Attorney general rules against city, county agencies

The Kentucky Attorney General’s office has cited several county and city agencies for holding closed sessions or meetings or refusing requests for public records in a batch of rulings.

The office ruled:

• A planning committee formed by Shelby County Fiscal Court and the cities of Shelbyville and Simpsonville violated the Open Meetings Act by conducting non-public meetings without notice or minutes. The committee had been created by official action.

• The Joint Board of Ethics for the cities of Bardstown and Fairfield and Nelson County failed to observe requirements for conducting closed sessions and failed to respond to an open meetings complaint.

• Laurel County Fiscal Court was late in responding to a request for public records and wrong in refusing records of a closed session on jail personnel.

• The Webster County Board of Education violated the Open Meetings Act in failing to strictly comply with legal requirements before going into closed session.

• The city of Raceland subverted the intent of the Open Records Act by representing that charges would be made for staff time spent on an open records request.

• Madison County Fiscal Court violated the Open Meetings Act in relation to a September 22 meeting of a quorum of its members or a series of less than quorum meetings where the members attending collectively constituted a quorum and where public business was discussed.

• Kentucky Community and Technical College System improperly relied on KRS 61.878(1)(a) and (i) in denying a request for evaluations and performance improvement plans relating to public officials whose conduct had been questioned. The ruling also said KCTCS's inability to produce correspondence exchanged by the chancellor and the president for a two-month period suggests record management issue, and referred the matter to the Department for Libraries and Archives.

The attorney general’s office also ruled in favor of the Office of the Commonwealth’s Attorney for the 30th Judicial District, Campbell County Fiscal Court, Western Kentucky Correctional Complex, Kentucky State Reformatory, Pike County Circuit Court Clerk and Louisville Metro Department of Corrections in separate open records and open meetings complaints.

Full texts of the opinions can be found through the Links of Interest below.

Inspector fired after newspaper investigation

Todd County has fired its restaurant inspector after an investigation by the Kentucky New Era showed he had failed to make required inspections.

The Hopkinsville daily reported that county Health Director Leslie Daniels fired environmentalist Malcolm Rust for "insufficient performance" and because of an interview he gave the newspaper in which he said there was "too much work for one person." The newspaper's investigation showed that Rust had often failed to make required inspections. Several restaurants had gone 11 months without an inspection, which the law requires every six months.

Rust had worked for the county for 10 years, the New Era story by Julia Hunter said.

Attorney general rules against airport board, county officials

The state attorney general's office has ruled the Lexington-Fayette Urban County Airport Board and county officials in Whitley, Crittenden and Nelson counties violated Kentucky's Open Records Act.

The airport board ruling came in a case brought by Lexington Herald-Leader reporter Jennifer Hewlettas part of the newspaper's investigation of the board. Hewlett was seeking an unredacted copy of a $10,000 check issued to former airport executive director Michael Gobb. The board had blacked out the name on the check, claiming it included "confidential health information."

"In weighing the competing public and private interests in the redacted information, the balance tips in favor of disclosure," the attorney general's decision said.

Gobb resigned as executive director after the newspaper's investigation, which revealed a pattern of questionable and high spending of public money.

In Whitley County, the 911 Dispatch Office denied a request for a copy of a 911 tape by Clarence Hurst. The dispatch office refused, saying 911 tapes are exempt from the Kentucky Open Records Act. "We find no support in the law for Whitley County's position," the attorney general's ruling said, adding "an ever-growing body" of law and legal opinions hold that 911 recordings are clearly public.

Crittenden County Fiscal Court "violated both procedural and substantive provisions of the Open Records Act" when it failed to respond properly to a request by Robert Moore for records relating to its solid waste management plan, the attorney general's opinion said.

In Nelson County, the judge/executive violated the law when he withheld "nonexempt portions of time sheets/time cards of a public employee, such as vacation leave and sick leave." The decision said, "In our view, the public's right to know is superior to the employees' privacy interest, real or imagined."

School board violated open meetings act

The Spencer County Board of Education violated Kentucky's Open Meetings Act by evaluating its superintendent in a closed-door session, Circuit Court Judge Charles Hickman has ruled.

The decision upheld an opinion by the attorney general's office that had been challenged by the school board.

The board conducted its mandatory annual evaluation of Superintendent Charles Adams in a closed session in June 2008. Board member Sandy Clevenger, who voted against the motion to adjourn to an executive session to discuss the evaluation, asked the attorney general whether the session complied with the state law. The opinion issued by the attorney general's office, which has the force of law unless overturned in circuit court, said the superintendent's personnel evaluation must be conducted in public. The school board challenged the ruling, supported by the state School Board Association, Board of Education, Department of Education and the Association of School Administrators.

"The exceptions to the Open Meetings Act are to be strictly construed in light of the decided preference that the public's business be performed before the eyes of the public," Judge Hickman wrote in his decision. "The Court finds no error in the AG's reasoning or conclusions."

Hickman turned down Clevenger's request for damages and attorney fees, saying the decision to hold a closed session was made in good faith and not in willful violation of the Open Meetings Act.

Attorney general rules in favor of Winchester Sun in open records case

Kentucky’s Energy and Environment Cabinet cannot withhold the addresses of people receiving benefits under the Soil Erosion and Water Quality Cost-Share program, the state’s attorney general has ruled.

The ruling came in a case filed by Winchester Sun reporter Mike Wynn. Wynn had asked for the names and addresses of “all individuals, businesses, farming operations or similar entities in Clark County that have received funding in the last five years” from the state program.
The cabinet, a part of the Division of Conservation, gave Wynn most of the information but refused to release the addresses, citing “privacy concerns.”

The ruling, while recognizing that such information can sometimes be withheld from public disclosure, said such a decision must be made on a case-by-case basis, and no agency can make an overall rule. In this case, the ruling said, the public’s right to know whether the benefits were being granted properly to properly qualified farmers outweighed the recipients’ right to privacy.

“As the Kentucky Supreme Court emphasized, the ‘unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment to public officials or others’,” the ruling said.

The attorney general’s office also ruled on several other cases involving prisoner requests for information. A brief summary follows. For full details, see Links of Interest below.

1. 09-ORD-158 (Lyon County)
The Kentucky State Penitentiary did not violate the Open Records Act in denying request because sufficient indicia exist to establish an "identity of purpose" between the requester and her inmate boyfriend. Because requester admittedly made request on his behalf after the penitentiary properly denied his request for the same records on the bases of KRS 197.025(1) and (2), providing her with access would undermine the purpose for which those provisions were enacted.

2. 09-ORD-159 (Franklin County)
Private attorneys are not public agencies within the meaning of KRS 61.870(1) to whom the Open Records Act applies. Accordingly, actions of private attorney relative to responding to former client's request cannot be said to have violated the act.

3. 09-ORD-160 (Franklin County)
The Department of Corrections was not required to permit on-site inspection of Probation and Parole records by an inmate confined in another location.

4. 09-ORD-163 (Lincoln County)
The Lincoln County Jail is not statutorily required to honor a request for information as opposed to a request for existing public records. Although the jail would generally be required to make any nonexempt records that might contain the information being sought available for inspection, the requester is precluded from exercising this option by virtue of his confinement in a state correctional facility.

Inmate not allowed access to letters he wrote

Saying it would not overrule prison officials in judging whether releasing some records would pose a security threat, the state attorney general's office has ruled in favor of the Lee Adjustment Center, a medium-security facility operated by Corrections Corp. of America under contract with the state Department of Corrections, in a dispute with an inmate. The decision, 09-ORD-152, was one of two issued this week by the office.

In the other, 09-ORD-151, it said the Russell County Board of Education properly withheld education records under federal and state education privacy laws where applicant had not provided legal certification that he was the father of the pupils, although the board's initial response procedurally violated the law by not identifying the custodian of certain records.

For full texts of the ruling, see Links of Interest at the bottom of the KOG Blog.

National security issues snag shield-law bill

Questions about dealing with leaks of national-security information are holding up passage of a federal shield law for journalists, Walter Pincus reports for The Washington Post. The Justice Department wants to do away with the proposed "balancing test" in which judges would weigh the need to compel reporters to disclose sources against the public interest of revealing the information, in favor of a plan that would allow the department to subpoena reporters after convincing a judge that release of information could harm national security. For a Rural Blog item with a link to the story, go to http://irjci.blogspot.com/.

Journalists attending Sunshine Seminar today

Fifteen journalists gathered in Morehead this morning for the third Sunshine Seminar sponsored by the Kentucky Press Association, the Scripps Howard First Amendment Center and the Institute for Rural Journalism and Community Issues. The first presentation was given by Ashley Pack, above, partner in the Dinsmore & Shohl law firm and KPA attorney-lobbyist. The next speaker was Amye Bensenhaver, the assistant attorney general who handles open-government issues. This afternoon, Carrie Stambaugh of The Independent in Ashland will tell open-government war stories and Al Cross of the Institute will discuss using campaign-finance records and what sort of public records newspapers should publish.

After Pack noted that the legislative policy of the Open Records Act calls for it to be "strictly construed, even though such examination may cause inconvenience or embarassment to public officials or others," Cross said community journalists may be reluctant to cause discomfort or inconvenience to local officials they know and like, they "must put those personal relationships aside" and play the public-service role that news ouutlets and journalists are supposed to play.

Kentucky New Era wins open-records victory, follows up with story on health departments

The Rural Blog reports today on an open-records victory by the Kentucky New Era in Hopkinsville that resulted in a weekend story questioning the performance of health departments in southwestern Kentucky. For the full blog item and a link to the story, go here.

AG reiterates: Public officials are not required to create records that do not exist

The Kentucky attorney general's office released eight decisions today on open-records and open-meetings issues. Several dealt with requests for records that officials said did not exist; decisions reaffirmed past decisions saying records don't have to be created to fulfill a request. A brief summary of the six most significant decisions follows. Full text can be found via Links of Interest at the bottom of the KOG Blog.

09-ORD-143
Although Trigg County Emergency Services mischaracterized 911 tape and dispatch log entries relating to triple homicide as Kentucky State Police records, because they were requested and utilized by KSP in its investigation of the crime, it ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at KSP's request.

09-ORD-144
McCreary County sheriff violated the Open Records Act by failing to respond in writing to a request and failing without explanation to provide any records about wrecker service in response to some portions of the request.

09-ORD-145
Neither the McCreary County judge-executive nor the McCreary County 911 Emergency Dispatch Center is required to produce nonexistent records about wrecker service or "prove a negative" in order to refute a claim that a certain records exist under the rule, nor must either agency create a record or compile a list in order to honor the subject requests; however, the response provided on behalf of the agencies violated the Act insofar as the judge-executive failed to affirmatively indicate whether additional responsive documents exist.

09-ORD-148
Office of the Governor did not violate the Open Records Act when it did not possess records responsive to the request and provided what it did possess. Any funds received for copies in excess of 10 cents per page should have been returned.

09-ORD-149
Cabinet for Health and Family Services properly withheld records relating to a child fatality pursuant to KRS 61.878(1)(l), incorporating confidentiality statutes KRS 194A.060 and KRS 620.050.

09-ORD-150
Pulaski County judge-executive is not expected to produce nonexistent reprimands nor must he "prove a negative" in order to refute a claim that such records exist in a specific personnel file; however, he violated KRS 61.880(1) in failing to affirmatively indicate whether any responsive complaints or commendations exist and in failing to cite the statutory exception relied upon as the basis for denying access to the requested job performance evaluation. The evaluation was properly withheld on the basis of KRS 61.878(1)(a), given the absence of any specific facts to justify disclosure.

Challenge to Texas open-meetings law dismissed

The Fifth Circuit U.S. Court of Appeals has dismissed a case in which two city council members in Texas claimed the state's open-meetings law violated their right to free speech.

The full court, in a one-sentence ruling Thursday, said the case, Rangra vs. Brown, was moot because both Alpine City Council members who filed it four years ago have left the council and are no longer in a position to be injured by the law.

The two had been threatened with prosecution by the Texas attorney general for discussing city business by e-mail. They argued that the open-meetings law's requirement that they not discuss public business in private violated their constitutional right to free speech. A federal judge had ruled against them, but a three-member panel of the Court of Appeals overturned that ruling. The full 17-member appeals court agreed to hear the appeal, a rare event. The vote was 16-1; the dissenter criticized the others for taking the easy way out.

Proponents of government transparency had feared that if the appeals court ruled in favor of the two councilmen, open-meetings laws in other states might come under attack. Other experts, including Jon Fleischaker of Louisville, the First Amendment lawyer who largely drafted Kentucky's law, had said the three-judge panel's ruling was illogical and would never stand.

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.

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.

Conway says district health department made several mistakes regarding public records

A Western Kentucky health department “subverted the intent” of the state Open Records Act in dealing with the Hopkinsville newspaper's requests for records, Attorney General Jack Conway said in a recent ruling.

The opinion, which is called an "open records decision" because it has the force of law, came after Kentucky New Era reporter Sarah Hogsed filed a request for restaurant inspection reports with the Pennyrile District Health Department. The New Era, which is already reporting on restaurant inspections in Christian County, plans to expand that coverage to adjoining Trigg and Todd counties.

The health department violated the open records law in several ways, the opinion said. First, it disputed Hogsed’s request to have the records within three days, saying it was only required to notify her within that period if it would comply. The attorney general's opinion said that the office was required to turn over the records in three days. The department demanded that she show up in person, present a photo ID and sign a standard form in the presence of a health department employee. That's not the law, either, the opinion said.

Hogsed would then get the records “in a reasonable period of time,” the reply said, “keep[ing] in mind two years of information is quiet [sic] time consuming.” She would also have to pay “all costs associated with the recovery and photocopying.” When the department finally got around to fulfilling the request, it appeared to get the job done in about one day, and charged the paper only 10 cents a copy, the general maximum established by previous attorneys general.

The opinion said the district's excuse for the delay – absence of staff – was not sufficient. The opinion added “in the interest of absolute clarity,” that those who ask for public records cannot be required to submit their requests on preprinted forms, or sign forms in the presence of an agency employee; that receipt of records no longer requires on-site inspection; that agencies may recover only their actual costs of reproducing public records, not including staff time, if the records are to be used for a noncommercial purpose, including use by a newspaper or periodical. The department had indicated that it considered the paper a commercial interest. "We suppose the notion that the news media act in the public interest had escaped the health department," the opinion said.

In another opinion, the attorney general's office ruled that the Shively Police Department’s failure to respond in a timely manner to a request for a police car video in a non-DUI case violated the Open Records Act. The full text of the decisions can be found through the Links of Interest at the bottom of the KOG Blog.

Herald-Leader calls on Minton and Supreme Court to deliver on promises of openness

Despite pledges from Kentucky’s chief justice to shed more light on the process of building judicial facilities, the Lexington Herald-Leader says it’s “past time” for John Minton's promises to become reality.

“It's been almost a year since the Herald-Leader began chronicling the astounding building campaign of the Administrative Office of the Courts,” the newspaper said in an editorial over the weekend. “Cloaked in secrecy, riven with conflicts of interest, devoid of competitive bidding, the program has blasted through dozens of historic downtowns and almost a billion taxpayer dollars and is still going.”

The paper notes that Minton inherited the system from retired Chief Justice Joseph Lambert, and "has taken positive steps to protect both the integrity of the state's court system and tax dollars. ... But some of the changes Minton announced last October to ‘shore up public confidence’ have not yet materialized. It's past time for them to become reality.” Minton told the KOG Blog earlier this year that opening up the court construction program was one of his goals in a general review he has ordered of the degree of transparency in the Kentucky court system. He declined to comment on the Herald-Leader’s editorial.

“The most critical [change needed] is opening up AOC's work to public view, and scrutiny,” the paper wrote. “The records of the court system and the AOC have been closed since 1978 when the Supreme Court ruled that they weren't subject to the state open records law. This is a puzzlement. Our system depends upon the integrity of the courts. And nothing encourages integrity like open records.”

The paper said the lack of transparency leads to a “queasiness,” explaining: “First, we're talking about our courts. If they aren't honest and open, is there any hope for clean government in the two other branches? Second, there is a ton of money on the table here. Human nature and Kentucky's long, corrupt history tell us that public money combined with secret dealings is a combustible mixture that yields no good. ... The Supreme Court can undo what it did in 1978. Open the books. Open the process. Restore confidence.”

Attend Sunshine Seminar in Morehead Sept.18

The Sunshine Seminar, a refresher course on Kentucky open-records and open-meetings laws, is being offered at Morehead on Friday, Sept. 18 for journalists but is open to anyone interested in freedom-of-information issues.

The course is jointly sponsored and run by the Kentucky Press Association, the Institute for Rural Journalism and Community Issues and the Scripps Howard First Amendment Center (both part of the University of Kentucky School of Journalism and Telecommunications). It will cover such issues as how to use the laws, how to appeal to the attorney general, how to deal with judges and other court officials who try to close court proceedings, and using federal and state campaign-finance records to do election stories. Journalists will share success stories and discuss their experiences on the open-government front.

The seminar will be held at the downtown Morehead Convention Center from 9 a.m. to 4 p.m. and the $20 fee will include lunch.

Here’s the detailed schedule:

9:00 The importance of open records, open meetings and open courts and journalists’ role: Al Cross, Institute for Rural Journalism and Community Issues

9:15 History of state FOI laws; how to file open-records requests and appeals; how to keep meetings and courts open: Ashley Pack, Dinsmore & Shohl law firm, KPA attorney-lobbyist

10:30 Dealing with the Office of the Attorney General: Amye Bensenhaver, assistant attorney general and veteran decision writer

12:00 Lunch

12:45 Success stories: How we used freedom-of-information laws and reporting techniques to keep local government open to the sunshine: Carrie Stambaugh, The Independent, Ashland, and others

2:15 Using campaign-finance records in coverage of elections: Tom Loftus, Frankfort Bureau chief, The Courier-Journal

3:30 Records you can and should publish in your newspaper: Al Cross, Institute for Rural Journalism and Community Issues

This seminar will help you do a better job of keeping government open and accountable. Please register today: http://www.uky.edu/comminfostudies/irjci/SunshineEast09reg.pdf.

Attorney general issues open records decisions

The following Open Records Decisions have been issued by the Office of the Attorney General:

09-ORD-120 (McCracken County): Reidland-Farley Fire Department did not violate open records law when it notified requester that it did not maintain records responsive to his request and advised him where those records were located. Questions relating to the truthfulness of this statement cannot be resolved in this appeal, nor can questions relating to unperfected appeal and questions that are hypothetical in nature.
09-ORD-121 (Jefferson County): Decision adopting 00-ORD-116; grand jury records are permanently excluded from application of the Open Records Act by operation of KRS 61.878(1)(h).
09-ORD-122 (Jefferson County): Decision adopting 98-ORD-6 and 04-ORD-021; records in the custody of circuit and district court clerks are properly characterized as court records, to which the Open Records Act does not apply, rather than public records within the meaning of KRS 61.870(2). In accordance with Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), KRS 26A.200 and KRS 26A.220, the authorities upon which 98-ORD-6 and 04-ORD-021 are premised, this office finds that the Jefferson Circuit Court Clerk is not bound by, and therefore cannot be said to have violated the Open Records Act in failing to respond in writing upon receipt of the request(s) at issue as KRS 61.880(1) otherwise requires or in declining to "notify and/or respond for" specified judges and court officers.
09-ORD-123 (Henderson County): Decision adopting 03-ORD-074 and holding that Henderson County Detention Center properly relied on KRS 197.025(2) in denying inmate request for records that did not contain a specific reference to him.

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

AP Managing Editors give Kentucky's big papers 1st Amendment, public-service awards

The Courier-Journal and the Lexington Herald-Leader are among recipients of awards announce yesterday by the Associated Press Managing Editors. The Herald-Leader won a Public Service Award for its recent series of reports on appointed government boards and local-government lobbying and service groups, while the Louisville paper won a First Amendment Award for its successful seven-year fight to reveal donors to the University of Louisville Foundation.

"The legal battle between the newspaper and the university began in 2001 after the paper requested the names of people who donated to the university's McConnell Center, which Senate Minority Leader Mitch McConnell, R-Ky., helped found," Emilu Udell writes for The C-J. "The foundation argued that it was not a public agency and so was not subject to the Kentucky Open Records Act." (Read more)

"The Herald-Leader won the Public Service Award given to newspapers with a circulation of 40,000 to 150,000," the paper and AP report. The paper's "It's Your Money" series "has examined spending at Blue Grass Airport, the Lexington Public Library, Kentucky League of Cities and Kentucky Association of Counties. The stories revealed that the groups had spent hundreds of thousands of dollars on questionable travel, meals and other expenses. After the initial airport stories appeared, the director of the airport resigned, as did several top members of his staff." (Read more)

For the full list of winners, from APME, click here.

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.

AG decision opens up documents showing county magistrates spending in their districts

Documents showing county magistrates how money has been spent in their districts are public records, the attorney general's office said in an open-records decision last week. The decision pulls back the curtain on a common practice in county governments, divvying up funds for roads on the basis of political representation. Sometimes, actual needs of the districts take a back seat. It could also reveal a perhaps less common but arguably illegal practice, giving magistrates authority to spend money in their districts. They are supposed to be legislators on the Fiscal Court, with no executive power.

Richard Shivel of Russell County asked in writing to see "records related to monies spent by individual Magistrates in their respective districts, and any monies given or set aside" for individual districts or magistrates, including inspection of the folders that magistrates keep of such documents. The county attorney said the folders were personal and could be requested from the individual magistrates at a Fiscal Court meeting. When Shivel appealed to the attorney general, the county judge-executive said the folders are kept in his office, but contained only copies of other documents that could be obtained from the office. Citing a 1991 opinion, the decision said that was no excuse.

"Mr. Shivel should still have access to the folders in order to know which particular documents have been set aside as pertaining to each magistrate’s district," said the decision, written by Assistant Attorney General Jim Herrick and approved by Attorney General Jack Conway. It has the force of law but the county can appeal by filing suit in Russell Circuit Court.