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.”

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.

Ky. high court says police can't just dismiss records requests using prospective-action exemption

The Supreme Court of Kentucky ruled today that law enforcement records are subject to open-records requests even if there is a "prospective law enforcement action," and that to withhold records for that reason, a law-enforcement agency must prove that a premature release of the them would hurt its prospective action.

The state's highest court ruled in a case brought by The Kentucky Enquirer, which wants the investigative file about a murder to which the victim's widow pleaded guilty in 2009 but is now seeking a new trial, alleging she had ineffective counsel. The Gannett Co. newspaper, an edition of The Cincinnati Enquirer, has been seeking the file since the case concluded.

The ruling "is a big step forward for us," Kentucky Press Association counsel Jon Fleischaker told the newspaper organization, which supported the Enquirer's efforts. "The court handed down some guidelines for proof in an open-records case which will be very helpful to us, especially in cases like the pending action against the Cabinet for Health and Family Services. Finally, there is very useful language regarding the imposition of attorney’s fees and the circumstances under which the award of attorney’s fees is appropriate.  Those guidelines will be useful for all of us." For Fleischaker's note and a copy of the decision, click here.

The court "found that although the municipality’s response to The Enquirer request for records was inadequate, it has not been shown to have willfully violated the law, and so does not provide a basis for sanctions," Jim Hannah writes for the newspaper. "The Enquirer had asked that the municipality pay its legal bills in the case. Fort Thomas was ordered to make a good faith effort to identify those records responsive to The Enquirer’s request and either provide them to the newspaper or explain with why, under the law, they are exempt. A Campbell Circuit Court judge would then be asked to review what the city claimed was exempt to ensure the law was being followed." (Read more)

Judge tells Owensboro police to give newspaper records of probe into public information officer

Daviess Circuit Judge Joe Castlen ruled Monday that the Owensboro Police Department must give the Messenger-Inquirer newspaper records relating to the department's investigation of its former public information officer.

The judge "said the city must release two documents that say why the police department's Professional Standards Unit began two investigations of [Marian] Cosgrove prior to her resignation in November," James Mayse reports for the M-I. The police department's attorney had argued that the documents were exempt from the Open Records Act because they were "internal" and because Cosgrove resigned before any administrative action was taken against her.

Appeals court allows Christian County cops to keep identifying information on police reports secret

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints," including people charged with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.) Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers," Brown writes. "The newspaper did not dispute the practice of withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating inaction as opposed to action,” he said. “The way you investigate inaction is to go to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests," Brown reports. "This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims. I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.” (Read more)

Harrodsburg police officer stingy with information about fatal traffic accident

Five days after a traffic accident killed a prominent Mercer County farmer who was driving his tractor, a Harrodsburg police officer refused to release most details about it, citing moral grounds and a promise to the family of the 21-year-old driver of the other vehicle that "he would keep their son’s name out of the media until after his investigation was complete," Todd Kleffman of the Advocate-Messenger in Danville reported Wednesday.

Only under orders from Police Chief Billy Whitenack did Officer Jeff Pearce identify the 21-year-old as  William Phillips of Boyle County. Pearce still refused to release the name of a passenger in Phillips' vehicle or say what type of vehicle it was. "On Saturday, Mercer County Deputy Coroner Chuck Bugg said the driver of the second vehicle was airlifted from the scene but was unsure of the person’s identity or extent of the injuries," Kleffman reported. Bugg also identified John "Van" Landrum as the decedent "after Harrodsburg police released a statement saying only that one person died as the result of a two-vehicle collision on US 127."

State police are not involved in the investigation. "Pearce said he would not release any more information on the crash until after his investigation is complete, which he said could take between 10 days and a month," Kleffman reported. "Pearce told a reporter releasing information about the crash went against his morals. He also said he promised Phillips’ family he would keep their son’s name out of the media until after his investigation was complete." (Read more)

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

Some news outlets say state police are too stingy with information

By Terry Anderson
University of Kentucky School of Journalism and Telecommunications

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State police repeatedly violated Open Records Act, attorney general's office says

The Kentucky State Police "repeatedly violated" the state's Open Records Act in a disputed homicide case, the state attorney general's office has ruled. One of the state's top First Amendment lawyers called KSP's actions "ridiculous" and an example of the "habitual condition" of the state police in flouting the intent of the records law.

The ruling involved an open-records request filed in April 2009 by Russell and Sharon Loaring of Owenton. They are the court-appointed executors of the estate of Charlotte Burke of Owenton, who was killed in a January 2009 shooting that left Daniel Cobb wounded. Police concluded that Burke shot Cobb, then killed herself.

Cobb filed a damage suit against Burke's estate, engaging Commonwealth Attorney Jim Crawford of Carrollton, who maintains a private practice, as his lawyer. State police gave Baxter the case file, in what he called a "courtesy," and gave part of the file to another interested party, Glenna Smith, by the KSP. But when the Loarings asked the KSP for records involving the case, the agency refused their request, saying the case had not been closed. Repeated requests over the next year were also refused. The Loarings complained to the attorney general's office, which issued the ruling last week. A KSP colonel referred questions to the agency's legal office, which has not returned calls.

The agency has 30 days to appeal the attorney general's ruling to Franklin Circuit Court.

Louisville lawyer Jon Fleischaker, who largely wrote the state Open Records Act, said the KSP's conduct in this case was the latest example of the agency's attitude toward information requests. "This 'the investigation is not closed' stuff -- that's not what the law says," Fleischaker told the KOG Blog. "They've morphed the law." He said the law allows requests to be refused only if an informant would be identified or if disclosure would materially damage an ongoing investigation. He noted, as did the attorney general's opinion, that the law also clearly states that these exemptions "shall not be used ... to delay or impede the exercise of rights" to information by the public.

The attorney general's decision also faulted the state police for refusing to release pictures of the crime because they were "graphic" and constituted an invasion of privacy. The police offered "no proof, beyond a bare allegation, that the privacy interest of the surviving family outwieghed the public's interest in disclosure," the decision said.

"Their position is, 'We're not going to give you anything we don't want to'," Fleishacker said. "It's the habitual positon of the state police."

The attorney general's office said it could not immediately say how many times the state police have been cited for open-records violations, but offered to collect the information and respond later.

For a full text of the opinion, see Links of Interest at the bottom of the blog.

Judge tells Hopkinsville police to release police records on threats made in city

A circuit court judge has ruled that Hopkinsville officials improperly withheld reports from the Kentucky New Era last year. The mayor told the newspaper the city might appeal the ruling because it could set a bad precedent, but if the Court of Appeals upheld the decision that would give it statewide impact.

The New Era asked Hopkinsville police in September for all reports referencing threats made in Hopkinsville during an eight-month period. "City Clerk Crissy Upton provided more than 400 reports, but withheld others, saying they either involved juveniles or were under investigation," Kevin Hoffman writes for the Hopkinsville daily. The newspaper appealed the denial, and Attorney General Jack Conway ruled all the records should be released. The city appealed, and Circuit Judge Andrew Self ruled for the newspaper, holding the city hadn't shown why one or more exemptions in the Open Records Act applied.

Self wrote that the city's response was “thoughtful based on its interpretation of applicable law,” but refusing to release some reports and redacting identifying information such as race and gender violated the law. “The records requested by the New Era were reasonable, appropriate and consistent with its function as a member of the news media to inform the public of the operations of local government,” Self wrote. “If there is a dispute about which records should be released or withheld, it is incumbent upon the public agency to prove in circuit court why a particular exemption applies. To allow otherwise would be akin to the proverbial fox guarding the hen house.”

New Era Editor Jennifer P. Brown said the law makes public “reports completed by police agencies . . . including arrest citations and the initial incident report that is filed when a citizen calls police to report a crime. . . . If a police agency is allowed to withhold the very proof of its work in the way the city of Hopkinsville wants to withhold these records, it becomes impossible for news agencies and private citizens to understand the types of crimes committed in a community and how police are responding to those crimes. Collectively, police reports offer valuable information about trends and patterns in crime. That information should be available to the public.” (Read more)

Attorney general says Whitley County sheriff must reply to records request from newspaper

The state attorney general's office has ruled that Whitley County Sheriff Lawrence Hodge violated the state open-records law by refusing to respond to a request for a list of auxiliary deputies from the Times-Tribune of Corbin. But the paper's editor, Samantha Swindler, says that as far as she can tell, no list has ever been maintained.

The attorney general's opinion came after Hodge failed to respond to Swindler's request, which had been based on an assault case involving a man claiming to be an auxiliary deputy. Hodge told the state office that the list could be found in the county clerk's office. But Swindler says the clerk has told her that, even though such deputies must be sworn in by a county judge, the clerk was never given any information about anyone being sworn in.

Swindler says the county sheriff's office refuses to talk to anyone from her daily newspaper. The federal Bureau of Alcohol, Tobacco and Firearms is investigating the reported theft of guns, drugs and other evidence from the sheriff's office. The newspaper has published several reports on that and other irregularities involving the sheriff's office, including shortfalls in its budget.

The attorney general's opinion noted that while state law regulates the appointment of special deputies, auxiliary deputies are not mentioned. Nonetheless, the sheriff's failure to respond to Swindler was "legally deficient." For a complete text of the ruling, see Links of Interest at the bottom of the KOG Blog.

Hopkinsville appeals attorney general's decision, fights to keep certain police records secret

The city of Hopkinsville has appealed an attorney general's decision that city officials should give the Kentucky New Era with certain police records that the city says it does not have to disclose.

The newspaper asked city police for reports "referencing any threats made in Hopkinsville during an eight month period," Julia Hunter of the New Era writes. "City Clerk Crissy Upton provided more than 400 reports, but withheld all reports regarding juveniles, any reports under investigation and redacted “personal information” of victims and offenders. The information redacted included gender, race, ethnicity and addresses."

The New Era appealed to the attorney general's office. In December, Attorney General Jack Conway agreed with the newspaper, saying the city has failed to justify its stance with specific arguments. The appeal goes to Circuit Judge Andrew Self.

State police should release first page of report on death investigation, attorney general rules

The Kentucky State Police violated the state open-records law in denying the Kentucky New Era's request for an initial report on the September death of a Mayfield woman, the state attorney general's office has ruled in an appeal filed by the Hopkinsville newspaper.

The police denied News Editor Julia Hunter's request on grounds that the investigation was still active, and KSP lawyer told the attorney general's office that the police do not "create initial offense reports or incident reports," an assertion that appears in boldface type in the decision, perhaps because it was so surprising, or unbelieveable.

Attorney General Jack Conway said the first page of the KSP's standard report form is the functional equivalent of an "initial offense report," which is supposed to be public. "As a general policy matter, this office recognizes that the public has the right to know when crimes are being committed in their community and to obtain information, through the Open Records Act, which would establish whether or not law enforcement agencies are actively investigating those crimes and pursuing wrongdoers," the ruling said, noting that there is "no other initiating document by which the public can be informed of the existence of this investigation."

The decision said "KSP has not demonstrated with specificity the harm that would result from disclosure of any information" in the report, so it should redact any information exempt from mandatory disclosure, then release the report. Hunter noted in her appeal that the police issued a news release that gave basic facts about the incident, so "It seems improbable the release of the report would jeopardize an investigation."

The full text of this and other attorney general rulings issued Tuesday can be found via Links of Interest at the bottom of the KOG Blog.