, Ms. Miller said, state computers are shut down during those days and business cannot be done which comes from the state. This could be the reason notice was not officially given for the organizational get together, she said.

The Lazer management has decided to not file a complaint because the mistake was obviously not intentional.

A "complaint" could take the nature of an appeal to state Attorney General Jack Conway, who could rule that actions taken at the meeting were null and void because the meeting was not legal. The open-meetings violation was not mentioned in the story's headline, which reported that the court named a former magistrate as road foreman.

The story ended with another meetings issue, noting that "Several citizens have complained that the meetings are not held at a time when they can attend." The court meets at 10 a.m. twice a month. "Osborne has said he will look into changing the meeting time if enough people request a move to an evening hour so that working men and women can attend if they so choose," Blevins writes. (Read more)

Man who attended meeting can't get recording of it because group was promised confidentiality

2011-01-03T15:36:00.002-05:00

A man who attended a community focus group whose members had been promised anonymity by university researchers does not have a right of access to audio, video or other recordings of the meeting, the state attorney general's office ruled in an open-records decision dated Dec. 22 and released today.

"Records that are available to one are generally available to all," and Mark Donham of Paducah "stands in the same shoes as any other open-records requester, notwithstanding his presence at the sesssions," said the decision, written by Assistant Attorney General Amye Bensenhaver for Attorney General Jack Conway. It agreed with the University of Kentucky that "There is no way to provide the recording without both identifying the participants and the statements they made under this explicit promise of confidentiality" from the Kentucky Research Consortium for Energy and the Environment, comprising a group of UK researchers.

The promise is a standard one involving university research involving human subjects. In an earlier decision, the attorney general ruled that UK researchers improperly refused to allow Donham to keep material that had been handed out at the session in Paducah. It said the university was correct in refusing a records request for names of participants but did not have the right to insist on return of "visualizations" given out at a subsequent session. The consortium has been studying possible uses for the Paducah Gaseous Diffusion Plant, which enriches uranium under a federal contract. Donham had refused to return a computerized visualization of the site as a nuclear power plant, one of the uses being considered. After an argument, university representatives threatened to call the police. Donham returned the material then filed an open-records request and appeal.

In his latest appeal, Donham said he didn't ask for names of all participants, just the "advisory board members for the study." The attorney general said those members had also been promised confidentiality. It did fault the university for not providing Donham a copy of its final argument during the last appeal, which Donham said inaccurately chacterized his actions at the meeting. He argued that the recordings would prove him correct, but the attorney general said, "However compelling his personal need to the recordings may be, we focus on his legal entitlement to the recordings or lack thereof."

State releases records in baby's death at meth lab; newspapers seek more

2010-12-07T11:53:00.023-05:00

UPDATE, Dec. 8: The judge yesterday ordered the state to give him all the records on the case by 10 a.m. today, along with a document list to give the newspapers. He said he would decide what records to make public. For a detailed story by the Herald-Leader's Beth Musgrave, click here.

A toddler who died last year at a methamphetamine lab near Monticello drank drain cleaner, which is used in making meth, according to records released by order of Franklin Circuit Judge Phillip Shepherd, the Lexington Herald-Leader reported Tuesday.

Attorneys for the Herald-Leader and the Courier-Journal are asking Judge Shepherd to hold the state Cabinet for Health and Family Services in contempt and to force it to release additional records related to the child's death still being held under seal.

The Herald-Leader had filed suit under the state's Open Records Act after the cabinet refused to release details in the death of 20-month-old Kayden Branham, right. The boy's father, Bryan Daniels, was charged with murder, and along with several others, with making meth. That trial is scheduled for January. Both the toddler and his mother, Alisha Branham, were under the supervision of the state system for abused and neglected children at the time of his death.

Both newspapers reported the records it received under Judge Shepherd's court order were incomplete, and some information contained in documents that were released had been redacted by the cabinet.

"The Herald-Leader strongly believes that the state should produce all records in this case, including any that reflect the cabinet's contact with the family and its conduct prior to Kayden's death," Editor Peter Baniak said in the newspaper's story. "Without such transparency, there is no way for the public to assess whether the state child-welfare system appropriately handled this case. That's why we took this case to court in the first place."

“They have not given us nearly all the records the judge ordered them to give us,” said Jon Fleischaker, a lawyer for The Courier-Journal. “I think there are major problems with their attempt to comply with the court order.”

In ordering the records released, Shepherd wrote, "It is not unwarranted for the public, and the press, to want to know what happened when a 20-month-old child in the care and legal custody of the Commonwealth of Kentucky winds up dead after drinking toxic substances in a meth lab."

For the full story in the Herald-Leader, go here. The Courier-Journal's story is here.

Kenton County judge cites sewer district, slams lawyers in open records case

2010-12-01T12:53:00.006-05:00

Northern Kentucky's Sanitation District #1 "repeatedly and willfully" violated the state's open records act in a dispute with an Independence construction company over sewage overflows, a Kenton County Circuit Court judge has ruled.

But Judge Martin Sheehan also slammed the Coppage Construction Company's lawyers for piling up an "obscene" amount of billable hours in the case, awarding $25,000 in lawyers' fees and $13,133.78 in costs, instead of the $185,000 they had claimed.

In a colorful ruling against the sanitation district, Sheehan railed against the district's conduct, which he said "falls woefully short of the standards demanded by the Open Records Act," then slammed the construction company's lawyers as "a gaggle of gluttons at an all-you-can-eat buffet."

"More than an estimated $300,000 has been expended in what amounts to little more than a discovery dispute," he wrote. "That's obscene! One could wonder if the best interests of the clients have been lost in the fog of a battle of wills, ego and legal one-upmanship."

The dispute involves a long-running civil lawsuit between the two entities, in which Coppage filed requests for thousands of emails from the sanitation district, which provides sewage service for most of Northern Kentucky. The district delayed complying with the request for some two years, using what the judge called a "shotgun approach, asserting any and all explanations for its conduct which it could conjure up."

"Upon analysis of the totality of the circumstances, including but not limited to inadequate searches, inordinate delays, implausible explanations, insufficient and incomplete production of records, and possible illegal record destruction, there is but one conclusion that can be reached," Sheehan wrote in his opinion. "(The district) repeatedly and willfully violated the Open Records Act."

On considering the question of legal costs, which the act says may be awarded in cases of willful violation, though, Sheehan said the request by Coppage for $185,000 "fails the reasonableness test."

"Quite simply the request shocks the conscience and is excessive and overreaching in many respects," the judge wrote.

In his ruling, Sheehan laments that "as a result of the conduct of many attorneys practicing before this court during its 17 years on the bench, this Court finds itself, with increasing frequency, bemusing and bemoaning the declining civility of our chosen profession. Scorched-earth litigation tactics now reign supreme ... the corrosive effect of such poison is painfully evident in the current dispute. Over $300,000 expended bickering over discovery - incredible! Ludicrous! Obscene!"

For a full text of the opinion, go to www.uky.edu/comminfostudies/irjci/KentonCountyRecords.pdf.

Conway tells Shelby County to release records of law-enforcement calls to a certain address

2010-11-30T14:52:00.002-05:00

Shelby County's 911 emergency dispatch service violated Kentucky's Open Records Act in denying a records request by a Shelbyville resident, Attorney General Jack Conway ruled last week.

The decision, which has the force of law, came in an appeal filed by Antoinette Taylor. She had asked for information on law-enforcement runs to 103 Grey Hawk Drive, Shelbyville, between May and September of this year. Taylor, who is listed as head of Act Now Ministries at 101 Grey Hawk Drive, could not be reached for comment.

Shelby County E911 Communications refused to give Taylor the data, citing a provision of the Open Records Act that exempts from disclosure records that "constitute an unwarranted invasion of privacy" of those involved. However, the attorney general's ruling said "The weight of legal authority, coupled with the facts of this case, militate in favor of disclosure." The decision noted that decisions on exceptions from the law must be made on an individual basis, not as a blanket rule, and that the agency claiming such an exemption must provide proof to support it.

The ruling also cited a previously unpublished decision of the Kentucky Court of Appeals in January 2009, before the Kentucky Open Government Blog began. The three-judge panel voted 2-1 to order the Marshall County E911 board to release call recordings, not just data about calls. The appeals court noted that there were competing interests between "the 911 caller's right to privacy when seeking police assistance versus the public's right to know about the conduct of government agencies." It noted that possible embarrassment to the caller in that case was insufficient, and that all such decisions are "intrinsically situational, and can only be determined" on a case-by-case basis.

For the full text of the attorney general's decision, see Links of Interest at the bottom of the KOG Blog. For the appeals court decision, go here.

Minton orders accounting of sealed cases

2010-11-22T09:50:00.002-05:00

Chief Justice John Minton Jr. has ordered all circuit court clerks and judges in Kentucky to make public at least the case numbers and names of parties in thousands of sealed court cases, according to The Courier-Journal.

The Louisville newspaper said the action came after it asked for an accounting of 3,600 cases sealed from public view over the past decade. Minton sent an email to clerks and judges reminding them that sealing court cases should be done rarely and "only for compelling reasons," and that the existence of such cases should never be hidden from the public.

Minton told the newspaper that in recent years, after Kentucky adopted new computer technology, cases that were sealed were moved to the "confidential division," and even the case numbers and participants were hidden. That was a mistake, he said, and the Kentucky Department of Technology would begin immediately change the programming involved. Clerks will also be asked to "make adjustments to previously sealed cases," the paper quoted Minton as saying.

The change will not open the sealed cases, but will reveal docket numbers and parties involved. Jon Fleischaker, who represents the Kentucky Press Association, The Courier-Journal and some other news outlets, said Minton's order was a step toward more transparency.

Butler County Fiscal Court loses open meetings appeal

2010-11-19T11:30:00.011-05:00

Butler Circuit Court Judge Ronnie Dortch has denied an appeal filed by the county's fiscal court on an open meetings case originally filed by local citizen activist Robert Cron.

Cron had appealed to the state attorney general over a series of private meetings between four members of the fiscal court and Sheriff Joe Gaddie last year to discuss the budget for the sheriff's department.

The attorney general's office ruled in March that the meetings violated the state's Open Meetings Act. The fiscal court appealed the ruling to the circuit court, which in a brief statement turned down the appeal. However, Dortch said he found no willful intent to violate state law by the fiscal court. That precluded any award of attorney's fees or court costs.

Cron ran an unsuccessful campaign for judge-executive in the recent election.

This is not the first time Butler County Fiscal Court has disregarded its obligation to the law and to the residents of the county by holding secret meetings. In January 2009, the attorney general held that the fiscal court's finance committee had violated the open meetings law by not giving public notice of its meetings.

Courts rule against two state agencies

2010-11-04T12:12:00.012-04:00

Two Kentucky courts have made pro-transparency rulings recently.

Franklin County Circuit Judge Phillip Shepherd has awarded attorney's fees and court costs to the Lexington Herald-Leader and the Louisville Courier-Journal in a case against the Cabinet for Health and Family Services.

The papers had asked for records related to the death of Kayden Daniels, a toddler under "custody and control" of the cabinet when he died at an alleged meth lab. The court, which had earlier ruled the records had to be released under the Open Records Act, in this follow-up decision took issue with the cabinet's blanket refusal to release individual child fatality reports, labelling it a "willful" and intentional violation of the law. "A party requesting public records who prevails in a judicial action ... at a minimum, should be made whole ... when the denial of access is an intentional policy of the agency rather than administrative oversight, bureaucratic confusion, or negligence," the ruling said. It awarded the two papers a total of $20,737.69 in fees and costs. (Kentucky circuit court decisions are available online only to lawyers and state and local officials, so no link could be provided).

"The court recognizes that the Open Records Act is there for the good of the public as a whole," said media attorney Jeremy Rogers, who represented the Courier-Journal in the case. "This opinion acknowledges the reality that court cases to protect rights under the Open Records Act can be costly. However, the court has properly viewed the law’s provision for attorneys’ fees as an incentive for public agencies to comply with the law and as an incentive for members of the public to vindicate the public’s right to know. As the court wrote, '[w]ithout the provision for statutory attorneys fees, public officials would have a great incentive to deny valid open records requests secure in the knowledge that few, if any, parties will be willing to assume the burden of legal fees necessary to challenge such decisions in court.'"

In a separate case, the state's Supreme Court ruled against the Department of Revenue, which in several instances involving a tax refund appeal had refused to release records in a case filed by Mitzi Wyrick on behalf of Gannett Satellite Information Network, Inc. The department had cited the "civil litigation limitation" on the release of information, which provides for special exceptions in ongoing lawsuits. However, the Supreme Court ruled in this case the department did so in error. "The civil litigation limitation is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency," the ruling said. (For the full text, go to http://apps.courts.ky.gov/supremes/sc_opinions.htm, then search 2008-SC-000468-DG.pdf.

Some news outlets say state police are too stingy with information

2010-10-08T16:52:00.003-04:00

By Terry Anderson
University of Kentucky School of Journalism and Telecommunications

Some Kentucky State Police posts routinely refuse to provide information that should be public, or ignore requests for information from local reporters, according to a survey of newspapers and broadcast stations.

Kentucky Citizens for Open Government surveyed news outlets in the state after the attorney general’s office said state police had “repeatedly violated” the Kentucky Open Records Act in a homicide case. (See 10-ORD-123 at http://www.ag.ky.gov/civil/orom/list.htm.)

Most of those surveyed said the KSP was generally good about releasing information, but slow, and nine of the 25 news executives who responded to the survey complained of difficulty in getting information from one or more of the KSP’s 16 regional posts.

“It’s consistently a pain to make it happen,” one news executive replied, and another described the local post’s information officer as “all but useless.”

Lt. David Jude, head of the KSP’s Media Relations Branch, said in an e-mailed statement, “Admittedly, we do continue to have relationship issues between our personnel and the media.” He said the agency “fully respects” its relationship with journalists, and “We believe in the mission of the media. . . . We train our cadets, first-line supervisors and telecommunications supervisors in what can be released to the media, how to work and understand the media and why this relationship is so important.”

The journalists said the state police’s reactions to requests for information varied widely among the posts. Each post has a designated, specially trained public affairs officer, but KSP spokesman John Hawkins said media outlets always have another option to obtain information. “There’s always somebody there for them to talk to.”

However, Timothy Kiger, publisher of the Grayson County News-Gazette in Leitchfield, said, “More often than not, it’s ‘the officer is off duty’ and there’s nobody else to give information. And when they do give information it’s only the barest tidbits. It’s like the proverbial blue wall.”

The widely varying replies to the survey indicated significant differences in the responsiveness of individual posts.

“We have not had any open-records issues with Post 2,” near Madisonville, said Tom Clinton, executive editor of The Messenger, the daily newspaper in Madisonville. “The degree of cooperation I have experienced during my 32 years as editor here has been largely determined by the post commander at the time.”

Clinton added, “The KSP is stretched pretty thin these days and getting timely information is always problematic when the officers have more pressing priorities.” In phone interviews, public affairs officers at several posts said they had additional duties. Even Jude, as chief spokesman for the KSP, is also designated head of the Highway Safety Program.

Phyllis McLaughlin, editor of the Trimble Banner in Bedford, said Post 5 at La Grange is “getting better, but they are far more reluctant to give information than any other law enforcement agency I’ve ever worked with anywhere else in my 25 years (as a journalist).”

Some editors were bluntly critical. Post 7 at Richmond is “all but useless,” said Michael Broihier, editor of The Interior Journal in Stanford. “Every day we get faxes about things that happen in surrounding counties, but never, ever to do we get one about Lincoln (County) without asking for it repeatedly.” Broihier said Trooper Chris Lanham, the post’s public affairs officer, had told him there “wasn’t room” for his newspaper’s fax number on the office fax machine and refused to take Broihier’s e-mail address. He said other requests for information on specific cases had been ignored.

Lanham acknowledged that the post had received complaints about him. “We’ve discussed this at post level in the past. A lot of times I’m not available because of other commitments – something might happen and the press not (get) information. A lot of times things happen and I’m not aware of them.”

Lanham said that he now has two “backups” at the post who can take inquiries. “That’s what we’ve done to try to alleviate those concerns from the media. It’s fairly new, but so far, so good.” He said other posts are now doing the same thing.

Sharon Burton, publisher and editor of the Adair County Community Voice, said the KSP’s Post 15 in her town of Columbia responds poorly to information requests.

Burton said in July that an officer at the post refused to give one of her reporters accident reports, contending that state law made such reports available only to the people involved and insurance companies. She called back and pointed out a section of the law that makes the reports available to news media. “The post captain then called me back and said we are entitled to the documents but I would need to send a request to Frankfort letting them know what I needed,” Burton wrote. “When I asked if I could get the reports the same day, he put me on hold then returned to tell me they have three days to respond. I sent an official open records request and am awaiting the response, but of course it will be past deadline for the current edition.”

Burton said she filed a records request with state police headquarters, then got a letter “telling me they have 10 days to transmit accident reports into the accident-report database and the ones I requested are not yet available.” She was incredulous. She said she finally got the reports Aug. 17. The accidents occurred on July 22 and 25.

The four other papers in the Columbia post area that responded to the survey gave the KSP favorable ratings. “We definitely try to keep the public informed,” post spokesman Bill Gregory said. “All media outlets have my cell phone number.” He noted that the post has an assistant public affairs officer, and said news people are often in a hurry, but that “our deadlines aren’t newspaper or radio deadlines.”

Jude blamed the initial negative response to Burton’s request on “an administrative specialist,” and added that “if the request had been referred to the public affairs officer or supervisor, I feel that a better resolution would have been reached.”

Jude confirmed that while officers may give out information orally to a reporter, when a request for an actual copy of a police report is made, there may be up to a 10-day delay for the report to be put into the KSP system, then up to a three-day wait allowed by the open-records law.

“It is understandable that a media outlet would become frustrated with these timelines when general information is all that was sought,” he said in an interview.

Requiring that a report be placed in the database before it is released is “silly,” said Jon Fleischaker of Louisville, a lawyer who has worked on open-records cases for Kentucky news outlets for decades.

“Where they get the 10-day thing, I don’t know,” Fleischaker said. “I don’t know what their internal systems are, but they have it at the post right away. I guarantee you if they have something good (to report) it’s going to get out (without waiting 10 days).” Fleischaker said he was not surprised about the complaints. “The best thing I can say about the state police over the years is that they’re inconsistent. It depends on what you’re asking for. If there’s stuff out there they don’t want you to know, they’re very bad.”

He said journalists’ requests to the state police for information “often result in a run-around – little bits and pieces are given out but they are not fair, complete and consistent.

“Some people are trying hard, but the ones who really control the information won’t give it out if they don’t want to.”

Jennifer Brislin, spokeswoman for the Justice and Public Safety Cabinet, which oversees the state police and its public-affairs officers, said, “We’re very pleased with the level of information released. If there is a case-by-case (problem), we’ll deal with it that way.”

Jude said, “I try to impress up on them that if time and the situation allows, provide basic information (as) to locations and what we are doing.” He said detailed responses should come from public affairs officers. “This is an ongoing process that we continue to work with. It seems in my travels that once the reporter or media outlet get to the proper person, we get the information out.”

Terry Anderson, former Middle East bureau chief of The Associated Press, is a lecturer in the School of Journalism and Telecommunications at the University of Kentucky and also works for the school’s Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues.

New SPJ president urges journalists to fight official secrecy, says it's growing at all levels

2010-10-06T09:59:00.004-04:00

Journalists must redouble their efforts to fight growing secrecy, the new president of the Society of Professional Journalists told the organization's convention as it wrapped up Tuesday in Las Vegas.

"We are under attack, from the smallest communities to the federal government," Hagit Limor, left, a reporter for Cincinnati's WCPO-TV, told the crowd at her installation banquet. She quoted a report from Freedom of Information Committee Chairman David Cuillier, saying that in many communities "We have the equivalent of a police state."

Cuillier, right, a journalism professor at the University of Arizona, made an "Access Across America" tour to 33 states this spring and summer, including one in Louisville, funded by SPJ's Sigma Delta Chi Foundation. It won him two awards and much recognition at the convention. In his report he cited cases of "no access to jail logs, arrest reports, 911 logs, incident reports or scanner traffic," but said the biggest FOI problem "isn’t that government is denying record requests. The problem is that not enough journalists are submitting record requests. Small news organizations need much more training in access. In some newsrooms the reporters didn’t know they could ask for public records."

Limor, whose father survived the Buchenwald concentration camp and saw her sworn in, said the Holocaust wasn't reported for years though governments knew about it. "Ask him why we have to fight for press rights, for access to government records," she said. "We are part of something that is bigger than all of us, that depends on all of us." For more on the convention and SPJ see http://www.spj.org/.

Attorney general faults Kentucky League of Cities, City of Salyersville in open-records cases

2010-09-27T15:12:00.003-04:00

The Kentucky League of Cities wrongly denied a Covington lawyer's request for information on how much the group paid its attorneys in a case he handled against them, the attorney general's office has ruled. The attorney general's decisions in open-records and open-meetings cases have the force of law unless overturned in court.

In another opinion, the attorney general's office found that the City of Salyersville "subverted the intent of the Open Records Act, short of denial of inspection," when it refused a request by Jeff Ross for city employee payroll records. The city had demanded that Ross be more specific. The original request was "adequate for a reasonable person" to determine what he wanted, the decision said.

In the League of Cities case, Brandon Voelker told the KOG Blog he planned to use the information in a lawsuit against the league, accusing it of wrongfully defending the first case, which involved a claim for damages caused by a Northern Kentucky sewer overflow. The league had provided insurance to the sewer district.

The league claimed that giving Voelker the information would create unfair competitive or commercial advantage to other insurance providers, since legal costs help make up its insurance rates. The opinion rejected the argument: "We are well aware that KLC occupies a unique position as a public entity, subject to the Open Records Act, that is engaged in a competitive business. Nevertheless, KLC offers no proof of competitive harm from disclosure of the records."

The opinion added, "The legislature's apparent goal in enacting these provisions was to expose KLC, and similarly situated public entities to the light of public scrutiny and not, simultaneously, to establish exceptions that swallow the rule of openness and accountability." For more background on KLC and the Kentucky Association of Counties' open-government issues, click here.

Danville editor wins James Madison Award for service to the First Amendment

2010-09-21T23:48:00.000-04:00

John Nelson, editor of the Advocate-Messenger in Danville, Ky., last night received the James Madison Award for service to the First Amendment, presented by the Scripps Howard First Amendment Center in School of Journalism and Telecommunications at the University of Kentucky. (A-M photo by Clay Jackson)

Nelson, who also oversees editorial operations of other Schurz Communications newspapers in Kentucky, won the award because "He has fought for open government in a number of important ways," former Kentucky Post editor Judith Clabes, the award's first winner, said in presenting it to him. She cited the nomination from Kentucky Press Association Executive Director David Thompson, who wrote, “Few people in Kentucky are as adamant about open government. If more had the drive that John Nelson has exhibited during his journalism career, there would be a demand from every corner of the state that all public agencies operate in ‘sunshine’ and make the agency’s business truly the public’s business.”

As KPA president in 2004, Nelson led Kentucky's first statewide public-records audit and was instrumental in creating the KPA Legal Defense Fund and a lawsuit that KPA filed to open juvenile court proceedings. Federal courts rejected the suit's arguments, but the Court of Appeals "interpreted state law in a way it had never before been interpreted, giving judges an opening to allow the press into the courtroom at their own discretion," he said in his acceptance remarks. Nelson has also been president of the Bluegrass Chapter of the Society of Professional Journalists.

Paper appeals ruling on redacted police reports

2010-09-13T14:18:00.008-04:00

The Kentucky New Era will appeal a court ruling that allows police to remove addresses and telephone numbers from crime reports before they're released, editor Jennifer P. Brown said Monday. She said Jon Fleischaker, one of Kentucky's top media lawyers, will represent the Hopkinsville newspaper in the appeal of the Christian Circuit Court decision last week.

The case stems from an open records request filed with the city of Hopkinsville by the New Era a year ago for arrest reports and incident reports about a suspicious fire. The city withheld "open case" files, but on those files it released, it removed information on race, gender, date of birth, ethnicity, addresses and telephone numbers.

The paper appealed to the attorney general's office, which ruled that the city could not apply blanket redactions to police reports, but must show case-by-case why certain information should be withheld. The city appealed to circuit court, which initially agreed with the attorney general, but last week amended its ruling to allow for the routine redaction of Social Security numbers, driver's license numbers, home addresses and telephone numbers. The paper agreed on the first two, but will argue against the withholding of addresses and phone numbers in its appeal.

Transparency Conference at UK Oct. 19-20

2010-09-08T14:06:00.004-04:00

The University of Kentucky's College of Communications and Information Sciences will hold a two-day session next month on Transparency and Open Access to Information that includes a panel on open government and another on open media.
"Open 2.0" will begin Oct. 19 with sessions on Open Geographies, Open Governmenet, Open Media and Open Libraries. The next will have panels on Open Entrepeneurship, Open Finances and Open Source. The main guest speaker on Oct. 20 will be Dr. Sean Gorman, founder and president of FortiusOne Inc., an Arlington, VA-based company "founded to change the way organizations visualize and analyze data for real-time problem solving," according to the company's website. The title of Gormans speech is "What the human sensor net can tell us about markets, society and disaster."
Details of the schedule and location of the conference can be found at http://cis.uky.edu/open.

Attorney general's office says 2 fiscal courts and a city commission violated open-meetings law

2010-09-07T13:37:00.003-04:00

In decisions released today, the state attorney general’s office said the city of Danville and some county fiscal courts violated state open-government laws. The attorney general's opinions in open-meetings and open-records matters have the force of law unless overruled in court. The attorney general ruled that:

The Nelson County Fiscal Court failed to adequately describe the reason for a closed session June 22. The court had cited both pending and proposed litigation as reasons for closing the meeting. In an appeal filed by Kevin Brumley, the attorney’s office said the state Open Meetings Act requires more than simply a citation of the act and a general statement such as “litigation,” but said the standard was different for “pending litigation” than “proposed litigation” because timing is often crucial in deciding to file a lawsuit, while a pending lawsuit already was on open file at the courthouse. The former reason was insufficient, while the latter was sufficient.

The Rockcastle County Fiscal Court violated the Open Meetings Act by failing to give all the required notices before every special meeting held between Jan. 1, 2008 and May 28, 2010. The ruling came in an appeal filed by County Clerk Norma Houk, who complained that the court had held some 43 meetings in that period without properly notifying those the act requires to be notified. The law requires that 24 hours before the meeting, notice go to members of the court and news media, and that a notice be posted in a conspicuous place in the building where the meeting will be held. The fiscal court also failed to reply to Ms. Houk’s complaint as required by law, the ruling said.

The Milton City Commission in Trimble County violated the Open Meetings Act by failing to give proper notice of two meetings of a quorum of its members at which public business was discussed, failing to record minutes of these meetings, and failing to respond to an open meetings complaint alleging these violations. That ruling came in an appeal filed by Shannon Hoskins over meetings involving the hiring of Water and Sewer Department Supervisor Mark Bates.

In an open-records case, the City of Danville failed to respond to a request for records within the three days required by the Open Records Act, but since the precise records asked for by Clay Moore – “signed copies” of several municipal parking-garage lease agreements – could not be found, the unsigned copies it eventually furnished were sufficient.