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.

Paper entitled to records on county loan to rival, or a better reason why kept secret, AG says

The McCreary County Fiscal Court and the county Industrial Development Authority need to give one of the county's newspapers records relating to a $60,000 loan the county made to the other paper to start a television station, or they must explain why it shouldn't, the office of the attorney general ruled in an open-records decision released today.

The McCreary County Record asked County Judge-Executive Blaine Phillips for "any documentation concerning a loan to The McCreary County Voice and/or its agent, Patricia Stephens." Phillips declined, citing to News Editor Janie Slaven the exception in the Open Records Act for "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained in conjunction with an application for or the administration of a loan or grant."

The decision, written by Assistant Attorney General Amye Bensenhaver, said, "While it is possible that some records, or portions of records, submitted by the loan applicant, such as financial statements or a description of the applicants’ financial stability, may qualify for protection . . . KRS 61.880(2)(c) assigns the burden of proof in sustaining the denials of Ms. Slaven’s requests to the agencies, and no proof of any kind is submitted in support of those denials. It is for this reason that the agencies’ responses are both procedurally and substantively deficient."

The decision puts the ball back in the county's court, to turn over the records, give a more detailed reason or challenge the opinion in circuit court. Here is the Record's Nov. 25 report on the loan. The Voice Web site is at http://newspaper.tmcvoice.com/.

Senator reintroduces bill on 911 calls

A Northern Kentucky state senator has reintroduced a bill for the upcoming legislative session to prohibit the broadcast of 911 recordings.

Sen. John Schickel, R-Union, has argued that the bill would protect the identity of people making 911 calls, although identifying information would still be available in transcripts.

The Society of Professional Journalists published a letter Tuesday urging a similar bill in Ohio be withdrawn, saying it would diminish the news media's ability to report on breaking events.

"If audio recordings are banned from the public airwaves then it will be virtually impossible for citizens to hear how calls are being handled and effectively hold emergency response centers accountable," the SPJ letter said. "Ohio courts traditionally have ruled in favor of disclosure of 911 tapes for all to hear for good reason - it ensures the public trust in its institutions regarding the safety and welfare of citizens."

When Schickel introduced the bill in the 2009 session, he said he wanted to prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final pleas of victims. The bill passed the Senate in the 2009 session but failed to pass the House.

Last year, the Kentucky bill was opposed by the Kentucky Press Association and the Kentucky Broadcasters Association, even though both organizations noted that such calls are rarely actually broadcast. In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike.

The bill, SB 308, would "restrict the availability of recordings of 911 communications to releases by court order," but would allow written transcripts.

Kentucky court system spending data now on searchable state Web site; salary data later

Kentucky courts recently joined the "e-Transparency initiative" launched by the executive branch of state government this year. Judicial Branch expenditures and contracts are now posted at www.opendoor.ky.gov. (Click on Start Your Search at OpenDoor, then on Expenditure Search and then select Judicial Branch under Expenditure Search.)

There is a searchable database of line-item expenditures by the courts going back to January 2007. Salary information will be added in coming months, the office of Chief Justice John D. Minton Jr. said in a news release. “I’m pleased to join the Executive Branch in providing comprehensive financial information on the OpenDoor website,” Minton said. “This is part of our ongoing effort to increase the court system’s accountability to Kentucky taxpayers.”

The Judicial Branch is comprised of four levels of state courts – the Supreme Court, the Court of Appeals, Circuit Court and District Court. The Administrative Office of the Courts supports the activities of approximately 3,800 Kentucky Court of Justice employees, including the elected justices, judges and circuit court clerks.

Louisville judges say juvenile case of soldier guilty in military homicide should be opened

In the latest move toward opening of juvenile courts in Kentucky, a Louisville judge has affirmed a lower court's ruling that a newspaper could "inspect the homicide case of a 12-year-old boy charged a dozen years later with murdering a fellow ex-soldier in Colorado," reports The Courier-Journal, which sought the rulings. The paper's lawyer, Jon Fleischaker, said the case could help persuade other judges to open certain juvenile cases.

The case "captured national media attention as an example of the horrific crimes committed by some Iraq war veterans," Andrew Wolfson writes, adding that the newspaper wants to see if the juvenile case "was properly handled" and whether the perpetrator, Kenneth Eastridge, "should have been prohibited from enlisting later in the Army."

The judges said "the usual protection of the confidentiality of minors in criminal cases was outweighed by the fact that Eastridge was now an adult, the severity of the current murder charge and the public interest in learning from his case," Wolfson reports. "Assistant Public Defender J. David Niehaus said he will ask the state Court of Appeals to hear the case." (Read more)

Attorney general says state police broke records law, unemployment board broke meetings law

Kentucky State Police should have released information, including 911 tapes, on the death of William Sparkman in the Daniel Boone National Forest when requested by a reporter for The Associated Press, the state's attorney general has ruled.

While the state Open Records Act allows police to withhold information in cases under investigation, they must specify exactly what harm would be done by releasing it, the ruling said. Since they did not do so in this case, they violated the law, it said.

In another ruiling, the attorney general said the state's Unemployment Insurance Task Force violated the Kentucky Open Meetings Act. The office ruled in favor of The Courier-Journal, which had complained that the task force excluded the press and public when it split into several small groups to consider changes to the state's unemployment insurance program.

Full texts of these and other decisions issued Monday can be found via the Links of Interest at the bottom of ther KOG Blog.

Key lawmaker, advocacy group back opening records of severe child abuse and neglect

Kentucky, which leads the nation in deaths of abused and neglected children, should open its records in such cases and those involving severe injuries, the chairman of the state House Health and Welfare Committee and the head of Kentucky Youth Advocates said yesterday.

"State Rep. Tom Burch, D-Louisville, said Friday he will introduce legislation in the 2010 General Assembly that would require state child-protection officials to release their records on children who died or were severely injured as a result of abuse or neglect," reports the Lexington Herald-Leader. Burch told the newspaper that it's possible state employees "didn't do their job right or they had heavy caseloads and didn't have time to look at the case sufficiently."

House Speaker Greg Stumbo told the paper, ""The House is more than willing to look for ways to make life safer for our youngest citizens, and if Rep. Burch believes this is an effective approach to take, I expect the chamber will be supportive of his efforts." Stumbo and Burch are Democrats; the Senate is controlled by Republicans, and Senate President David Williams said he would have to see the legislation before commenting.

KYA Executive Director Terry Brooks, said his group would support the bill and a separate measure to open at least some proceedings in Family Court. "The current undue emphasis on confidentiality only hides issues in the child-welfare system," he told the Herald-Leader. "Broader public exposure is a beginning step to fixing many of the issues that afflict child protection. It is a tough proposition but the right balance can be found between privacy rights, system accountability and disclosure for the sake of system improvements." (Read more)

Chief Justice continues to support legislation to open some Family Court proceedings

Kentucky Chief Justice John Minton Jr. would support another effort by the legislature to open family court proceedings to the public, according to a statement from his office to Kentucky Citizens for Open Government.

Reacting to The Courier-Journal's reporting on Family Court proceedings in Jefferson County, Minton's statement said he supported Judge Joan Byer's decision to allow access to a Courier-Journal reporter with the permission of the parties and the condition that no one be identified. Under court rules, Family Court proceedings are normally closed to the public, because they often involve juveniles, but judges have discretion to open them.

“We have a number of judges who work daily in the system who have openly expressed their support for allowing the public to see what is going on in certain types of juvenile proceedings," Minton said. "These judges are attempting to follow model programs that have been successful across the country and to bring best practices to the courts of Kentucky. I support the work of these judges and encourage their efforts to provide greater accessibility."

Minton noted that the General Assembly declined last year to pass a bill setting up a pilot project to open some Family Court proceedings. "I would support similar legislation if introduced again,” he said.

UPDATE, Dec. 19: Yetter picked up on Minton's statement to KCOG and the KOG Blog and wrote a front-page story quoting him and legislators on the issue: "Rep. Susan Westrom, D-Lexington, a co-sponsor of the 2008 bill, said she’s willing to try again given the extent of problems that appear to beset the state’s child-protection system. Opening the courts might be a step toward shedding some light on the state’s overall system of protecting children from neglect and abuse, she said." Yetter notes, "Half the 50 states — including Indiana, Tennessee and Ohio — permit some access to juvenile and family courts, according to a 2008 joint report by the Children’s Advocacy Institute at the University of San Diego Law School and First Star, a Washington child advocacy group."

State police should release first page of report on death investigation, attorney general rules

The Kentucky State Police violated the state open-records law in denying the Kentucky New Era's request for an initial report on the September death of a Mayfield woman, the state attorney general's office has ruled in an appeal filed by the Hopkinsville newspaper.

The police denied News Editor Julia Hunter's request on grounds that the investigation was still active, and KSP lawyer told the attorney general's office that the police do not "create initial offense reports or incident reports," an assertion that appears in boldface type in the decision, perhaps because it was so surprising, or unbelieveable.

Attorney General Jack Conway said the first page of the KSP's standard report form is the functional equivalent of an "initial offense report," which is supposed to be public. "As a general policy matter, this office recognizes that the public has the right to know when crimes are being committed in their community and to obtain information, through the Open Records Act, which would establish whether or not law enforcement agencies are actively investigating those crimes and pursuing wrongdoers," the ruling said, noting that there is "no other initiating document by which the public can be informed of the existence of this investigation."

The decision said "KSP has not demonstrated with specificity the harm that would result from disclosure of any information" in the report, so it should redact any information exempt from mandatory disclosure, then release the report. Hunter noted in her appeal that the police issued a news release that gave basic facts about the incident, so "It seems improbable the release of the report would jeopardize an investigation."

The full text of this and other attorney general rulings issued Tuesday can be found via Links of Interest at the bottom of the KOG Blog.

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

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

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

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

Courier-Journal reporter, photographer get a rare look at Family Court in Jefferson County

The Courier-Journal recently persuaded a Jefferson County Family Court judge to ease Kentucky's strict confidentiality rules long enough to allow reporter Deborah Yetter to research and write a rare report on, and photographer Matt Stone to take pictures of, the court's operations.

The report, the third part of a series on child abuse in the state, was published Tuesday. The story took a close look at several cases involving abused and abandoned children. Judge Joan Byer allowed access "with permission of the parties in the courtroom, as long as children and families weren't identified," Yetter wrote. "Byer said she exercised her discretion to do that because she believes, in most cases, the courts should be open and the public needs to understand what's going on with child welfare." Byer said the system is overburdened and caseworkers are under intense pressure to keep cases closed. (Photo by Matt Stone)

The report included several sidebars, one of which noted that the confidentiality rules usually followed in family court cases exceeded the requirements set by state law, and the practice of some other states. It also quoted childrens' advocates and others as saying excessive secrecy hides faults in the system. The main story can be found here. The sidebar on confidentiality rules is here.

Federal government sets new transparency goals

The Obama adminstration has made a major move toward realizing the president's promise, upon taking office, of more transparency in government. This has impact not just in Washington, but at the state and local offices of federal agencies.

All federal agencies have been ordered to carry out specific tasks and meet deadlines to increase public access to government information. The Office of Management and Budget last week issued an 11-page directive that also calls for agencies to use technology to distribute information, without waiting for people to file Freedom of Information Act requests.

The directive says that in order "to create an unprecendented and sustained level of openness and accountability in every agency, senior leaders should strive to incorporate the values of transparency, participation and collaboration into the ongoing work of their agency."

Among the tasks set out for federal agencies to meet in the first 45 days are:

-- Publish three "high-value" sets of data that have not previously been released in a downloadable format. (This could produce several local news stories, since federal agencies amass a huge amount of data.)

-- Designate a high-level official to be accountable for spending data made available to the public.

-- Form a new working group of senior officials to address transparency and accountablity issues.

The order also sets out other tasks to be accomplished in 60 or 120 days, including more open-goverment Web sites and plans for more transparency.

The full text of the OMB order can be found here.