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.”

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.

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."

Bill that would limit release of child-abuse information appears to be dead with one day left

A bill that could increase secrecy of child-abuse records at the Cabinet for Health and Family Services failed to win passage on the next-to-last day of the legislative session and appears to be dead. "Senate Majority Leader Robert Stivers, a Manchester Republican, said some senators had questions about the bill and it appears unlikely to pass," Deborah Yetter of The Courier-Journal reports.

Senate Bill 126, originally a social-work licensing bill, includes in its Section 10 provisions of House Bill 200 to "create an outside panel of experts to review child deaths and serious injuries, with the goal of better detecting those that result from abuse or neglect. It also would create an outside office to review continuing operations of the state’s child welfare system," Yetter writes. "And it would clarify the definition of child abuse to spell out that any adult living in the home or a sibling older than 16 could be considered a perpetrator of abuse.

The bill would also limit what the cabinet must disclose about child-abuse deaths and serious injuries as a result of child abuse, so the Kentucky Press Association lobbied against it. One portion of the bill would prohibit the cabinet from releasing "the name or any identifying information of a child who has suffered a near fatality, or any information on a sibling or children living in the home of the child who suffered a fatality or near fatality," which is defined as an injury that places a child in serious or critical condition.

KPA counsel Jon Fleischaker, chief author of the state Open Records Act, testified before a Senate committee that if the measure had been law when Amy Dye, a 9-year-old Todd County girl, was killed by her adoptive brother, the public may have never known about her death, or that the brother confessed to killing her.

Westrom told Yetter the cabinet insisted on the language. The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information, and the cabinet has appealed. For Yetter's story, click here.

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

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

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

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

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

House passes bill allowing county clerks to charge up to 50 cents a page for copies of any record

The state House has passed and sent to the Senate a bill that would allow county clerks to charge up to 50 cents per page for paper copies of any record and let them ban scanners, cameras and other devices that could be used to make electronic copies. An attorney general's opinion limits the charge to 10 cents per page unless the actual cost of producing the copy is greater.

The Kentucky Press Association supported a floor amendment Friday to remove the relatively short provision from the bill, a lengthy measure that otherwise deals with delinquent taxes. The floor amendment lost 73-15 and the bill passed 77-13, indicating that members of the Kentucky County Clerks Association had lobbied it well. For roll-call votes, click here.

KPA Executive Director David Thompson said the group is working with the clerks' association on an amendment "that would make the language specific to certain recorded documents and not generally all public records. Our plan is to amend it in the Senate. We do not want to kill the bill because for 99 percent of the legislation, it's changes in the property tax/delinquent taxes that county clerks need. We have no problem with that part. So we continue seeking changes only in one section that will make it acceptable to the public and the press and then we'll leave them alone."

The importance of the bill to the clerks could be indicated by its title, "An act relating to governmental revenue functions and declaring an emergency." Such a broad title could make it a vehicle for other types of amendments.

Ironically, the bill passed during Sunshine Week and on the 251st birthday of James Madison. For a copy of it, click here.

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.

Press association opposes family-court bill that would set up prior restraint confrontations

The Kentucky Press Association is opposing a proposal that purports to open the state's family court system but would actually fall far short of that promise.

House Bill 239, which was approved last week without dissent and sent to the Senate, would set up a pilot project in state courts that deal with dependency, neglect and abuse proceedings or termination of parental rights. The press association has for years encouraged the state to open family court to the public and the media.

But KPA Executive Director David Thompson, in an email to the association's members, characterized the project as "more of a closed court, once it's open," and said the proposal clearly would violate the First Amendment prohibition of prior restraint on news coverage.

Under the plan approved by the House, any person – a private citizen or a journalist – attending a hearing would be prohibited from naming any individual involved in the court proceeding or giving any information that would lead to the identity of any individual. That would include identifying a witness who testified at the proceeding. That prohibition would be in force "outside of the court room."

The plan also allows anyone attending the hearing to take written notes, but it gives the judge or court official the right to inspect those written notes before the notes are taken from the court room.

"There is no openness when the public and the media are gagged, and written notes sanitized by court officials," Thompson said.

The Supreme Court of the United States ruled in 1976 in Nebraska Press Association v. Judge Stuart that a judge's order that journalists who attended a preliminary hearing could not report anything they heard until the trial started was an unconstitutional prior restraint.

The court in 1989 in Florida Star v. B.J.F. ruled unconstitutional a Florida law that prohibited the publication of a rape victim’s name by the news media.

"Numerous legislators have referred to opening family courts as a way to give more transparency to the public about issues involving the Cabinet for Health and Family Services. Nothing needs to be said about how important that is. But House Bill 239 has not become that vehicle," Thompson wrote.

Legislature puts salaries and expenses online

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

Legislature sends Beshear bill to allow superintendents to be evaluated in secret

Only Gov. Steve Beshear stands between the law books and legislation that would allow Kentucky school boards to evaluate superintendents in secret. The state Senate unanimously gave final passage yesterday to the House-amended version of Senate Bill 178. Now Beshear can veto it, sign it into law or allow it to become law without his signature.

"Beshear spokeswoman Kerri Richardson said the governor would carefully review the bill," The Courier-Journal reports. "It requires that final evaluations be discussed and voted on in public. School boards also would have the option of holding the preliminary sessions in public." The bill would reverse recent court rulings based on the state Open Meetings Act, which allows public agencies to discuss personnel matters in secret only if the discussion "might lead to" the hiring, discipline or dismissal of an employee or student.

Louisville lawyer Jon Fleischaker, chief author of the law and attorney for the Kentucky Press Association, told The Courier-Journal, “I think it’s bad for the commonwealth. It’s been the law for … 35 years that these kinds of things would be done openly.” (Read more)

In an op-ed distributed to Kentucky newspapers, Mike Farrell, director of the Scripps Howard First Amendment Center at the University of Kentucky, writes "Kentuckians ought to be asking their state legislators why they are more concerned with protecting school board members and superintendents than watching out for the rights and interests of taxpayers."

On its opinion page, The State Journal of Frankfort has a strong editorial and cartoon, but the online version is available only to subscribers. "This bill is a big step backward for the open conduct of public business," the editorial says. "Boards and superintendents should simply get used to the inconvenience of honesty in public places."

Susie Laun of The Advocate-Messenger in Danville has a story in which several school officials in the area say the legislation "will allow evaluations to go back to what boards used to do." They argue it would make the evaluations more thorough, comfortable and productive.

Bill would allow school boards to evaluate superintendents in closed meetings

School boards could evaluate superintendents behind closed doors, under a bill the Kentucky House approved today 67-29. Senate Bill 178 amends KRS 156.557 to require "any preliminary discussions relating to the evaluation of the superintendent by the board or between the board and the superintendent prior to the summative evaluation shall be conducted in closed session." Evaluations would still be presented in an open meeting. The bill, which goes back to the Senate for approval of an unrelated amendment, would reverse recent attorney-general and court decisions.

During the House Education Committee meeting Tuesday, Sara Call, a member of the Frankfort Independent Board of Education, testified her board had twice held closed-door evaluations with the superintendent, which was a violation of current state law, and said superintendent evaluation needed to be conducted in a closed meeting to allow for 'frank, honest and sometimes painful' conversations. "It’s sometimes difficult to be totally honest in front of the press," she told the committee, Stephenie Steitzer of The Courier-Journal reported.

The Kentucky Press Association has voiced strong disapproval of the bill, arguing the evaluation process of the highest-ranking school system employee should be done in open. "We strongly, strongly recommend that you do not pass this bill," Ashley Pack, general counsel for KPA, told the committee.

Committee OKs bill for openness in family courts

UPDATE, March 1: The full House passed the bill but its prospects in the Senate are unclear.

A Kentucky House committee has passed a bill that would open some family court proceedings to the public in a pilot project.

The House Judiciary Committee voted 9-1 to approved the bill, House Bill 407, sponsored by Rep. Susan Westrom of Lexington. The measure allows the Kentucky Supreme Court to open to public scrutiny seven family courts and monitor the results for four years. However, while the public would be allowed to attend court proceedings, records would remain secret and no audio or video recordings would be permitted. Judges would be allowed to decide whether to participate in the pilot project.

State Supreme Court Chief Justice John Minton has favored more transparency in family and juvenile courts, but the legislature and court system have been slow to act, despite a series of reports detailing problems in the state system.

"It does lift the veil of secrecy," Westrom told the Louisville Courier-Journal. "It does increase the public's confidence in our justice system."

Increasing transparency in family courts is a trend across the nation, according to Patricia Walker FitzGerald, chief family court judge of Jefferson County, who testified before the committee. FitzGerald said about 30 states allow some public scrutiny of family courts.


The bill now awaits action by the entire House.

Senate passes bills to open legislative finances, associations of local governments

The Kentucky Senate last week passed without dissent two bills that would make the actions of state government and associations of local governments more open. The bills are now in the House.

Senate Bill 40, sponsored by Republican Sen. Damon Thayer of Georgetown, would require all state agencies and universities to put their spending records on line by Jan 1, 2011. The bill calls for monthly updates of the amount and description of spending, including any documentation available electronically, for the main databases, while the state's electronic accounting system would be updated weekly.

The bill would do for the executive branch much the same done by the OpenDoor Web site and searchable database that the administration of Democratic Gov. Steve Beshear put on line last year. The judicial branch recently joined the system; the bill would effectively put the system into law and make the legislative branch part of it.

Senate Bill 87, also sponsored by Thayer, would extend the same requirements to the Kentucky League of Cities and the Kentucky Association of Counties, and require them to follow state purchasing rules and "adopt ethics and anti-nepotism rules," Jack Brammer reported for the Lexington Herald-Leader. The paper's reporting on expenses of the two groups led to the resignations of both executive directors.

KLC and KACo are funded by dues and insurance premiums paid by local governments. The bill would make clear that such groups are subject to open-records and open-meetings laws, with certain exceptions for their insurance businesses, and require an annual audit of each group’s finances, with the state auditor given access to the findings. House Speaker Greg Stumbo has said he expects the bill to pass the House. (Read more)

Senator reintroduces bill on 911 calls

A Northern Kentucky state senator has reintroduced a bill for the upcoming legislative session to prohibit the broadcast of 911 recordings.

Sen. John Schickel, R-Union, has argued that the bill would protect the identity of people making 911 calls, although identifying information would still be available in transcripts.

The Society of Professional Journalists published a letter Tuesday urging a similar bill in Ohio be withdrawn, saying it would diminish the news media's ability to report on breaking events.

"If audio recordings are banned from the public airwaves then it will be virtually impossible for citizens to hear how calls are being handled and effectively hold emergency response centers accountable," the SPJ letter said. "Ohio courts traditionally have ruled in favor of disclosure of 911 tapes for all to hear for good reason - it ensures the public trust in its institutions regarding the safety and welfare of citizens."

When Schickel introduced the bill in the 2009 session, he said he wanted to prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final pleas of victims. The bill passed the Senate in the 2009 session but failed to pass the House.

Last year, the Kentucky bill was opposed by the Kentucky Press Association and the Kentucky Broadcasters Association, even though both organizations noted that such calls are rarely actually broadcast. In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike.

The bill, SB 308, would "restrict the availability of recordings of 911 communications to releases by court order," but would allow written transcripts.

Key lawmaker, advocacy group back opening records of severe child abuse and neglect

Kentucky, which leads the nation in deaths of abused and neglected children, should open its records in such cases and those involving severe injuries, the chairman of the state House Health and Welfare Committee and the head of Kentucky Youth Advocates said yesterday.

"State Rep. Tom Burch, D-Louisville, said Friday he will introduce legislation in the 2010 General Assembly that would require state child-protection officials to release their records on children who died or were severely injured as a result of abuse or neglect," reports the Lexington Herald-Leader. Burch told the newspaper that it's possible state employees "didn't do their job right or they had heavy caseloads and didn't have time to look at the case sufficiently."

House Speaker Greg Stumbo told the paper, ""The House is more than willing to look for ways to make life safer for our youngest citizens, and if Rep. Burch believes this is an effective approach to take, I expect the chamber will be supportive of his efforts." Stumbo and Burch are Democrats; the Senate is controlled by Republicans, and Senate President David Williams said he would have to see the legislation before commenting.

KYA Executive Director Terry Brooks, said his group would support the bill and a separate measure to open at least some proceedings in Family Court. "The current undue emphasis on confidentiality only hides issues in the child-welfare system," he told the Herald-Leader. "Broader public exposure is a beginning step to fixing many of the issues that afflict child protection. It is a tough proposition but the right balance can be found between privacy rights, system accountability and disclosure for the sake of system improvements." (Read more)

Chief Justice continues to support legislation to open some Family Court proceedings

Kentucky Chief Justice John Minton Jr. would support another effort by the legislature to open family court proceedings to the public, according to a statement from his office to Kentucky Citizens for Open Government.

Reacting to The Courier-Journal's reporting on Family Court proceedings in Jefferson County, Minton's statement said he supported Judge Joan Byer's decision to allow access to a Courier-Journal reporter with the permission of the parties and the condition that no one be identified. Under court rules, Family Court proceedings are normally closed to the public, because they often involve juveniles, but judges have discretion to open them.

“We have a number of judges who work daily in the system who have openly expressed their support for allowing the public to see what is going on in certain types of juvenile proceedings," Minton said. "These judges are attempting to follow model programs that have been successful across the country and to bring best practices to the courts of Kentucky. I support the work of these judges and encourage their efforts to provide greater accessibility."

Minton noted that the General Assembly declined last year to pass a bill setting up a pilot project to open some Family Court proceedings. "I would support similar legislation if introduced again,” he said.

UPDATE, Dec. 19: Yetter picked up on Minton's statement to KCOG and the KOG Blog and wrote a front-page story quoting him and legislators on the issue: "Rep. Susan Westrom, D-Lexington, a co-sponsor of the 2008 bill, said she’s willing to try again given the extent of problems that appear to beset the state’s child-protection system. Opening the courts might be a step toward shedding some light on the state’s overall system of protecting children from neglect and abuse, she said." Yetter notes, "Half the 50 states — including Indiana, Tennessee and Ohio — permit some access to juvenile and family courts, according to a 2008 joint report by the Children’s Advocacy Institute at the University of San Diego Law School and First Star, a Washington child advocacy group."

Bill would apply records law to officials' groups

A bill making any organization whose employees get state retirement benefits will be subject to the Kentucky Open Records Act has been prefiled by Rep. Arnold Simpson, D-Covington, and the Lexingon Herald-Leader reported Thursday it seems likely to pass when the legislature convenes next year.

The newspaper said the bill stems from its recent investigations into lavish spending at the Kentucky League of Cities and the Kentucky Association of Counties that led to the resignations of the leaders of both organizations. Although both organizations had surrendered records to the paper, they had claimed they were not subject to the records law. Each agency receives more than 25 percent of its budgets from public funds, the law's threshold for public inspection. Employees of both agencies receive state retirement benefits.

Simpson said at a recent public hearing that any group that received even "an iota" of public funding should release such records. The Herald-Leader said that leaders in both houses of the legislature had indicated they favored the bill. For the full story on Simpson's proposal, click here.

2009 legislature does ‘very little damage’ on news organizations' issues

The 2009 session of the Kentucky legislature did “very little damage” on issues of interest to the state’s newspapers and broadcast media, according to David Thompson, executive director of the Kentucky Press Association.

Thompson will report to KPA members that the General Assembly passed one bill that KPA lobbied against during the session that concludes March 27. That bill imposes a 6 percent sales tax on website subscriptions. However, that will affect only about 10 percent of KPA members, he said, because most newspaper websites are free. Gov. Steve Beshear has signed the legislation.

“You win some, lose some and some get shut out,” Thompson said in an interview with the Kentucky Open Government Blog.

He noted that several bills that both KPA and Kentucky Broadcasters Association were backing did not get passed this session, but most will be brought up again in 2010. That includes a bill to set access rules for journalists at polling sites on election day. Though journalists have a constitutional right to such access, Thompson said, under current vague privacy laws election officials sometimes block them from the voting room or prevent pictures from being taken. The bill failed not because of opposition, but because of time constraints, Thompson said.

One bill that the news media organizations opposed was successfully blocked – a proposal to forbid broadcast of 911 call recordings. “But it will be back again next year and every year,” Thompson said. The bill’s sponsor, Sen. John Schickel, has also said he will keep trying.

“They did very little damage,” Thompson summed up. “And that’s our approach – more defense than offense.”

Two press-freedom bills fail to pass

Two press-freedom bills are among those being tossed aside with just two limited-agenda days left in this year's regular legislative session. But the Kentucky Press Association vows to revive both next time around.

David Thompson, KPA executive director, said in a message to the group's members that SB 130, which would ensure access to voting places for journalists and photographers, had been agreed on by Secretary of State Trey Grayson, the State Board of Elections, the Kentucky Broadcasters Association and KPA. It passed out of the Senate State and Local Government Committee, then "politics showed up" in the Senate Republican caucus, Thompson reported. The bill wound up in another committee, where it remains.

House Bill 43 would have guaranteed freedom of speech and press for high school student journalists, with limitations, and would have immunized school boards from criminal or civil liability for student publications. But Thompson said it "didn't come close to getting a hearing" in the House Education Committee.

Thompson promised that KPA will lobby for both bills in 2010. The legislature may have a special session later this year but it is expected to be limited to budget-related issues. It returns next week to reconsider any vetoed bills and perhaps some held up by House-Senate disagreement.

Press association criticizes bill on new investigative agency

A bill to create another investigative arm of the state legislature has drawn criticism from the Kentucky Press Association over its secrecy provisions.

The bill, introduced in the House of Representatives by Speaker Greg Stumbo and in the Senate by President David Williams, would set up the General Assembly Accountability and Review Division. The agency would conduct investigations, audits and reviews of all public agencies. The bill provides that proceedings of the new office would not be subject to the state's open record law and requires the cooperation of other state agencies and employees, including the attorney general and the auditor.

"Records addressed in this legislation, in our opinion, should be open to the public," Ashley Pack, general counsel for the KPA, told the Courier-Journal on Monday. "This creates an additional exemption to the Open Records Act, and adding exemptions should be done with great care."

Williams, the Burkesville Republican who is sponsor of SB 188, said the law is needed because the legislature must have the ability to investigate when no one else will. "We can't wait for a separate branch of government … to audit or not to audit."

Williams said the legislature's investigative arm would be treated like a commonwealth's attorney, county attorney or attorney general when it comes to the open records law. That is, he said, investigative records would be exempt.
However, current law covers records of the state police and attorney general's office. Records of investigations by those agencies are open, subject to exemptions within the law, when an investigation is closed.

Read the Courier-Journal story at http://www.courier-journal.com/apps/pbcs.dll/article?AID=2009902240417

For a full text of the proposal, SB 188 and HB 540, go to http://www.lrc.ky.gov/record/09RS/record.htm