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

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

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

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

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

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

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

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

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

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

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

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

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

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

Transparency Conference at UK Oct. 19-20

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

Good government measure finally moves ahead

A dispute between the two houses of the Kentucky General Assembly apparently has been settled, paving the way for passage of legislation that will require two state government associations to open their operations to the public.

The House of Representatives on Friday approved language that would make the Kentucky League of Cities and the Kentucky Association of Counties subject to open records and open meetings laws, give their boards a code of ethics and allow the state auditor to review their books, according to the Lexington Herald-Leader. The bill also would require the organizations to post their expenditures online and adopt policies on pay and bids.

Passage was delayed by wrangling between the two houses. Similar bills were introduced by Sen. Damon Thayer, R-Georgetown, and Rep. Arnold Simpson, D-Covington. Simpson told the Lexington Herald-Leader that state Auditor Crit Luallen had suggested most of the provisions of the legislation. Each house had passed a version of the bill, but then the process stalled. The House passed a version 94-0 on Friday, and the Senate is expected to go along.

Reporting by the newspaper during the past year uncovered extravagant spending by officials of the two agencies. The revelations led to the resignations of both executive directors, scathing audit reports by Luallen, and calls for reform by legislators and local officials.

The League of Cities and Association of Counties 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.

(Read more)

Senate commttee requires transparency in use of Governor's mansion, aircraft

A state senate committee has moved to transform into law an executive order issued by Gov. Steve Beshear two years ago requiring more transparency in the use of state aircraft and the executive mansion for non-official purposes.

The State and Local Government Committee approved Senate Bill 82, sponsored by Sen. Damon Thayer of Georgetown. It would require the governor to disclose use of the aircraft and the mansion for such things as political fundraisers to the Executive Branch Ethics Commission. The bill also requires disclosure of the governor's legal defense fund and would prohibit businesses bidding for state contracts from making "substantial" campaign contrtibutions to a statewide candidate within 18 months of applying for a contract. The bill does not apply to legislative candidates.

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)

Foundation gives $2 million for open-records battles

Battles for freedom of information often stop for lack of financial ammunition. Now help may be available, thanks to a three-year, $2 million grant from the John S. and James L. Knight Foundation to the National Freedom of Information Coalition.

The grant will create the Knight FOI Fund, which "will fund up-front costs such as court costs, filing fees, depositions and initial consultation fees, if attorneys are willing to take cases that otherwise would go unfiled," NFOIC announced. The grant application was prompted by an NFOIC survey that found almost 80 percent of its members' lawsuits to open public records in their states had become less numerous, and 60 percent said it had dropped dramatically. And 85 percent predicted that FOI litigation would drop dramatically over the next three years. NFOIC blamed "the economic crisis and the evolution of the news media" and cited several specific examples in its release.

Electronic campaign filing bill may make it yet

A bill that would require statewide candidates to file campaign finance reports electronically is "not completely dead," and proponents are still hoping the House will take it up during the final two days of the legislative session.

Assistant Secretary of State Les Fugate told the Kentucky Open Government Blog that while House leaders had indicated they had no problem with Senate Bill 62, they had first told the Senate that there were too many amendments attached to get the bill voted on this session. But Fugate said the Senate then stripped off the amendments and sent it back as House Bill 325, so that all that it needs is House concurrence.

"We still have hope," Fugate said. Legislators will reconvene on March 26 for two days to complete their work for this session. House Speaker Greg Stumbo said this week that the House might open the agenda to include concurrence with Senate amendments to House bills.

The Lexington Herald-Leader, in an editorial Thursday, called for passage of the bill. "It's time to do better," the paper said. It noted that, except for the lack of electronic filing, Kentucky had been given "decent marks" by the Campaign Disclosure Project, which monitors and grades state governments on transparency. Similar bills have been passed both House and Senate in previous years, but not in the same session.

Sunshine Week starts Sunday, March 15

Sunshine Week, the annual observance to promote openness in government, is March 15-21. The project has many resources for newspapers and other media, including ads, graphics and opinion columns by Sen. Patrick Leahy (D-Vt.) on recent Freedom of Information victories and what still needs to be done; Frank LoMonte of the Student Press Law Center on educators' misapplication of federal privacy laws; Jerry Stephens of Edmond, Okla., whose son is heading to Afghanistan, explaining why he believes the media should have access to the homecoming of soldiers killed in action overseas; Ellen Miller of the Sunlight Foundation on senators' failure to make their campaign-finance reports searchable, and state Sen. Dan Greenberg (R-Ark.) explaining why criminal histories of officials should be public. For more details, click here.

The latest open-records rulings

The following Open Records Decisions were issued by the Office of the Attorney General Feb. 9-13:

1. 09-ORD-025 (Boyd County)
Records in the custody of circuit court clerks are properly characterized as court records and are not governed by the Open Records Act. The Attorney General has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Boyd Circuit Court Clerk cannot be said to have violated the act.

2. 09-ORD-026 (Graves County)
Although the record contains insufficient evidence to conclusively determine whether it violated KRS 61.880(1) in the disposition of a request for records, Graves County School District clearly violated KRS 61.872(1) in referring requesters to its website for a copy of its policies and procedures manual rather than affording them an opportunity to conduct on-site inspection or mailing them a copy of the manual upon prepayment of copying and postage charges.

3. 09-ORD-027 (Franklin County)
Insofar as the Cabinet for Health and Family Services initially failed to briefly explain how the cited exception applied to the records being withheld, the agency violated KRS 61.880(1); however, the cabinet provided the investigative records once final action was taken and the records were no longer preliminary. Redaction of social security numbers, dates of birth, home addresses, race and gender information, interview questions and answers, information regarding unsuccessful applicants, and college transcript information on the basis of KRS 61.878(1)(a) is consistent with governing precedents.

4. 09-ORD-028 (Oldham County)
City of LaGrange committed a procedural violation of the Open Records Act by not responding to a request within three days. Assuming the request was for a commercial purpose, the city’s fee of $4 for property tax information was reasonable under KRS 61.874(4)(a) as it was used to offset the city’s high cost of acquiring the records. If the purpose was not commercial, however, the fee should not exceed ten cents per page. The hostile attitude of a person requesting records does not allow the agency to impose an unreasonable burden under KRS 61.872(6).

5. 09-ORD-029 (Franklin County)
Decision adopting 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records and those which it does not possess; a public agency cannot produce that which it does not have nor does a public agency have to "prove a negative" in order to refute a claim that certain records exist under the rule announced in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333, 340-41 (2005). In providing the requester with the name of the custodial agency, the Kentucky State Police substantially complied with KRS 61.872(4).

6. 09-ORD-030 (Franklin County)
Because requested investigative records related to an ongoing collateral attack on a criminal conviction, in which the requester was seeking to obtain post-conviction relief from the underlying conviction, which was therefore not final for purposes of the Open Records Act, the Kentucky State Police properly denied requests under authority of KRS 61.878(1)(h) and KRS 17.150(2).

Full texts of the opinions can be found at http://ag.ky.gov/civil/orom/list.htm.