Kentucky courts still grappling with records of probes into sexual harassment at universities

From the Kentucky Open Government Coalition

An article in the Wisconsin State Journal reminds us that the issue of access to university records relating to investigations into sexual harassment by faculty and staff has yet to be finally resolved by Kentucky’s courts.

The open records lawsuit pitting Western Kentucky University against the University of Kentucky student newspaper, The Kernel, and it’s own student newspaper, The College Heights Herald, remains in Warren Circuit Court. This follows a 2017 Kentucky attorney general’s ruling that WKU improperly relied on the Family Educational Rights and Privacy Act as the basis for withholding sexual harassment investigative records.

In a separate lawsuit pitting UK against the Kernel, the Kentucky Court of Appeals in 2019 affirmed a 2016 attorney general’s decision, reversed a local judge's opinion, and ultimately rejected UK’s claim that FERPA protects university investigative records into allegations of sexual harassment.

However, the court returned that lawsuit against the Kernel to Fayette Circuit Court for further review on other privacy issues. There it remains.

The court slammed UK for failing to “fulfill its statutory mandates under the Act” and making no “attempt to comply with the Open Records Act in any meaningful way.”

Rejecting the suggestion that the Kernel was motivated by “simple curiosity,” the court recognized that “the public has an interest in the investigatory method used by its public agencies and to know that a publicly funded university has complied with all state and federal laws.”

It criticized the university for taking “the indefensible position that the records are exempt because it says they are and it must be believed.”

The University of Wisconsin case presents similar facts and similar illegal university secrecy. It involves a tenured ecology professor who retired in the midst of an investigation that confirmed allegations of sexual harassment.

Neither the professor nor his victims were satisfied by the university’s investigation and subsequent “cover up.”

Echoing the Kentucky Court of Appeals in the UK v. Kernel case, Frank LaMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former director of the Student Press Law Center, observes: “There’s a compelling public interest in the investigative process. The public needs to be able to see that cases are being taken seriously, processed promptly and dealt with appropriately. If you cannot see the records, the university is left on a ‘trust me’ honor system. We know from experience that the ‘trust me’ honor system doesn’t always work.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, notes that release of redacted records helps the public assess how fair the investigation was to both parties: “This is a case in which a public employee’s misconduct was affirmed by an investigation. The public has a right to know what that misconduct was beyond ‘sexual harassment,’ which could mean anything and include a wide range of behavior.”

Appeals court upholds award of attorney fees to reporter, citing city's repeated 'false denials'

The Kentucky Court of Appeals ruled today that the City of Owensboro must pay the legal fees of a newspaper reporter to whom it refused to give copies of complaint forms about the police department's public-information officer.

James Mayse of the Messenger-Inquirer sought records involving Marian Cosgrove, who resigned her job in November 2011 after coming under investigation by the department. He asked for any documents related to any complaint about her, and the city repeatedly said it had no records that would be responsive to his requests.

Mayse appealed to Attorney General Jack Conway, whose office asked for and got the investigative files from the city. Conway ruled that the city must release the initial complaint forms in the file because they are not exempt from the state Open Records Act. The city appealed to Daviess Circuit Court, where Judge Jay Wethington ruled for Mayse. He said the city's denials were "willfully defiant" of the intent of the law and done in "bad faith," so the city should pay Mayse's legal fees.

The city appealed, but gave Mayse the two Professional Standards Complaint Forms, so the appeals court dismissed that part of city's appeal. In granting Mayse attorney fees, the three-judge panel wrote, "The City's response, on three separate occasions, that no record responsive to Mayse's requests for complaints is problematic given the egis of the Open Records Act. In fact, there were two documents labeled "Professional Standards Complaint Forms" in Cosgrove's file from the inception of Mayse's requests. When the attorney general asked repeatedly about the existence of 'any other document,' the city also denied the existence of such documents to the OAG. The circuit court found the city's explanation that the information was incorrectly put on a complaint form and labeled 'internal' was not persuasive and defied the statutory intent of the Open Records Act. In essence, the City repeatedly made false denials of the existence of any complaints regarding Cosgrove." The decision is here.

Illegal meetings held by Danville commission, court says; and by Murray regents, attorney general says

"Two rulings came this week — one in circuit court, one by the attorney general — that public agencies have violated the state’s open meetings law," David Thompson writes in his weekly missive as executive director of the Kentucky Press Association.

"In Boyle Circuit Court, a judge ruled Thursday that the Danville City Commission held an illegal session and in the much-publicized Murray State University situation, an AG’s ruling on Wednesday said the Board of Regents violated the law by discussing the MSU president’s situation the night before the board’s official meeting."

Thompson's post has a short story from Todd Kleffman of The Advocate-Messenger and draws from a story in The Paducah Sun distributed by The Associated Press. To read it, click here.

Burnside violated Open Records Act, AG says

The City of Burnside, in Pulaski County, violated the Open Records Act when it did not respond in writing to a proper request to City Council Member Frank DeNiro’s request for public records, according to the attorney general’s decision on the matter.

DeNiro requested to “’view the most current Burnside water plant plans - drawings and water lines,’” on April 4, 2012, according to the decision.

DeNiro asked Burnside Mayor Ron Jones to see the city’s water plant plans, and with no definite response, filed an open records request, according to his account of the process, which was mentioned in the attorney general’s decision.

He said he later asked to receive a written response and was told the mayor had made an inquiry to the Kentucky League of Cities. DeNiro said he then received an email that stated he could not see the plans because of Homeland Security issues.

According to email exchanges provided by DeNiro sent between Jones and workers at the KLC, the mayor was advised that the city would “have to give a detailed explanation of ‘reasonable likelihood of threatening the public safety by exposing a vulnerability,’ if they plan to deny these records.”

KLC Legal Services Analyst Kim Johnson also advised the mayor that denying records on those grounds would be difficult, too, because the requester was a city council member.

The attorney general’s office received DeNiro’s appeal on Dec. 4, and Burnside City Attorney D. Bruce Orwin responded to the appeal.

“‘The mayor of the City of Burnside informs me that neither the City of Burnside nor any of its departments have copies of these plans for the records requested by Mr. DeNiro,’” according to the Orwin’s response as stated in the attorney general’s decision.

Orwin said that the mayor said should the records be deemed acceptable for release that he would request the plans remain in city offices, with no photocopies or photos of the plans being permitted because of security concerns.

“We find that the City of Burnside failed to meet its first obligation under the Open Records Act, which is to give a timely written response to a written request to view public records,” according to the decision.

By failing to respond in writing, the city of Burnside also committed a procedural error. And, since the city misrepresented the advice it received from the KLC, the city’s conduct was seen as “a substantive denial of inspection.”

“At no time did the City either make the required written response or justify the withholding of any records under a specific provision of” Kentucky state law, according to the decision.

The attorney general’s office stated that it did not have enough information to say why Burnside would not be in possession of the records and referred the matter to the Department of Libraries and Archives to take action should it be deemed appropriate.

AG says broad request for emails doesn't have to be fulfilled for six months

The Boone County clerk can make a man who requested almost a quarter of a million emails wait six months to get the records, Attorney General Jack Conway said in an open-records decision released today.

On Nov. 19, 2012, attorney Paul Croushore requested emails sent from or to 10 individuals, and containing any of 69 terms, during 2011. The clerk's office told him he would have to wait six months, "given the broad scope of the request and the necessity of reviewing each of the estimated 50,000 responsive emails to redact protected information," unless he wanted to reduce the number of search terms, while reserving the right to add more later, the decision says.

Croushore appealed to Conway's office, which cited a decision this year in a case involving the Campbell County Library. It also noted that the decision urged records requesters to "frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production." That decision is 12-ORD-097. Today's is 12-ORD-228.

AG: Cabinet hid too much information from Inez newspaper about case of 2-year-old who died

Attorney General Jack Conway has ruled that the state Cabinet for Health and Family Services violated the Open Records Act by withholding information about the death of a 2-year-old Prestonsburg boy whose aunt and uncle have been charged with killing him.

The Mountain Citizen, a weekly newspaper in Inez, asked for all information the cabinet had on Watson Adkins, whom the state had removed from his mother's home and placed in the custody of his maternal aunt, Gladys Dickerson of Prestonsburg. The boy was found unresponsive there in September 2011.

The cabinet "initially did not provide two previous unsubstantiated reports of abuse against Gladys and Jason Dickerson to the newspaper but later supplied the reports with much of the information redacted," reports Beth Musgrave of the Lexington Herald-Leader. "The opinion said the cabinet could not redact some of that information, including the names of perpetrators involved in the unsubstantiated reports."

Conway said the cabinet also violated the records law "by failing to cite either state or federal law that allowed it to withhold or redact certain information," Musgrave writes, noting that the case is the latest "in a more that three-year legal battle between the media and the Cabinet for Health and Family Services over what can be released after a child is killed from abuse and neglect. . . . What information can be redacted or blacked out of those files is currently on appeal."

The cabinet has 30 days from Monday, the date of the open-records decision, to appeal it to circuit court.

Citizen Editor Gary Ball told Musgrave that he sought the information after hearing that the cabinet had been told the Dickersons were mistreating the boy and his four siblings. “I got heavily redacted information,” he said. “I wanted all records from the time that they were removed from the home to the time of the criminal charges.” He said the mother had taken photos of suspicious injuries to the children.

"Ball said that the cabinet had investigated two reports of alleged abuse against Gladys and Jason Dickerson before September 2011," Musgrave writes. "Ball received the reports from the cabinet but it’s difficult to tell why those reports were not substantiated." He told Musgrave, “I want the records that will show me how they made that determination that those reports were unsubstantiated.” (Read more)

Mount Olivet violated both open-meetings and open-records laws, attorney general rules

By Taylor Moak

The Mount Olivet City Council violated the Kentucky open meetings and open records acts in its actions surrounding special meetings and a request for documents, the attorney general’s office ruled in August.

The first attorney general’s decision about the council, which was released Aug. 24, said the council violated the Open Meetings Act for not complying with notice requirements before holding a special meeting on July 16.

The council also committed a violation for failing to issue until Aug. 8 a written response to two complaints made July 26, and it committed a violation if public business was discussed in an “admitted meeting of a quorum of members without proper notice,” according to the decision.

The second decision, released Aug. 30, said the council violated the Open Records Act when it did not respond in a timely manner to an open records request.

Tony Beach, a resident of Robertson County, where Mount Olivet is the county seat, filed the appeals with the attorney general’s office.

Beach said he had been attending the city council meetings to hear discussion of plans to annex a new school that is a few miles outside of the city limits. The proposed annexation would also include his home.

“I started going to the meetings because I don’t want to be within the city limits,” Beach said.

He said over the years, the city has not been run in an organized fashion.

Over the summer, he went to attend a meeting of the city council where plans to replace a vacant city council seat would be discussed.

But he said the special meeting wasn’t advertised, and he was told that it wasn’t a special meeting. He said he was allowed to stay at the meeting, but he filed a complaint after that meeting because the people of the city did not have an opportunity to attend the meeting.

When he asked for the minutes of the meeting, the council couldn’t produce them, Beach said.

In his July 26 request to the council, Beach asked for eight items, including the minutes from the July 16 and July 23 special meetings, and all emails, correspondence, minutes or notes from meetings pertaining to current or future annexation plans. Beach also requested the names of any news media that have requested to be notified of the council’s special meetings.

Beach said in an appeal letter that he filed with the Attorney General’s Office that he never received a written response to his request, but when he attended a council meeting on August 6, he was handed two of the eight items he requested without explanation.

W. Kelly Caudill, an attorney from Maysville, represents the city council. In his Aug. 13 response to the attorney general, Caudill said of the July 23 meeting that “some council members met for the purpose of introducing themselves to a prospective new council member who was interested in filling a vacancy on the council. That council and the mayor did not conduct any city business.”

Caudill said he advised the mayor and the council “that any time there is a quorum that they must comply with the Open Meetings Act and treat same as a special meeting providing at least 24 hours notice.”

In his response to Beach’s request, Caudill said the city council “must respectfully deny same as they are in the excess of what the statute requires.”

A worker at Caudill’s law firm said she spoke with Caudill and “he indicated that he has no comment.”

Beach said the attorney general’s decisions puts the city council “on notice that someone is watching” and his primary focus remains not being annexed into Mount Olivet.

“My biggest concern is being annexed into a city that doesn’t know how to be ran correctly,” Beach said.

Legislature OKs bill to let county clerks to charge 50 cents a copy, ban scanners, cameras and such

The Kentucky General Assembly has passed and sent to Gov. Steve Beshear a bill that would allow county clerks to charge 50 cents for a copy of any record they have and to ban devices that could be used to make electronic copies in their offices.

The bill would overturn current law, based on the Open Records Act and an attorney general's decision, that limits the cost of copies to the direct cost of producing them, generally no more than 10 cents per page. It would also allow clerks to ban "scanners, cameras, computers, personal copiers, or other devices that may be used by an individual seeking a copy of a document maintained by the clerk."

Those measures were included in a bill that otherwise dealt with delinquent taxes. It was titled "An act relating to governmental revenue functions and declaring an emergency." The emergency clause means the bill would become law when Beshear signs it. If he vetoes it, his veto would appear likely to be overridden when the legislature returns April 12; the Senate passed the bill 37-0 and the House agreed with a minor change and repassed the bill 83-6.

Those voting against the bill were Reps. C.B. Embry, Mike Harmon, Jim Wayne (the only Democrat), David Floyd, Stan Lee and Addia Wuchner. The Kentucky Press Association lobbied against the bill.

Conway says AD district board violated meetings law in dispute between Lewis County officials

Attorney General Jack Conway has ruled the Buffalo Trace Area Development District board violated the state Open Meetings Act in using anonymous paper ballots to elect a citizen member to the board form Lewis County on Feb. 21, Marla Toncray reports for the Ledger Independent of Maysville.

The issue was raised by Lewis County Judge-Executive Thomas Massie, who is running for the Republican nomination for Congress in the 4th District.

Massie filed a complaint with board Chairman Bill Boggs Feb. 28, alleging that Vanceburg Mayor Todd Ruckel and other board members "conducted private conversations with board members in advance of the Feb. 21 meeting to secure the election of the mayor's nominee and defeat the election of the judge's nominee," Toncray reports. Conway did not reach a conclusion on that point, citing "the conflicting evidentiary record."

Massie wrote, "No notice of appointment of a board member was placed on the agenda for the Feb. 21 meeting, yet some members carried proxy votes for absentee members to the meeting." He also "alleged that the board improperly conducted the election by paper ballot rather than by roll call vote, that the paper ballots were reviewed by only three members of the board, and that the vote count was not announced," the decision says.

Boggs said the vote was conducted by paper ballot after a motion for a roll call vote failed for lack of a second. He said the district's bylaws "do not prescribe the means of conducting the election." But Conway's decision noted that the open-meetings law and past decisions require "a public vote of the members in attendance and a record of how each member voted."

Toncray reports, "Massie said Thursday BTADD board members were trying to avoid transparency and then followed the statement by asking how much public business is being conducted in secret at BTADD meetings." Massie told her, "Back room dealings were going on. Our citizens deserve full transparency and protection from these kinds of acts. That's why I filed the complaint." (Read more)

Whitley County clerk ignores open records decision

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.

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

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

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

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

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.

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

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)

Agencies told their forms are improper

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

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.

City must give plaintiff contracts, personnel files

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

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.

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

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.