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

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

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

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

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

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

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

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

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

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

Playing with public money

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

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

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

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

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

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

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

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

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

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

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

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

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.”

Think tank, open-government expert propose changes to state meetings and records laws

By Al Cross
Director, Institute for Rural Journalism and Community Issues
School of Journalism and Media, University of Kentucky

A conservative, libertarian policy center has teamed up with a widely recognized expert on Kentucky's open-government laws to propose several major changes to the law, which haven't been greatly revised in more than two decades. The Kentucky Press Association has been wary of opening up the laws for fear the General Assembly would leave them weaker, not stronger.

Amye Bensenhaver, who for 25 years was the leading official interpreter of the open-records and open-meetings laws, presented her recommendations to the State Government Bar Association in Frankfort Tuesday. She is director of the new Center for Open Government created by the Bluegrass Institute for Public Policy Solutions, which plans to post the proposals online Monday.

The proposals include:

• Making the state court system subject to the Open Records Act, reversing a state Supreme Court decision, which could take a constitutional amendment.
• Strengthening the power of the attorney general's office, which makes initial decisions in open-government cases, to get confidential information from public agencies that have denied open-records requests.
• Making texts, emails and other electronic documents created on public officials' private devices open records when they deal with public business.

Bensenhaver's recommendations fell into three categories: clarification of the laws, reconciliation of laws that may be in conflict, and modernization to keep up with recent technologies. In describing them, she took obvious pleasure in giving her personal opinions, something from which she was restrained as an assistant attorney general.

Clarification: The Supreme Court, citing the constitutional principle of separation of powers, ruled in 1978 that the General Assembly couldn't apply the 1976 Open Records Act to the state court system.

The system, overseen by the court, has generally observed the law in most cases while making clear that its compliance is voluntary. "They're not even accountable for monies they receive out of the General Fund," Bensenhaver said. "There may be some core functions" that need to be exempt, but not the spending of public dollars, she said.

When a public agency denies an open-records request, the requester can make a no-cost appeal to the attorney general. The law says the attorney general can request copies of the records to help decide the issue, but must not disclose them. The law does not say explicitly that the agency must provide the records, but that is its clear intent, Bensenhaver said.

The University of Kentucky has refused several times to give the attorney general records for review, saying other laws allow it to do so. Bensenhaver said the law should be rewritten to let the attorney general "declare that an agency’s refusal to comply with his request for additional documentation constitutes agency failure to meet its statutory burden of proof and to find against the recalcitrant agency on that basis alone."

When it comes to the Open Meetings Act, one problem is "serial meetings" of less than a quorum of members who discuss public business and collectively amount to a quorum of an agency board. The law says any such series of meetings "held for the purpose of avoiding" openness is subject to the law, but allows meetings "to educate the members on specific issues. Typically, members say they didn't intend to circumvent the law or say such meetings were only educational, so the law is "kind of limp," Bensenhaver said.

She noted that UK trustees held a series of such meetings on the university budget. She asked, "What could be more interesting to the public, as tuition rates rise?" and recommended that the General Assembly should redraft the law "to ensure that the purpose supporting its enactment is not defeated."

One of the vaguer open-government laws is the one that applies the Open Records Act to any "body" that gets from state or local government at least 25 percent of the money that it spends in Kentucky. In 2012, the General Assembly said that rule applied to "any fiscal year" but exempted money paid for goods or services obtained through public, competitive bidding.

"What they did in 2012 was quite unfortunate," Bensenhaver told the state-government lawyers. "It allows an awful lot of big fish to get through the net." She made no specific recommendation for a change, but said legislators need to decide the intent of the original law "and develop language that achieves that goal" and allows the attorney general to get information to determine whether an entity has reached the 25 percent threshold.

Jim Waters, president of the Bluegrass Institute, said he has had discussions with legislators about the 25 percent law, which has been the topic of unsuccessful legislation in the last two sessions, and the extension of the records law to the court system.

Reconciliation: There are gaps, overlaps and conflicts between the Open Records Act and the Open Meetings Act. Bensenhaver said the General Assembly needs to reconcile them.

For example, a public agency board may discuss a proposed budget in an open meeting but refuse to release copies of the budget on grounds that it is a preliminary document. (City councils can't do that, under a 2010 records decision obtained by KPA for the Midway Messenger.) Another issue is employee performance evaluations, which have some legal protection but must be discussed in open session.

Bensenhaver said the legislature should reconcile the conflicts "in a manner that promotes responsible agency discussion and meaningful public scrutiny," with an open-meetings exception for discussion of exempt records. "Where the public’s right to know outweighs any actual need for confidentiality, the laws should permit access to records and discussion of records," she said.

Bensenhaver also called for repeal of "a very dangerous provision" of the meetings law, which arguably exempts most agencies from the requirements for going into a closed session. She said the courts have ignored the conflicting laws, and the attorney general's office has construed them "in a manner that avoids consequence," but the laws "could be used to justify unannounced closed sessions and final action in closed session."

Also, Bensenhaver said the open-meetings law needs to place the burden of proof in an appeal on the public agency, just as the open-records law does. "The agency has a monopoly on the facts but is not required to sustain its action by proof (such as sworn affidavits of members)," she wrote.

Modernization: Aside from adding references to email for correspondence, Skype for teleconferences and smartphones and scanners to "reproduce records onsite," Bensenhaver identified two major areas that need better definition to keep up with modern technology that has caused agencies to create many more records.

She said the legislature needs to better define "unreasonable burden" on an agency as an excuse to deny a records request. She said the 1976 General Assembly "couldn't envision requests that would involve millions of records."

Bensenhaver called for reversal of a "poorly reasoned" open-records decision by Jack Conway on his last day as attorney general in 2015, exempting records created by private devices such as smartphones. "That decision would not withstand judicial scrutiny for one minute," she said. "You're essentially saying, do all your business on private devices, and don't even discuss it at a public meeting."

Bensenhaver wrote, "These records are public records . . . despite Kentucky officials’ reluctance to acknowledge their status as such. This reluctance poses the gravest threat to open meetings, open records and government accountability generally."

Finally, Bensenhaver said penalties for violating open-government laws need to be "enhanced," by making an agency pay the requester's legal fees and court costs if the agency loses at the attorney general's office and again in circuit court. "Such a revision would discourage agencies from initiating bad-faith appeals and encourage citizens to pursue their rights under the open meetings and open records laws with less fear of incurring financial hardship should the dispute go to court," she wrote.

Bensenhaver was asked whether opening up the laws could lead to the attorney general's office losing its quasi-judicial powers, since Democratic Attorney General Andy Beshear is at odds with Republican Gov. Matt Bevin and Republicans also control the House and Senate.

She said the best solution would be to keep such reviews out of any political office, and noted that some states have created independent authorities to make initial rulings on open-government appeals.

The newest of those is the Iowa Public Information Board, which has nine members appointed by the governor and confirmed by the Senate. No more than three members represent the news media, and no more than three represent local governments. The members serve staggered four-year terms, and are balanced by party and gender.

Bensenhaver resigned from the attorney general's office last summer, saying she was put "under considerable duress" by Beshear and his lieutenants, "the last straw" being a reprimand for talking to a journalist writing a story on the 40th anniversary of the records law. She said her difficulties reflected an increased politicization of the AG's open-government role under Beshear and Conway.

AG says Danville solons broke open-meeting law by deciding secretly to buy a building

UPDATE, Oct. 23: The city has appealed the decision to Boyle Circuit Court, The Advocate-Messenger reports.

The City of Danville violated the state Open Meetings Act by taking action in closed session to buy a building and failing to respond to a complaint about it from the local newspaper, Attorney General Jack Conway has ruled in a decision both sides received yesterday.

"The disputed action in an executive session took place July 23 during a City Commission meeting. There was no public vote regarding purchasing the building during open session that day," reports Stephanie Mojica of The Advocate-Messenger. "It wasn’t until Aug. 13 that commissioners publicly approved the purchase . . . a decision that has stirred some controversy, partially because Commissioner Ryan Montgomery’s father, Mike Montgomery, conducts business with the property’s now-former owner,  Mitchell Barnes of Lexington. On Aug. 13, commissioners said they had reached a 'consensus' during the July 23 executive session that allowed City Manager Ron Scott to move forward with plans to hire a bidder and secure the property through auction. However, a consensus is still a vote, according to the attorney general’s decision."

The commission had told the attorney general's office, "The Commissioners collectively stated to the City Manager that they could potentially approve of a purchase of the . . . building if the sale price was less than the appraised value" and that all of them supported the City Manager hiring "a professional bidder as its agent … so as not to showcase that it was the City bidding." The commission argued that it acted as the Florence City Council did when it agreed in closed session to settle a lawsuit, then approved the settlement at a later, open meeting. Conway's office said that didn't apply "because the appeal before us does not involve a settlement conference in litigation," and noted that "a commitment or promise to make a positive or negative decision" constitutes "taking action" under the open-meetings law. It also faulted the city for not responding to a follow-up complaint the Advocate-Messenger filed Sept. 14. For the decision, click here. For the story, go here.

Editor, lawyer say open-government laws being obeyed more, but the battle will never end

By Al Cross
Institute for Rural Journalism and Community Issues

Public officials in Kentucky are doing better at obeying open-government laws, but many still have a ways to go, but Kentuckians are making increasing use of the laws to hold officials accountable.

So said the chief author of the laws, and one of the leading users of them, in an interview being broadcast on statewide television this week to mark the 20th anniversary this month of the laws' major rewriting. They also said the battle for open government will never end.

"We have to re-educate our local officials every four years about open meetings and open records," John Nelson, executive editor of Danville-based Advocate Communications, told Bill Goodman on "One to One," broadcast on KET Sunday afternoon. The show is airing on KET2 Tuesday, July 24 at 7:30 p.m. ET and Wednesday, July 25 at 7:30 a.m. ET and on KET Sunday night, July 29 at 12:30 a.m. ET. It is available online by clicking here.

Host Bill Goodman shares a laugh with Nelson, center, and Fleischaker

Nelson, a leader in using the Open Records Act, said "We use it or consider using it at least weekly" at the company's papers in Danville, Winchester, Nicholasville and Stanford. He said he has seen recently seen an increasing use of open-government laws by the public, and "I would love to see more citizens become more aware of the law."

The General Assembly passed the laws in the mid-1970s and revised them in 1992. Since them, users of the records law have made some progress in reducing an attitude among public officials that records were "their business, not the public's business," said Jon Fleischaker, a Louisville attorney who helped draft the first laws and was the Kentucky Press Association's chief counsel on the rewrites.

Fleischaker said one powerful aspect of the laws is the ability of anyone to appeal the denial of a record, or access to a meeting, to the state attorney general and get within 20 days a ruling that has the force of law unless overturned in court. He said the process for "a quick and easy determination that is inexpensive" is "close to unique" among the states.

He said the attorney general's office has become increasingly helpful with successive attorneys general: "They're very consumer-friendly, citizen-friendly." He said later that most judges have also been a boon: "The courts in Kentucky have been very favorably inclined toward openness."

A key court decision, opening the donor records of university foundations, stemmed in part from a better definition of "public agency" included in the 1992 rewrite, Fleischaker said. The loser in his lawsuit for The Courier-Journal was the University of Louisville, which claimed privacy but had "wrongly assured" donors they would remain anonymous, he said. "In most of those cases there was a deal being made" with the donor. "That's not a private matter."

KPA and others began pressing for improvement of the laws little more than a decade after their passage because newspapers had become concerned about repeated violations of the laws and difficulty in achieving their goal of open and accountable government.

In 2004 KPA, The Associated Press and journalism schools in the state conducted an "open records audit" by sending strangers to local agencies to request specific records. Nelson, KPA president at the time, said there was "largely a positive outcome, but we did find that there were problems."

Nelson said the "glaring weakness" that remains in the laws is a light penalty for non-compliance. Fleischaker said it is "a very small fine that almost never gets implemented," and "That takes litigation and expense," usually against a public agency that can "go to court at the drop of a hat."

Fleischaker said it is also rare for courts to grant attorneys fees in open-government cases, but noted that the state Cabinet for Health and Family Services was ordered to pay in its dispute with major newspapers and the Todd County Standard about child-abuse fatalities and near-fatalities.

He said the case has "become a procedural nightmare" as the state Court of Appeals considers several procedural questions and the cabinet gives The Courier-Journal and the Lexington Herald-Leader documents that are "being redacted much more than they should be," including "names of people charged in criminal court with murder." He added, "This has nothing to do with children and protection of children; it has to do with protection of people in the cabinet."

Rockcastle County 911 Board failed to prove harm in releasing tape and dispatch log

The Rockcastle County 911 Board violated the state Open Records Act by failing to prove that a tape and dispatch log were exempt from disclosure, the attorney general's office has ruled.

In originally denying the request, the board indicated that the records were “unavailable because of an ongoing investigation.” While this is a valid reason for exempting a public record under KRS 61.878(1)(h), the board did not cite the statute in its denial (violation of the procedural requirements) and also failed to prove that release of the record would harm the Mount Vernon Police Department (violation of the substantive requirements).

After privately reviewing the tape and dispatch log, the attorney general’s office confirmed that the records were of radio communications concerning a traffic stop. However, because the records only contained general information and not primary evidence, the office decided that disclosure would not weaken the board’s case, hinder its investigation, or taint the jury pool. It said the board did not overcome the presumption in the act that records are public.

Kentucky State University joint regent committees failed to follow provisions of Open Meetings Act

The attorney general's office has upheld an appeal by The State Journal of Frankfort and reporter Katheran Wasson that committees of the Kentucky State University Board of Regents violated the state Open Meetings Act earlier this year.

The Finance and Administration Committee and the Audit Committee jointly held a closed session meeting on Jan. 27 to discuss an external audit. Before entering the closed session, the committee failed to pass a formal motion to go into closed session and cite the reason for the session, as required by the act.

Wasson submitted a written complaint describing the violations to the presiding officer of the meeting, Charles Whitehead. In her complaint, she requested that the full board acknowledge, in writing, that the closed committee session violated the law. She also requested that “members of the Finance and Administration and Audit Committees make public any notes, minutes or recordings taken during the closed session," and if no such records were created, Whitehead" make a public, written statement of what transpired during the closed session and what was discussed in detail." Finally, Wasson asked that the board "vow, in writing, to never meet in closed session again without citing a specific statute and taking a formal vote" and that a written statement to this effect "be shared with all members, in case they ever find themselves serving as chairperson of a committee or presiding over a meeting."

Under state law, [KRS 61.815(1)(b)] the following are required as conditions for conducting closed sessions: Notice must be given in an open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific exception authorizing the closed session; closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; no final action may be taken at a closed session; and no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

According to Wasson's transcript of her recording of the meeting, Whitehead said, "I’d like to take this committee into closed session so that, so that, so that – I usually do this, just to hear from the auditors, just so that they can say anything that they might want to say. Can we do that?" Wasson said one committee member then looked at Lori Davis, the university’s general counsel, who approved.

Regents Chairwoman Laura Douglas denied the meeting was illegal and rejected Wasson's remedial steps, saying the committee closed the meeting under an exception that allows closed discussion of on threats to public safety. Attorney General Jack Conway ruled that the exception was clearly inapplicable and the meeting was illegal.

Bill would shield some holders of competitively procured contracts from open-records requests

A state House committee voted yesterday "to change the Kentucky Open Records Act to make private the records of some organizations doing business with government," John Cheves reports for the Lexington Herald-Leader. "Presently, any organization that gets at least 25 percent of its revenue from local or state government must share some records under the act, which is meant to bring transparency to public spending." House Bill 496 would exclude from the calculation money from contracts "obtained through a competitive public procurement process."

The bill's sponsor, Rep. Johnny Bell, D-Glasgow, said it was prompted by letters that Glasgow lawyer John Rogers has been sending highway contractors, who depend largely on state government. Rogers didn't return Cheves's call for comment, but "One of the companies that Rogers has asked for records, Hinkle Contracting Co. of Paris, has alleged in a letter to Attorney General Jack Conway that Rogers is working on behalf of a company called Utility Management Group," which runs Pike County's water and sewer systems. "Conway's office ruled in September that UMG is a public entity under the Open Records Act and must disclose spending information. UMG is appealing in Pike Circuit Court."

Buckner Hinkle Jr. of Hinkle Contracting told Cheves that Rogers is trying to "goad other contractors to support UMG" in the lawsuit. "Bell said he is not involved with UMG, and his bill is not intended to protect UMG from public disclosure," Cheves reports.

Kentucky Press Association Executive Director David Thompson said KPA does not oppose the bill because Bell changed it to say that the 25 percent rules applies to any fiscal year, not "the current fiscal year." Current law leaves that point unclear.

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

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)

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

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.

State cabinet loses another open records lawsuit

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

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.

Parks board defends meeting behind closed doors

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.

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

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 again says Health and Family Services Cabinet violated Open Records Act

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.

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)

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

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.

Louisville school-bus fight tape is open record

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

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.

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

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.