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.
Thursday, September 10, 2009
Tuesday, September 1, 2009
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.
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.
Friday, August 28, 2009
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.”
“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.”
Thursday, August 13, 2009
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.
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.
Wednesday, August 12, 2009
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.
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.
Tuesday, August 4, 2009
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.
"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.
Wednesday, July 29, 2009
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.
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.
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.
Monday, July 27, 2009
Attorney general's decision provides useful reminders about open-records law
A new attorney general's opinion contains some useful reminders about what the state Open Records Act does and what it doesn't do. The opinion, in the case of a Goshen man's demand for information from the North Oldham Fire Protection District, found partially in favor of the complainant, Peter Neidhardt, and partially in favor of the district, treading a careful route among state and federal laws and regulations and the definition of records, information and research.
Neidhardt had demanded minutes from unspecified meetings of the district board about volunteer firefighters' benefits and reimbursements. The decision said the district failed to provide "timely access," by not meeting the three-day deadline for a reply, but there was no statutory requirement for the district to provide information, create a record, perform research or compile a list.
The decision said the purpose of the Open Records Act "is not to provide information, but to provide access to public records." Therefore, "requests for information, as opposed to requests for specifically described public records, need not be honored." In the words of the office, what the public gets is what the public agency has and in the format in which the agency has it. "One desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled."
Further, the attorney general said, the district was not required to make a written reply to Neidhardt, and since he resided within the county, could require him to go to the district's office in working hours to look through the records himself.
For a complete text of the opinion, and several others issued recently, see Links of Interest at the bottom of the blog.
Neidhardt had demanded minutes from unspecified meetings of the district board about volunteer firefighters' benefits and reimbursements. The decision said the district failed to provide "timely access," by not meeting the three-day deadline for a reply, but there was no statutory requirement for the district to provide information, create a record, perform research or compile a list.
The decision said the purpose of the Open Records Act "is not to provide information, but to provide access to public records." Therefore, "requests for information, as opposed to requests for specifically described public records, need not be honored." In the words of the office, what the public gets is what the public agency has and in the format in which the agency has it. "One desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled."
Further, the attorney general said, the district was not required to make a written reply to Neidhardt, and since he resided within the county, could require him to go to the district's office in working hours to look through the records himself.
For a complete text of the opinion, and several others issued recently, see Links of Interest at the bottom of the blog.
Tuesday, July 21, 2009
Open Government Report 2009: Records and meetings laws relatively good, but family courts worry advocates of openness
Kentuckians can feel confident their government is operating with a relatively high degree of transparency and openness, except for “serious problems” in the juvenile and family court system, which includes juvenile proceedings.
That's the news in the 2009 Kentucky Open Government Report, published by the Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues at the University of Kentucky, which publish this blog.
The relatively good state of open-records law was illustrated last week by The Courier-Journal's publication of a story and online database about donations to the University of Louisville Foundation. The story was made possible by a state Supreme Court ruling that ended a long legal battle between the university and the newspaper.
On the other hand, family courts and the Cabinet for Health and Family Services combine to create the biggest black hole in Kentucky government, says Jon Fleischaker, a Louisville lawyer who wrote Kentucky’s open-government laws and remains the state’s foremost First Amendment attorney.
For the full report in PDF format, click here; to read it from a Web page with links, click here.
That's the news in the 2009 Kentucky Open Government Report, published by the Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues at the University of Kentucky, which publish this blog.
The relatively good state of open-records law was illustrated last week by The Courier-Journal's publication of a story and online database about donations to the University of Louisville Foundation. The story was made possible by a state Supreme Court ruling that ended a long legal battle between the university and the newspaper.
On the other hand, family courts and the Cabinet for Health and Family Services combine to create the biggest black hole in Kentucky government, says Jon Fleischaker, a Louisville lawyer who wrote Kentucky’s open-government laws and remains the state’s foremost First Amendment attorney.
For the full report in PDF format, click here; to read it from a Web page with links, click here.
Thursday, July 16, 2009
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.
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.
Thursday, July 2, 2009
League of Cities releasing records again
The Kentucky League of Cities has returned to its former policy of fulfilling open-records requests from the Lexington Herald-Leader, it announced today. It reserved the right to withhold records that might hurt the insurance business that has turned it from a relatively modest lobbying group to a financial institution.
“While we are withdrawing our opposition to certain requests, we will continue to protect our proprietary interests as we compete in the marketplace every day,” Mayfield Mayor Arthur Byrn, chair of the Kentucky League of Cities Insurance Services board, said in a press release from the league. Last week, the league said it would stop releasing records because it didn't consider itself to be a public agency. Under the state open-records law, entities that get 25 percent or more of the revenue they spend in Kentucky are public agencies.
The league indicated that last week's decision was a public-relations blunder. “Our intent to protect our insurance service programs has been greatly misunderstood to the detriment of the reputation of our organization,” KLC General Counsel Temple Juett said in the release. “Our intent has and always will be to protect the proprietary nature of our business – in particular our insurance services – which were founded in the late '80s when cities could not obtain insurance anywhere and for any price.”
After the Herald-Leader published stories last month about the salaries and expenses of top league executives, it asked the league for records of payments to law firms. That prompted the policy change that was reversed today. For the league's release, click here. For more information, see the item below.
“While we are withdrawing our opposition to certain requests, we will continue to protect our proprietary interests as we compete in the marketplace every day,” Mayfield Mayor Arthur Byrn, chair of the Kentucky League of Cities Insurance Services board, said in a press release from the league. Last week, the league said it would stop releasing records because it didn't consider itself to be a public agency. Under the state open-records law, entities that get 25 percent or more of the revenue they spend in Kentucky are public agencies.
The league indicated that last week's decision was a public-relations blunder. “Our intent to protect our insurance service programs has been greatly misunderstood to the detriment of the reputation of our organization,” KLC General Counsel Temple Juett said in the release. “Our intent has and always will be to protect the proprietary nature of our business – in particular our insurance services – which were founded in the late '80s when cities could not obtain insurance anywhere and for any price.”
After the Herald-Leader published stories last month about the salaries and expenses of top league executives, it asked the league for records of payments to law firms. That prompted the policy change that was reversed today. For the league's release, click here. For more information, see the item below.
Friday, June 26, 2009
League of Cities stops releasing its records, saying it isn't a public agency
When the Lexington Herald-Leader asked the Kentucky League of Cities for a lot of records a few months ago, the league complied. Now the organization, which has expanded its business activities beyond lobbying, says it will no longer voluntarily release records.
The league "is not a public agency and not subject to the Kentucky Open Records Act," Temple Juett, the League's attorney, said in a letter to the Herald-Leader yesterday. The newspaper reported, "In all the past responses to the Herald-Leader's open records requests, Juett had stated that the league's status as a public agency had never been determined, but that the league would comply voluntarily. Herald-Leader Editor Peter Baniak said the paper will pursue the records issue through the appropriate channels."
Typically, that means an appeal to the attorney general, whose decisions in open-records and open-meetings matters have the force of law, followed by a lawsuit from the side that loses at the attorney general's office. In 1993, the office "found that the Kentucky Association of Counties, similar in its structure and services to the league, was a public agency because it received at least 25 percent of its revenues from public sources," the Herald-Leader reports. "The league receives its revenues from city membership dues, insurance premiums and loan payments. But it is unclear whether the 1993 ruling ... applies to the league."
The league wants a legal determination of its status, said Richmond Mayor Connie Lawson, who chairs the group's executive board. Another board member, Lexington Mayor Jim Newberry, said he did "not understand the league's rationale for changing its position concerning open records." The board opened its June 19 meeting at the request of the Herald-Leader.
On June 17, after the newspaper published stories about the salaries and expenses of top league executives, it asked the group for records of the group's payments to law firms. That prompted this week's letter. The league had denied an earlier request, for records of payments to the firm where Executive Director Sylvia Lovely's husband, Bernard Lovely, is a partner. (Read more)
UPDATE: Sylvia Lovely has resigned as executive director of the league.
The league "is not a public agency and not subject to the Kentucky Open Records Act," Temple Juett, the League's attorney, said in a letter to the Herald-Leader yesterday. The newspaper reported, "In all the past responses to the Herald-Leader's open records requests, Juett had stated that the league's status as a public agency had never been determined, but that the league would comply voluntarily. Herald-Leader Editor Peter Baniak said the paper will pursue the records issue through the appropriate channels."
Typically, that means an appeal to the attorney general, whose decisions in open-records and open-meetings matters have the force of law, followed by a lawsuit from the side that loses at the attorney general's office. In 1993, the office "found that the Kentucky Association of Counties, similar in its structure and services to the league, was a public agency because it received at least 25 percent of its revenues from public sources," the Herald-Leader reports. "The league receives its revenues from city membership dues, insurance premiums and loan payments. But it is unclear whether the 1993 ruling ... applies to the league."
The league wants a legal determination of its status, said Richmond Mayor Connie Lawson, who chairs the group's executive board. Another board member, Lexington Mayor Jim Newberry, said he did "not understand the league's rationale for changing its position concerning open records." The board opened its June 19 meeting at the request of the Herald-Leader.
On June 17, after the newspaper published stories about the salaries and expenses of top league executives, it asked the group for records of the group's payments to law firms. That prompted this week's letter. The league had denied an earlier request, for records of payments to the firm where Executive Director Sylvia Lovely's husband, Bernard Lovely, is a partner. (Read more)
UPDATE: Sylvia Lovely has resigned as executive director of the league.
Monday, June 22, 2009
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.
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.
Thursday, June 18, 2009
League of Cities invites Herald-Leader to tomorrow's board meeting
UPDATE: Sylvia Lovely has resigned as executive director of the league.
The Kentucky League of Cities board has agreed to open its meeting tomorrow, at which directors are expected to discuss spending and other management issues in the wake of Lexington Herald-Leader stories about the organization that lobbies for cities and in the last 20 years has become their major insurer.
"Our board must be aware of all aspects of our business, including but not limited to compensation policies and guidelines," KLC Executive Director Sylvia Lovely, right, said in an op-ed article in the newspaper today. "And, while we hold to the belief that we are not subject to the open-meetings statutes, we invite the Herald-Leader to come to our meeting on Friday."
Herald-Leader Editor Peter Baniak told the Kentucky Open Government Blog, “We’re pleased that the Kentucky League of Cities has decided to open the meeting because what the league does is of vital public interest to cities, their employees and citizens. We hope the league will continue to be transparent.”
While the league is not covered by the state Open Meetings Act, it appears to be covered by the Open Records Act, which applies to any entity that gets at least 25 percent of the money its spends in Kentucky from state or local authority. The league fulfilled the open-records requests of Herald-Leader reporter Linda Blackford.
Lovely wrote that Blackford's articles "portray an executive with a sense of entitlement to rewards that are beyond the reach of public-sector leaders in our state. None of my compensation would probably have been written about if the paper accepted the League's position that we are in a competitive insurance business and have generated revenues during my tenure on the order of private companies. The insurance program was offered as a replacement for private insurance companies which stopped offering coverage to cities in the late 1980s. We now compete with these companies for city insurance business. The CEOs of those private companies typically earn much more than I in compensation and benefits, work no harder than I do, and do the same kind of business travel for similar purposes." (Read more)
UPDATE, June 19: The KLC board voted today to create a committee to review policies and procedures. It suspended expenditures at Lexington’s Azur Restaurant, which is one-fifth owned by Lovely's husband, Bernard Lovely; suspended travel for spouses of the executive staff; and decided to replace the sport-utility BMW that is part of Lovely's compensation.
The Kentucky League of Cities board has agreed to open its meeting tomorrow, at which directors are expected to discuss spending and other management issues in the wake of Lexington Herald-Leader stories about the organization that lobbies for cities and in the last 20 years has become their major insurer.
"Our board must be aware of all aspects of our business, including but not limited to compensation policies and guidelines," KLC Executive Director Sylvia Lovely, right, said in an op-ed article in the newspaper today. "And, while we hold to the belief that we are not subject to the open-meetings statutes, we invite the Herald-Leader to come to our meeting on Friday."Herald-Leader Editor Peter Baniak told the Kentucky Open Government Blog, “We’re pleased that the Kentucky League of Cities has decided to open the meeting because what the league does is of vital public interest to cities, their employees and citizens. We hope the league will continue to be transparent.”
While the league is not covered by the state Open Meetings Act, it appears to be covered by the Open Records Act, which applies to any entity that gets at least 25 percent of the money its spends in Kentucky from state or local authority. The league fulfilled the open-records requests of Herald-Leader reporter Linda Blackford.
Lovely wrote that Blackford's articles "portray an executive with a sense of entitlement to rewards that are beyond the reach of public-sector leaders in our state. None of my compensation would probably have been written about if the paper accepted the League's position that we are in a competitive insurance business and have generated revenues during my tenure on the order of private companies. The insurance program was offered as a replacement for private insurance companies which stopped offering coverage to cities in the late 1980s. We now compete with these companies for city insurance business. The CEOs of those private companies typically earn much more than I in compensation and benefits, work no harder than I do, and do the same kind of business travel for similar purposes." (Read more)
UPDATE, June 19: The KLC board voted today to create a committee to review policies and procedures. It suspended expenditures at Lexington’s Azur Restaurant, which is one-fifth owned by Lovely's husband, Bernard Lovely; suspended travel for spouses of the executive staff; and decided to replace the sport-utility BMW that is part of Lovely's compensation.
Monday, June 15, 2009
Open courtrooms help ensure fair trials
The following opinion piece has appeared in several Kentucky newspapers.
By Mike Farrell
The governor is on the witness list. The president of the state Senate may also be called to testify. One defendant, a former head of the state Transportation Cabinet, is accused of taking bribes while providing inside information to another defendant, a road contractor. Can anyone imagine a scenario in which the public has more interest, or more right, to know what is happening as the wheels of justice turn?
This is a public corruption case. If the defendants are guilty they have defrauded the taxpayers. The indictment alleged that the scheme between former Secretary William Nighbert and contractor Leonard Lawson resulted in Lawson winning state road contracts worth $130 million.
Despite the obvious stake the taxpayers of this state have in this federal court case and despite prior federal court rulings that courts must be open, a U.S. magistrate judge held a secret hearing on important motions excluding both the public and the media. He did so without issuing proper notice or publishing his reasons.
This is neither a confused area of the law nor an insignificant one. The Supreme Court of the United States settled this issue long ago. In 1980, the justices said open courts help ensure that prosecutors and judges don’t abuse their authority and that the public’s confidence in the court system is sustained. Open courts help protect the right of the defendants to a fair trial because people are watching.
“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Chief Justice Warren Burger wrote. “When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.”
In 1986, the Supreme Court ruled that the right to a public trial extended to preliminary hearings, in part because they have traditionally been open. The court cited the 1807 preliminary hearing for former Vice President Aaron Burr on treason charges, which was moved to a larger courtroom because of the crush of observers.
U.S. District Judge Danny Reeves overlooked all of that when he said the magistrate’s decision to close a hearing in the corruption case was justified because of the amount of pre-trial publicity. It is the court’s responsibility to protect the defendants’ Sixth Amendment right to a fair trial. But the Supreme Court has never said that should be accomplished while trampling the public’s right to open courtrooms. In fact, appeals courts have outlined alternatives so that hearings and trials are conducted in the open, allowing the public and the media access.
Defense attorneys complain often during a high-profile trial like this one that stories in newspapers about the case will make it difficult to seat a jury capable of meeting the Sixth Amendment’s standard of a fair trial. In response, Judge Reeves already has moved the trial from Frankfort to Covington, where much of the population does not work for the state government and is less likely to have read every story as intently as people who live in Central Kentucky.
While unsealing the transcript of the secret hearing, after attorneys for the Courier-Journal and the Herald-Leader objected, Judge Reeves chastised the media for keeping the public informed. "Everything that happens in this case ends up in the newspapers," Reeves said, according to The Courier-Journal. "There are certain things that don't need to be disclosed."
It is more than disappointing that a federal judge with a lifetime appointment shows such little respect for the role of a free press in a democratic society. Open courts are as important for public confidence in the judiciary as fair trials. Open courts help ensure fair trials. Federal judges and magistrates should understand the lessons the Supreme Court taught nearly 30 years ago.
Secrecy, the kind that occurred in this case, undermines both the First and Sixth amendments to the Constitution. Secrecy and democracy are enemies, and every judge should understand that.
Mike Farrell is the director of the Scripps Howard First Amendment Center, and an assistant professor in the School of Journalism and Telecommunications, at the University of Kentucky.
By Mike Farrell
The governor is on the witness list. The president of the state Senate may also be called to testify. One defendant, a former head of the state Transportation Cabinet, is accused of taking bribes while providing inside information to another defendant, a road contractor. Can anyone imagine a scenario in which the public has more interest, or more right, to know what is happening as the wheels of justice turn?
This is a public corruption case. If the defendants are guilty they have defrauded the taxpayers. The indictment alleged that the scheme between former Secretary William Nighbert and contractor Leonard Lawson resulted in Lawson winning state road contracts worth $130 million.
Despite the obvious stake the taxpayers of this state have in this federal court case and despite prior federal court rulings that courts must be open, a U.S. magistrate judge held a secret hearing on important motions excluding both the public and the media. He did so without issuing proper notice or publishing his reasons.
This is neither a confused area of the law nor an insignificant one. The Supreme Court of the United States settled this issue long ago. In 1980, the justices said open courts help ensure that prosecutors and judges don’t abuse their authority and that the public’s confidence in the court system is sustained. Open courts help protect the right of the defendants to a fair trial because people are watching.
“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Chief Justice Warren Burger wrote. “When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.”
In 1986, the Supreme Court ruled that the right to a public trial extended to preliminary hearings, in part because they have traditionally been open. The court cited the 1807 preliminary hearing for former Vice President Aaron Burr on treason charges, which was moved to a larger courtroom because of the crush of observers.
U.S. District Judge Danny Reeves overlooked all of that when he said the magistrate’s decision to close a hearing in the corruption case was justified because of the amount of pre-trial publicity. It is the court’s responsibility to protect the defendants’ Sixth Amendment right to a fair trial. But the Supreme Court has never said that should be accomplished while trampling the public’s right to open courtrooms. In fact, appeals courts have outlined alternatives so that hearings and trials are conducted in the open, allowing the public and the media access.
Defense attorneys complain often during a high-profile trial like this one that stories in newspapers about the case will make it difficult to seat a jury capable of meeting the Sixth Amendment’s standard of a fair trial. In response, Judge Reeves already has moved the trial from Frankfort to Covington, where much of the population does not work for the state government and is less likely to have read every story as intently as people who live in Central Kentucky.
While unsealing the transcript of the secret hearing, after attorneys for the Courier-Journal and the Herald-Leader objected, Judge Reeves chastised the media for keeping the public informed. "Everything that happens in this case ends up in the newspapers," Reeves said, according to The Courier-Journal. "There are certain things that don't need to be disclosed."
It is more than disappointing that a federal judge with a lifetime appointment shows such little respect for the role of a free press in a democratic society. Open courts are as important for public confidence in the judiciary as fair trials. Open courts help ensure fair trials. Federal judges and magistrates should understand the lessons the Supreme Court taught nearly 30 years ago.
Secrecy, the kind that occurred in this case, undermines both the First and Sixth amendments to the Constitution. Secrecy and democracy are enemies, and every judge should understand that.
Mike Farrell is the director of the Scripps Howard First Amendment Center, and an assistant professor in the School of Journalism and Telecommunications, at the University of Kentucky.
Tuesday, June 9, 2009
Mine-safety agency not living up to Obama's promises for transparency, Ky. lawyer says
The Mine Safety and Health Administration is getting heat from groups who claim the organization is withholding information that should be disclosed under the Freedom of Information Act.
OMB Watch reports that the secretive tactics of MSHA are not meeting the standards of a transparent government President Obama promised when his term began. In the past 25 years, Kentucky mine-safety attorney Tony Oppegard says, he has requested and received information from MSHA without issue. But, in October 2008, that openness stopped. Since then, Oppegard says MSHA has given him the runaround and cited several exemptions to the FOIA as reasons for withholding information, which he calls “utter rubbish.” He has denounced MSHA’s failure to disclose and reminded the agency's legal counsel of the Obama administration’s new FOIA policies.
In an article in Mine Safety and Health News, Oppegard wrote that more enforcement is needed to achieve transparency on the part of MSHA. “Miners can only hope – and trust – that when the new assistant secretary takes office, he will put a quick end to the agency’s blatant attempts to protect operators who have been charged with discrimination by miners,” he wrote. Obama has yet to name an assistant secretary of labor for coal-mine safety and health.
The subscription-only newsletter also reports that it has had difficulty extracting information from MSHA. In an editorial in the same issue, it says the agency’s secrecy is suspicious. "Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners, their families, industry and the press." (Read more) –From The Rural Blog
OMB Watch reports that the secretive tactics of MSHA are not meeting the standards of a transparent government President Obama promised when his term began. In the past 25 years, Kentucky mine-safety attorney Tony Oppegard says, he has requested and received information from MSHA without issue. But, in October 2008, that openness stopped. Since then, Oppegard says MSHA has given him the runaround and cited several exemptions to the FOIA as reasons for withholding information, which he calls “utter rubbish.” He has denounced MSHA’s failure to disclose and reminded the agency's legal counsel of the Obama administration’s new FOIA policies.
In an article in Mine Safety and Health News, Oppegard wrote that more enforcement is needed to achieve transparency on the part of MSHA. “Miners can only hope – and trust – that when the new assistant secretary takes office, he will put a quick end to the agency’s blatant attempts to protect operators who have been charged with discrimination by miners,” he wrote. Obama has yet to name an assistant secretary of labor for coal-mine safety and health.
The subscription-only newsletter also reports that it has had difficulty extracting information from MSHA. In an editorial in the same issue, it says the agency’s secrecy is suspicious. "Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners, their families, industry and the press." (Read more) –From The Rural Blog
Tuesday, June 2, 2009
Water board is a private entity, so it can bar members from meetings, attorney general says
A Rockcastle County water system can bar members from its meetings because it isn't a public agency, Attorney General Jack Conway said in an open meetings decision last week.
"Because Eastern Rockcastle Water Association, Inc. is a private, nonstock, nonprofit corporation organized under KRS Chapter 273, ERWA cannot properly be characterized as a 'public agency' within the meaning of KRS 61.805(2)," Conway said. "Accordingly, ERWA is not required to comply with provisions of the Open Meetings Act." It cited a 1978 attorney general's opinion.
The latest opinion, which has the force of law, was requested by Barbara Castleberry, who said ERWA President David Ballinger prevented her and four other customer-members of the association from attending its monthly board meetings at a county-owned facility. “A notice that limited attendance to Board Members, Board Attorney, General Manager, and Auditor was posted on the meeting room door,” Castleberry wrote. When she and the others tried to attend the meeting, “Mr. Ballinger called the Office of the Rockcastle County Sheriff, who sent two deputies to escort the group from the meeting room.”
Catstleberry argued that ERWA is referred to as "a public governmental agency" in an agreement it made with the Western Rockcastle Water Association. That was a reasonable argument, Conway said, but "none of that language is determinative on the facts presented. ... The Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act."
In a footnote, Conway noted that a private, nonprofit corporation may be a public agency for purposes of the Open Records Act even if not covered by the Open Meetings Act. The Open Records Act applies to entities that get at least 25 percent of the funds they expend in the Commonwealth from state or local authorities. The decision is No. 09-OMD-81.
In an Open Records Decision, 09-ORD-079, Conway said the Cabinet for Health and Family Services did not violate the law by not providing copies of copyrighted material used by the Department for Medicaid Services in making determinations of clinical appropriateness.
"Because Eastern Rockcastle Water Association, Inc. is a private, nonstock, nonprofit corporation organized under KRS Chapter 273, ERWA cannot properly be characterized as a 'public agency' within the meaning of KRS 61.805(2)," Conway said. "Accordingly, ERWA is not required to comply with provisions of the Open Meetings Act." It cited a 1978 attorney general's opinion.
The latest opinion, which has the force of law, was requested by Barbara Castleberry, who said ERWA President David Ballinger prevented her and four other customer-members of the association from attending its monthly board meetings at a county-owned facility. “A notice that limited attendance to Board Members, Board Attorney, General Manager, and Auditor was posted on the meeting room door,” Castleberry wrote. When she and the others tried to attend the meeting, “Mr. Ballinger called the Office of the Rockcastle County Sheriff, who sent two deputies to escort the group from the meeting room.”
Catstleberry argued that ERWA is referred to as "a public governmental agency" in an agreement it made with the Western Rockcastle Water Association. That was a reasonable argument, Conway said, but "none of that language is determinative on the facts presented. ... The Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act."
In a footnote, Conway noted that a private, nonprofit corporation may be a public agency for purposes of the Open Records Act even if not covered by the Open Meetings Act. The Open Records Act applies to entities that get at least 25 percent of the funds they expend in the Commonwealth from state or local authorities. The decision is No. 09-OMD-81.
In an Open Records Decision, 09-ORD-079, Conway said the Cabinet for Health and Family Services did not violate the law by not providing copies of copyrighted material used by the Department for Medicaid Services in making determinations of clinical appropriateness.
Wednesday, May 13, 2009
Latest open records decisions
The Kentucky attorney general has issued two more open records decisions:
1. 09-ORD-071 (Mercer County)
Decision adopting 08-ORD-044; Northpoint Training Center did not violate the Open Recods Act in declining to provide copies to requester because his inmate account contained insufficient funds to pay the reproduction charges. In accordance with KRS 61.874(1), Friend v. Rees, Ky. App. 696 S.W. 2d 125 (1985), and prior decisions of this office, the denial is affirmed.
2. 09-ORD-072 (Campbell County)
Decision adopting 08-ORD-6; because records in the custody of the circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the attorney general has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Campbell Circuit Court Clerk did not violate the act by failing to respond upon receipt of the request as would otherwise be required by KRS 61.880(1).
Full texts of the decisions can be found via the Links of Interest below.
Tuesday, May 12, 2009
Lawyer unworried by court open meetings ruling
First Amendment lawyer Jon Fleischaker, architect of Kentucky's open records law, says he's unworried by a federal appeals court ruling that the Texas Open Meetings law could be unconstitutional.
"Perhaps I'm foolish," Fleischaker said in an email, "but I am not bothered. Efforts to use this case will spread, but I do not think the court's reasoning or the result is logical or will be adopted."
A panel of The Fifth Circuit U.S. Court of Appeals in New Orleans ruled Monday in Rangra v. Brown that elected officials have a First Amendment right to talk to each other in private despite the Texas Open Meetings law. It said the Texas law would have to pass stringent constitutional muster and ordered the original trial court to review the case, which involved two city council members exchanging emails on whether to call a council meeting on a public contract issue. The lower court had said the email exchange violated the state law.
The Reporter's Committee for Freedom of the Press has urged the full appeals court to rehear the case, fearing the decision could bring constitutional challenges to open meetings laws across the country
"If this decision is allowed to stand, local elected officials throughout the Fifth Circuit could violate the open meetings laws in their states with impunity," said Lucy A. Dalglish, executive director of the Reporters Committee. "Such a scenario would make a mockery of open government in those states."
A more detailed report on the case can be found at www.rcfp.org/newsitems/index.php?i=10747
"Perhaps I'm foolish," Fleischaker said in an email, "but I am not bothered. Efforts to use this case will spread, but I do not think the court's reasoning or the result is logical or will be adopted."
A panel of The Fifth Circuit U.S. Court of Appeals in New Orleans ruled Monday in Rangra v. Brown that elected officials have a First Amendment right to talk to each other in private despite the Texas Open Meetings law. It said the Texas law would have to pass stringent constitutional muster and ordered the original trial court to review the case, which involved two city council members exchanging emails on whether to call a council meeting on a public contract issue. The lower court had said the email exchange violated the state law.
The Reporter's Committee for Freedom of the Press has urged the full appeals court to rehear the case, fearing the decision could bring constitutional challenges to open meetings laws across the country
"If this decision is allowed to stand, local elected officials throughout the Fifth Circuit could violate the open meetings laws in their states with impunity," said Lucy A. Dalglish, executive director of the Reporters Committee. "Such a scenario would make a mockery of open government in those states."
A more detailed report on the case can be found at www.rcfp.org/newsitems/index.php?i=10747
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