Sun gives police letter alleging schools' laxity about weapons, but honors request for anonymity

A newspaper in a Kentucky county that had one of the first mass school shootings gave police a letter it received from a student alleging lax enforcement of rules about weapons on campus, but refused to identify the student, who asked to remain anyonmous. The Paducah Sun gave the McCracken County Sheriff's Department a copy of the letter about Reidland High School on Monday "after a reporter called the department . . . although the name of the author was not included," the paper reported Tuesday in a non-bylined story.

Reidland High School

The story quoted from the letter: “Someone who sits in class with us, who has brought weapons twice ... has yet to be punished for anything.” It "does not mention the person’s name," the story says. "It adds that the person has plotted attack sites around the school area and asks why school administrators are afraid to enforce school rules. The letter does not contain any specific threats of violence, just the student’s observations."

After being told about the letter, police and school officials decided to close the school and the attached Reidland Middle School. “School will not be in session until the threat has been adequately investigated,” Sheriff Jon Hayden wrote on his department's Facebook page. The paper's story is here; the letter is here.

Reidland (A) and Heath (B) schools (Google map)

On Dec. 1, 1997, a student at a high school on the other side of Paducah fired on a group of students at a prayer meeting, killing three and injuring five. He pleaded guilty but mentally ill and was given life in prison with the possibility of parole in 25 years. "A federal appeals court panel is considering whether Heath High School gunman Michael Carneal should be allowed to take back his guilty plea and get a trial," Angela Hatton of WKMS in Murray reports.

The Wednesday, Dec. 19 Sun has a copy of the letter, a story about an unnamed teacher who says she prompted it, and a column from Editor Jim Paxton explaining the paper's handling of the matter: "Newspapers by statute in Kentucky have a right to protect the identity of their sources, just as law enforcement agencies do. Absent that ability, we would never be able to develop the type of information that is reported in today’s lead story about the school threat issue, information we believe most readers will agree sorely needs to see the light of day." Paxton said the paper asked the student's parents if he could speak to the sheriff's department if his confidentiality was protected. "The parents expressed reservations, noting their son is a juvenile. We advised investigators of the parents’ position, but said we would continue to try to broker a resolution that would allow investigators to speak to the student directly."

Paxton says a press release from the sheriff's department at 10:30 p.m. Monday "was at best disingenuous and at worst defamatory. The release was crafted in such a way as to make it appear that the newspaper had received a letter from an individual who had directly threatened the high school and we were refusing to tell authorities his name citing 'journalistic ethics.' The release didn’t say that specifically, but it was clearly intended to be interpreted that way, and it was." That release appeared to be the basis for a story by WPSD-TV, also owned by Paducah-based Paxton Media Group. The county school superintendent sent a similar message to school-district employees.

"The effect was as officials planned," Paxton writes. "People called to cancel subscriptions. Advertisers called threatening to pull out of our newspaper. Profane comments poured onto our Facebook page." And though the paper's First Amendment lawyer said it had an absolute right to withhold the student's name, "we continued working to broker a resolution, and later that morning, our source, his parents, and an adult employee of the school system who we learned was our source’s source agreed to meet here at the newspaper with Sheriff Hayden. While we were in the process of setting that meeting up, a sheriff’s detective showed up in our offices with grand jury subpoenas demanding that Executive Editor Duke Conover and yours truly appear in less than two hours before a grand jury along with the letter disclosing the identity of our source. (In what can only be described as a show of belligerence, the sheriff’s detective undertook to 'read' the subpoena to Conover in Conover’s office while Conover was engaged in a phone call. First, that’s hard to do, since subpoenas mostly have boxes and checkmarks on them. Second, legally, it has no effect. Subpoenas are simply supposed to be delivered, and sheriff’s deputies are well aware of that.)" Paxton, a lawyer, writes that the subpoenas were illegal and "purely an effort to intimidate a news organization. We doubt Kentucky’s attorney discipline board will smile on this exercise."

In the end, Paxton reports, "Our source and others familiar with this matter did meet in our offices with the sheriff, and as today’s lead story indicates, much was learned. Interestingly, some of what was learned was very unflattering to school administrators and others in the school system. Meanwhile, we as a newspaper remain puzzled by the scorched earth approach taken by local officials involved here." (Read more; subscription may be required)

Sheriff Hayden issued a press release Tuesday night saying that the alleged threat was a misinterpretation of two students' conversation about explosions in a video game, which had been investigated and cleared. "Had investigators been provided contact information sooner, this incident could have been cleared up much quicker," Hayden said.

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.

City council can't act on an issue because too many members have a conflict of interest

The Lancaster City Council found itself with a dilemma when three of the six members and the mayor had to recuse themselves from discussing an issue involving a school because they work for the county schools.

Garrard County Superintendent Donald Aldridge appeared before the council to discuss a leaky water pipe that "had cost the school district thousands of dollars," reports Ben Kleppinger for the Danville Advocate-Messenger. City Attorney Leonard Smith pointed out that three members of the council are teachers in the school system and the mayor is the school district’s community education director and they should all recuse themselves from the issue. "My recommendation is to not even ask questions, because you could have the appearance of conflict by asking the wrong question," Smith told the council.

Superintendent Aldridge was asking the council for a budget adjustment to cover the expense of a pipe that had leaked 700,000 gallons of water into the ground before being fixed. Smith told Aldridge and the council that Aldridge did not have any basis to make a change. "There’s nothing we can do about it and the school board’s stuck in the middle," said Smith.

With the water-bill issue behind him, writes Kleppinger, Aldridge asked Smith how he could ever bring an issue to the council if the council is rendered powerless by his presence. "Maybe you could fire two or three teachers and that will fix your problem," Smith joked, before explaining that other issues might not be as controversial and the council could handle them without having to recuse themselves. (Read more)

AG lets superintendent keep calendar private; tells PVA to release employees' vehicle records

Attorney General Jack Conway has ruled that the appointment calendar of the Fayette County school superintendent is not an open record. The school system successfully relied on an open-records decision that allowed Brereton Jones to keep his appointment ledger secret when he was governor in 1991-95.

The case began when Brenda D. Allen requested the calendar of Supt. Stu Silberman from Jan. 1, 2009, through Nov. 22, 2010. Allen said the calendar must be archived for two years and the "issues of confidentiality" that a governor might have do not apply to a school superintendent. Conway disagreed, citing the Jones case, which said calendars are "preliminary drafts" and "are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection." Conway also found that a superintendent has issues of confidentiality described in the federal Family Educational Rights and Privacy Act when meetings concerning individual students occur.

Conway ruled for open government in another case, saying the Jefferson County property valuation administrator improperly relied on the federal Drivers Privacy Protection Act in denying Kevin Wilkins’ Dec. 7 request for “a list of locations of all real and personal property” owned by four named employees. Conway's opinion, drafted by Assistant Attorney General Amye Bensenhaver, cited a Connecticut court decision that tax assessors are not covered by the privacy act, and noted that PVAs don't have records with the information protected by the federal law, which prohibits release of personal information that identifies someone, such as a driver license, Social Security or telephone number. (Read more)

Conway's office lists all open records opinions since 1993, in chronological order.

Beshear signs superintendent-secrecy bill

Gov. Steve Beshear yesterday signed into law Senate Bill 178, which will allow school boards to deliver evaluations of superintendents behind closed doors. Opponents of the bill had asked Beshear to veto it. The law, which takes effect July 14, will reverse recent court decisions. See previous coverage below.

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.

Judge: Board improperly closed superintendent's evaluation, must pay paper attorneys' fees, fine

The Jefferson County Board of Education violated the Kentucky Open Meetings Act when it decided to conduct Superintendent Sheldon Berman's annual evaluation behind closed doors, Jefferson Circuit Court Judge Irv Maze ruled Monday. "While it may have been more convenient for the Board and Superintendent to have this discussion held in private," the reasons for doing so given by the board "do not justify closing the meeting to the public."

The Courier-Journal reported Tuesday that the board had decided not to appeal the ruling. Maze cited a 2008 ruling in the case, by Attorney General Jack Conway, that such evaluations must be public unless they might lead to discipline or dismissal. The board tried to make such a justificiation, but only after it had already decided to close the meeting. Ruling the action a "willful" violation of the law, the judge ordered the the board to pay attorney's fees to the newspaper, which had to pay lawyers to deal with the board's appeal of Conway's ruling, plus a $100 penalty.

"This Court is mindful that it is often difficult to discuss matters such as these in public," Maze wrote, but exceptions to the open-meetings law "should be obvious and not manufactured in order to work around the law." While not controlling outside Jefferson County, Maze's decision upholds an attorney general's decision that does have statewide import, so it's a good tool for reporters and editors anywhere in Kentucky to use in arguments against closing such meetings. To read the decision, click here. To download it as a Word document, also from the Web site of the Institute for Rural Journalism and Community Issues, click here.

AG: Public agencies' settlements are public

Public agencies cannot keep settlement agreements in court cases confidential, Kentucky Attorney General Jack Conway reminded officials in an opinion issued Sept. 1.

The opinion, which is legally binding unless appealed to circuit court, found the Regional Water Resource Agency in violation of the state's Open Records Act. The case involved a settlement with Ed Shelton of a lawsuit he filed after his sewer line collapsed. Owensboro Messenger-Inquirer reporter James Mayse had requested a copy of the agreement, but was denied by the agency, which cited a confidentiality clause in the settlement.

The attorney general's office cited a 1997 decision of the state Supreme Court and earlier attorney-general decisions in ruling that such a clause "does not create an inherent right to privacy superior to the significant public interest in disclosure of such a record."

The office also ruled against the Powell County School District, saying its refusal to supply records on a school activity fund was "procedurally deficient" and "substantively incorrect." The opinion said the district did not give reasons for failing to reply within the three days required by law to a request by Karen Rose, and that the district's claim that the records were "general correspondence" which could be destroyed in two years was wrong.

The decision said the records had to be kept for three years and an audit performed before they could be destroyed. However, it said the attorney general's office "cannot afford Ms. Rose the relief she seeks" because the records no longer exist. He did urge the school district to review open records authorities on "proper records management."

For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.

AG slaps Jefferson school board, KCTCS for secrecy surrounding executive evaluations

The Jefferson County Board of Education can't hide from "unwanted or unpleasant public input" in evaluating Superintendent Sheldon Berman, Kentucky Attorney General Jack Conway ruled Tuesday.

The ruling said the board violated the state's open-meetings law when it made its annual evaluation of Berman in a closed session July 29, despite a 2008 attorney general's opinion that such evaluations must be made publicly unless they might lead to discipline or dismissal. Berman's evaluation was positive, though the board urged him to improve his interaction with the board, the community and parents.

The decision came in response to a complaint by The Courier-Journal, which disclosed the ruling in a story today. Board chair Debbie Wesslund told the Louisville newspaper that she disagreed with the opinion, and would consult with the board and lawyers in deciding whether to appeal. The 2008 decision, which involved a similar case in Spencer County, is under appeal in circuit court.

In a similar case, Conway issued a ruling Tuesday that the Kentucky Community & Technical College System violated the Open Records Act when it refused to give its evaluation of former president Dr. Paula Gastenwald to the Owensboro Messenger-Inquirer. Gastenwald was removed as president by the KCTCS board earlier this year. The attorney general said the public's interest in the case outweighed any privacy interst of Gastenwald. "The public is entitled to know why Dr. Gastenwald was removed," the opinion said.

Full texts of attorney general opinions in Open Meetings/Open Records cases can be found through Links of Interest at the bottom of the KOG Blog.

Attorney general tells Madison County to release more records about antenna tower

Madison County officials who invoked the threat of terrorism and protection of a vendor’s proprietary information to avoid releasing records were wrong, and failed to prove their case on either issue, Kentucky Attorney General Jack Conway ruled this week.

Conway issued the decision, which has the force of law, in a case involving a request for public records on the construction of a 300-foot antenna tower on county land near a residential subdivision. The county fiscal court and emergency management office had released some of the records requested by Thomas Vergamini, but refused to release others, which they claimed included information marked “proprietary and confidential” by the unidentified vendor. The two offices also stated they would “not provide any records that have a reasonable likelihood of threatening public safety by exposing vulnerability in this emergency communication system: Whether it is in preventing, protecting against, mitigating, or responding to a terrorist incident or disaster.”

Conway ruled that the officials could not claim exemption from the Open Records Act with a simple statement, but had to show a “real threat” of harm to the vendor, and to the public. They failed to do so, Conway said in finding for Vergamnini. The officials now have to release the records or appeal to circuit court.

The opinion was one of several released recently by the attorney general’s office. Others included:

OAG 09-005: Former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and of the Kentucky State Police Laboratory, are not entitled under Kentucky law to hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth.

09-ORD-098: Franklin County School District failed to establish that an open-records request was inadequate and placed an unreasonable burden on the district. As described, records identified in district's admittedly limited search were excluded from public inspection by KRS 61.878(1)(i), (j), (k), and (l), but it is incumbent on the district to conduct a broader search of its paper and electronic files to locate any remaining records.

09-ORD-099: Decision adopting 07-ORD-188 and 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records or those which the agency does not possess; a public agency is not required to produce nonexistent records, nor must a public agency “prove a negative” in order to refute a claim that certain records exist. In the absence of a prima facie showing that additional records exist in the possession of the Johnson County School District aside from those already provided, its disposition of the request is affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky. 172 S.W.3d 333, 340-41 (2005), and prior decisions of this office.

09-ORD-101: Decision adopting 07-ORD-188 and holding that in the absence of a prima facie showing by requester that responsive records exist that have not been furnished, Transportation Cabinet properly disposed of request by providing requester with all such records in its custody and notifying him that no additional records exist. Attorney General's office is not the proper forum for dispute resolution relating to discrepancies in records produced for inspection.

For the full text of these opinions, see Links of Interest at the bottom of the KOG Blog.

Attorney general says county school board violated sunshine law with serial meetings

The Ohio County school board violated the state open-meetings law by having a series of meetings, each having less than a quorum of members, to discuss extending a buyout offer for the superintendent, Attorney General Jack Conway said in opinion that was issued last week and released today.

The opinion was requested by Don Wilkins, editor of the Ohio County Times News, who alleged that the board chairman coordinated the meetings in order to get at least three of the five members to support a retirement buyout for Supt. Soretta Ralph. Wilkins had asked the board to give the weekly newspaper any records reviewed during the meetings and any written accounts of the meetings, to apologize for violating the law, and to pledge to obey it. Board Chairman Barry Geary "never did admit he broke a state law governing open meetings, but he said several times he would never do it again," Wilkins wrote in the May 28 edition.

When Wilkins appealed to the attorney general, Geary admitted speaking to two other members about the proposal. Superintendent Soretta Ralph alleged that Geary had contacted other board members to discuss how they would vote on matters to be dealt with at board meetings, and provided a statement from one member saying Geary had discussed the buyout with him by telephone.

The attorney general's decision (09-OMD-93) said there was no apparent dispute about the conversations, and cited two previous decisions holding that the law's definition of meetings -- "all gatherings of every kind" -- includes telephone conversations. However, it said it is unable to determine whether the meetings were held with the intent of violating the law. It also said it did not have the authority to order the board to produce the documents he requested.

Board attorney A.V. Conway told the attorney general's office that he had no advance knowledge of Geary's discussions with other members about the issue. Wilkins reported May 28, "The attorney said three members of a board cannot discuss something outside an open meeting and then hope to come to an open meeting and vote on that issue." He quoted Conway as saying, “Perhaps I should have had a discussion with the new board members before their first meeting.” Conway is the uncle of the attorney general.