KPA appeals over denial of Midway budget

The Kentucky Press Association has appealed to the state Attorney General's office the refusal of Midway Mayor Tom Bozarth to release copies of the city's proposed budget for the next fiscal year.

The Midway City Council is scheduled to discuss the budget proposal on Monday. The Midway Messenger had asked in writing for a copy after Bozarth gave it to council members. Bozarth refused, saying the budget was "purely preliminary" and wouldn't be released until the council has finalized it. The Messenger is a blog and website run by Professor Al Cross at the University of Kentucky's Institute for Rural Journalism and Community Issues as an outlet for stories written by students in his community journalism classes.

In its appeal, the KPA argued that exemptions to the Kentucky Open Records Act relating to drafts and recommendations were limited.

"Our position is that it ceases to fit that phrase ("preliminary") once it is distributed to and discussed by members of a public agency at a public meeting. After all, a budget is the basic policy document for a government," the KPA said.

Midway is located in northern Woodford County, halfway between Lexington and Frankfort. For the Messenger story and a link to the appeal, go here.

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.

Kentucky ranked most transparent state for online government spending records

A new report, rating each state's use of online databases to give the public information about government spending, lists Kentucky as the only state getting an "A" grade. The report from the U.S. Public Interest Research Group, a long-established government watchdog, "evaluates states’ progress toward 'Transparency 2.0' – a new standard of comprehensive, one-stop, one-click budget accountability and accessibility," it says in a news release. The report reveals at least 32 states "currently mandate that residents be able to access an online database of government expenditures with 'checkbook-level' detail."

Kentucky led all states with a grade of 97 percent. The next closest was Ohio at 84. Kentucky's Web site only lost points for not linking funding related to the federal stimulus act and for not including financial information for local and county budgets. "Openness in government has been a top priority of this administration, and it is gratifying that our extensive efforts have not only received notice, but have been ranked the best in the nation," Gov. Steve Beshear said in a statement. "As we face an unprecedented $1.5 billion shortfall over the next biennium, it is more important than ever for government to be transparent and accountable, and for citizens to feel confident that their tax dollars are being used efficiently and responsibly. I’m proud of the efforts we have made, along with the bipartisan support of all of the state’s executive-branch constitutional officers and Kentucky’s judicial branch, to put our checkbooks online for public view in a comprehensive and user-friendly manner." The legislature, also divided between the parties, is likewise moving to put its records in the system. (Read more)

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.

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)

Bill would allow school boards to evaluate superintendents in closed meetings

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

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

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

Applications for business licenses ruled public

The state Court of Appeals has ruled that the Kenton County Fiscal Court violated the Open Records Act when it denied a records request from The Kentucky Enquirer.

In a March 12 decision, the court said the fiscal court interpreted a section of the law too broadly when it denied the newspaper access to an occupational-license application for a restaurant in Crescent Springs. In Kenton County Fiscal Court v. Kentucky Enquirer, 2010 WL 890012 (Ky.App.), the court adopted the reasoning in a line of opinions of the state attorney general's office recognizing that "it is in the public interest to know what businesses and professions have been licensed to exist and operate within the boundaries of the governmental unit."

The court concluded that "it is incumbent on Kenton County to disclose any and all information appearing upon the application as it relates to what professions or businesses are licensed to operate and which does not reveal the affairs of any person or affairs of the business, and to redact the information which does."

Enquirer reporter Jim Hannah asked Oct. 17, 2007, for a copy of the application of Empire Buffet, and the county denied it. The attorney feneral ruled that December that the county's position "reflects a fundamental misconception that records are presumed to be closed unless expressly declared by the legislature or the courts to be open, indeed, that the public has the burden of proving that a record is open," and that the fiscal court was interpreting the law too broadly so "as to authorize blanket nondisclosure of applications for business licenses." That ruling was upheld in Kenton Circuit Court and now by the Court of Appeals.

Butler County appeals open-meetings decision

The Butler County Fiscal Court has voted to appeal an open-meetings decision of the attorney general to Butler Circuit Court, according to the Bowling Green Daily News. The decision is 10-OMD-043, issued March 3.

The attorney general's office agreed with Robert D. Cron, a candidate for county judge-executive, that magistrates of the fiscal court violated the state Open Meetings Law by meeting with the county sheriff with less than a quorum to discuss the budget for his office. The attorney general said this violated a section of the Open Meetings Act written to prohibit just such meetings. These closed-door series of secret meetings deprived the public of any information that was discussed regarding policy, operations, salaries, new hirings or a host of other issues related to the operated of the sheriff's department.

In ruling against the fiscal court, the attorney general's office said everyone in the county has a compelling interest in ensuring that the sheriff has enough money to enforce the law countywide, and:

Contrary to the Fiscal Court’s view, the purpose of the Open Meetings Act is not only to prohibit decision makers from making decisions that affect the entire community "in ‘back rooms’ outside the eye of the public," but also "to prevent the decision makers from having discussions of public issues” critical to the broad public interest outside the eye of the public."

This is not the first time the Butler County Fiscal Court has disregarded its obligation to the law and to the citizens of the county by holding secret meetings. A year ago, the attorney general found that the fiscal court's finance committee had violated the open meetings law by not giving public notice of those meetings. A citizen also said a series of meetings had been held to avoid a public meeting. That is opinion 09-OMD-014, issued Jan. 26, 2009.

The law states, "Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section," which provides that “All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times."

The Bowling Green newspaper said in an editorial, "Elected officials in Butler County should back down on this appeal. It is clear they were holding secret meetings. They should also remember they work for their constituents, the taxpayers who pay their salaries, and it is not only appropriate to hold open meetings so they can follow the business of the county, it is the law."

UPDATE, April 9: The appeal has been filed, as a lawsuit against Cron, who is being defended by Louisville lawyer Jon Fleischaker, chief author of the open meetings law, Andrew Thomason reports for the Daily News.

Louisville SPJ hosting session on freedom-of-information issues; register by March 10

The Louisville Professional Chapter of the Society of Professional Journalists is hosting a half-day session on the Freedom of Information Act and related issues Saturday, March 13. The event, in partnership with the Institute for Media, Culture and Ethics at Bellarmine University, will be held at Bellarmine's Brown Activity Center from 9 a.m. to noon.

First amendment attorneys Richard Goehler and Monica Dias will present three sessions, according to the SPJ press release. The first will focus on FOIA and open records issues; the second will examine legal issues facing bloggers and other Internet users; and the third will look at recent court decisions on tweeting and blogging inside the courtroom.

The seminar is free for students, $10 for SPJ members and $15 for others. Participants must register by Wednesday, March 10 by contacting Robyn Davis Sekula at robynsekula@sbcglobal.net, or by calling 812-981-8223.

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.

Committee OKs bill for openness in family courts

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

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

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

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

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

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


The bill now awaits action by the entire House.

Louisville Freedom-of-information session March 13

Do you want to add more depth to your stories by obtaining copies of government records, but you aren’t sure how to get them or what records are open to you? Are public agencies making decisions in closed meetings that should be open to the public and the media? Do you have a web site and are uncertain about what non-original material you can legally post on your site, without violating copyright or fair use laws? And what about those comments your readers are posting on your site? Are you legally responsible for what they say? Are judges going too far when they prohibit journalists from blogging or tweeting from the courtroom during a trial? What about live streaming of a trial on the internet?

You can get the answers to these questions at a Freedom of Information seminar, sponsored by the Louisville Pro Chapter of the Society of Professional Journalists, on Saturday, March 13, from 9 a.m. to noon at Bellarmine University. The event will be held in the Brown Activity Center, which also houses Frazier Hall and the student cafeteria, in the communication wing, room 203.

First Amendment attorneys Richard M. Goehler and Monica Dias with the law firm of Frost Brown Todd, will present three lively and informative sessions. The first will focus on FOI and open records issues. The second will address legal issues facing bloggers and other operators of internet web sites. And the third will examine the latest judges’ decisions regarding tweeting and blogging from inside the courtroom. Each session will last about 50 minutes. These are interactive sessions where you will have the opportunity to ask legal experts questions on these important topics.

The cost for attending all three session $10 for SPJ members and $15 for non-members. Those who join SPJ at the event may attend for free. Admission is free for students

Registration will begin at 8:45 a.m. The first session will begin at 9 a.m. The final session will conclude at noon.

You must register by March 10 by contacting Robyn Davis Sekula at robynsekula@sbcglobal.net, or calling 812-981-8223.

Bill to open child-abuse death records turned into one for a study that wouldn't be done until 2012

The sponsor of a state House bill that would have required the release of records on children who die from abuse or neglect has amended his proposal to call for more study on the issue instead.

After Rep. Tom Burch of Luisville altered the bill, it passed the House Health and Welfare Committee 13-0. Burch said he was taking into consideration concerns about the bill from the Cabinet for Health and Family Services, but that he still supported opening up the records. He told the Lexington Herald-Leader he believes his bill will ultimately lead to more public scrutiny of child-abuse deaths. Kentucky had the highest rate of child death from abuse and neglect in the United States in 2007, according to a study by the advocacy group Every Child Matters Education Fund.

The new version of the bill calls for a panel that would make recommendations by Sept. 30, 2012.

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)

Mt. Vernon officials violated open meetings law

The Mt. Vernon City Council and Mayor Clarice Kirby violated Kentucky's open meetings law, according to a ruling from the office of Attorney General Jack Conway.

The opinion issued Jan. 25 said the council had "discussed and voted upon public business during a series of less than quorum meetings by telephone, and the members attending one or more of the meetings collectively constituted a quorum." The council also failed to issue a written response to a complaint about the action submitted to council members by Don Jones. Both are violations of the Kentucky Open Meetings Law.

Mayor Kirby was indicted in December on charges of bribery, insurance fraud, official misconduct and two counts of abuse of public trust. She has pleaded not guilty, according to the Lexington Herald-Leader. As a condition of her release from jail, a judge ordered that Kirby not exercise sole authority to pay city bills or spend public money.

The attorney general's ruling said that within several days of her release from jail, Mayor Kirby directed the city clerk to poll "each member by telephone regarding the public business of paying bills and the scope of her authority relative to same."

The Open Meetings Act prohibits “meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act.”

For the full text of this and other state attorney general opinion issued today, see Links of Interest below. The opinion is 10-OMD-015.

Mississippi journalists fight government secrecy

The Rural Blog reports that the Mississippi Press Association, The Associated Press and the state's freedom-of-information center are teaming up in another effort to fight government secrecy. To see the story, go to http://irjci.blogspot.com/.

AP chief says journalism includes using open-government laws and fighting for better ones

Using freedom-of-information laws and fighting for stronger ones is "journalism by other means" and should be an essential function for journalists, their employers and their membership organizations, Tom Curley, president of The Associated Press, told the Kentucky Press Association today.

Keynoting KPA's convention at the Embassy Suites in Lexington, Curley said America's broad body of statutory and case law for open government is "terribly vulnerable" because of changes in the friendly "ecosystem" that has built "this fragile edifice of laws and rules." He said the ecosystem includes news organizations that are suffering financial pressure and journalism organizations that are seeing their membership ranks wither. Also, "Courts and judges, sometimes at the highest level, are part of the problem they are supposed to help us solve," Curley said.

Curley said that in tough economic times, when so much emphasis is on maintaining audience and generating revenue, he was glad to see the KPA convention had several sessions related to freedom of information. The centerpiece of the program was the Better Watchdog Workshop of Investigative Reporters and Editors, aimed at helping newspapers do better watchdog journalism about government and other institutions.

The convention concludes tonight with the annual awards banquet. At the luncheon where Curley spoke, the Lexington Herald-Leader presented its annual Lewis Owens Community Service Award to the Beattyville Enterprise, a small weekly paper that continued publishing after its offices were destroyed by fire. "We are all inspired by your story," Curley told Enterprise Editor Edmund Shelby, who completed his year as KPA president at the event. The new president is Chip Hutcheson of The Times Leader in Princeton.

Attorney general approves Hopkinsville council's vague motion for 'appropriate legal action'

The Hopkinsville City Council was justified in deliberately leaving vague its motion to take action after a closed discussion because the matter involved legal strategy, the state attorney general's office has ruled.

The Kentucky New Era newspaper had complained that the council, which met in closed session to discuss litigation with AT&T, had "violated the spirit and foundation of Kentucky's Open Meetings Act" when it voted only to "take appropriate legal action" following the secret discussion. The attorney general's decision said that while "such a vaguely worded motion might, under a different set of facts, represent little more than a strategem to 'shield the agency from unwanted or unleasant pulbic input, interference or scrutiny'," in this case the council was justified in trying to protect its legal strategy, and therefore did not violate the law.

For a full text of this and other recent attorney general rulings, see Links of Interest below. The opinion is 10-OMD-007.

Hopkinsville appeals attorney general's decision, fights to keep certain police records secret

The city of Hopkinsville has appealed an attorney general's decision that city officials should give the Kentucky New Era with certain police records that the city says it does not have to disclose.

The newspaper asked city police for reports "referencing any threats made in Hopkinsville during an eight month period," Julia Hunter of the New Era writes. "City Clerk Crissy Upton provided more than 400 reports, but withheld all reports regarding juveniles, any reports under investigation and redacted “personal information” of victims and offenders. The information redacted included gender, race, ethnicity and addresses."

The New Era appealed to the attorney general's office. In December, Attorney General Jack Conway agreed with the newspaper, saying the city has failed to justify its stance with specific arguments. The appeal goes to Circuit Judge Andrew Self.

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.