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.”

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.

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.