Legislature puts salaries and expenses online

The Kentucky General Assembly has made legislative salaries and expense payments available on its website, http://www.lrc.ky.gov/, at this page: http://www.lrc.ky.gov/expenditures/default.aspx.

Online paper highlights procedural open-meetings violation but forgoes complaint

An online newspaper based in Louisa prominently noted the Lawrence County Fiscal Court's violation of the state Open Meetings Act in a story this week, but said in the article that the paper would "not file a complaint because the mistake was obviously not intentional." The first paragraph of Roberta Blevins' story in The Levisa Lazer said the new set of magistrates held their first meeting and handled routine transition business. The next three paragraphs read:

The special meeting was not advertised nor was the press sent an agenda or notice of the meeting, said Michelle Miller, who is remaining as secretary in the judge’s office under new Judge/Executive John Osborne. She said she understands this is a violation of the Kentucky Open Meetings Law.

Ms. Miller said the special meeting was announced at the swearing in ceremony last week, but formal notification was not made. The courthouse was closed Thursday and Friday of last week because, Ms. Miller said, state computers are shut down during those days and business cannot be done which comes from the state. This could be the reason notice was not officially given for the organizational get together, she said.

The Lazer management has decided to not file a complaint because the mistake was obviously not intentional.

A "complaint" could take the nature of an appeal to state Attorney General Jack Conway, who could rule that actions taken at the meeting were null and void because the meeting was not legal. The open-meetings violation was not mentioned in the story's headline, which reported that the court named a former magistrate as road foreman.
 
The story ended with another meetings issue, noting that "Several citizens have complained that the meetings are not held at a time when they can attend." The court meets at 10 a.m. twice a month. "Osborne has said he will look into changing the meeting time if enough people request a move to an evening hour so that working men and women can attend if they so choose," Blevins writes. (Read more)

Man who attended meeting can't get recording of it because group was promised confidentiality

A man who attended a community focus group whose members had been promised anonymity by university researchers does not have a right of access to audio, video or other recordings of the meeting, the state attorney general's office ruled in an open-records decision dated Dec. 22 and released today.

"Records that are available to one are generally available to all," and Mark Donham of Paducah "stands in the same shoes as any other open-records requester, notwithstanding his presence at the sesssions," said the decision, written by Assistant Attorney General Amye Bensenhaver for Attorney General Jack Conway. It agreed with the University of Kentucky that "There is no way to provide the recording without both identifying the participants and the statements they made under this explicit promise of confidentiality" from the Kentucky Research Consortium for Energy and the Environment, comprising a group of UK researchers.

The promise is a standard one involving university research involving human subjects. In an earlier decision, the attorney general ruled that UK researchers improperly refused to allow Donham to keep material that had been handed out at the session in Paducah. It said the university was correct in refusing a records request for names of participants but did not have the right to insist on return of "visualizations" given out at a subsequent session. The consortium has been studying possible uses for the Paducah Gaseous Diffusion Plant, which enriches uranium under a federal contract. Donham had refused to return a computerized visualization of the site as a nuclear power plant, one of the uses being considered. After an argument, university representatives threatened to call the police. Donham returned the material then filed an open-records request and appeal.

In his latest appeal, Donham said he didn't ask for names of all participants, just the "advisory board members for the study." The attorney general said those members had also been promised confidentiality. It did fault the university for not providing Donham a copy of its final argument during the last appeal, which Donham said inaccurately chacterized his actions at the meeting. He argued that the recordings would prove him correct, but the attorney general said, "However compelling his personal need to the recordings may be, we focus on his legal entitlement to the recordings or lack thereof."

State releases records in baby's death at meth lab; newspapers seek more

UPDATE, Dec. 8: The judge yesterday ordered the state to give him all the records on the case by 10 a.m. today, along with a document list to give the newspapers. He said he would decide what records to make public. For a detailed story by the Herald-Leader's Beth Musgrave, click here.

A toddler who died last year at a methamphetamine lab near Monticello drank drain cleaner, which is used in making meth, according to records released by order of Franklin Circuit Judge Phillip Shepherd, the Lexington Herald-Leader reported Tuesday.

Attorneys for the Herald-Leader and the Courier-Journal are asking Judge Shepherd to hold the state Cabinet for Health and Family Services in contempt and to force it to release additional records related to the child's death still being held under seal.

The Herald-Leader had filed suit under the state's Open Records Act after the cabinet refused to release details in the death of 20-month-old Kayden Branham, right. The boy's father, Bryan Daniels, was charged with murder, and along with several others, with making meth. That trial is scheduled for January. Both the toddler and his mother, Alisha Branham, were under the supervision of the state system for abused and neglected children at the time of his death.

Both newspapers reported the records it received under Judge Shepherd's court order were incomplete, and some information contained in documents that were released had been redacted by the cabinet.

"The Herald-Leader strongly believes that the state should produce all records in this case, including any that reflect the cabinet's contact with the family and its conduct prior to Kayden's death," Editor Peter Baniak said in the newspaper's story. "Without such transparency, there is no way for the public to assess whether the state child-welfare system appropriately handled this case. That's why we took this case to court in the first place."

“They have not given us nearly all the records the judge ordered them to give us,” said Jon Fleischaker, a lawyer for The Courier-Journal. “I think there are major problems with their attempt to comply with the court order.”

In ordering the records released, Shepherd wrote, "It is not unwarranted for the public, and the press, to want to know what happened when a 20-month-old child in the care and legal custody of the Commonwealth of Kentucky winds up dead after drinking toxic substances in a meth lab."

For the full story in the Herald-Leader, go here. The Courier-Journal's story is here.

Kenton County judge cites sewer district, slams lawyers in open records case

Northern Kentucky's Sanitation District #1 "repeatedly and willfully" violated the state's open records act in a dispute with an Independence construction company over sewage overflows, a Kenton County Circuit Court judge has ruled.

But Judge Martin Sheehan also slammed the Coppage Construction Company's lawyers for piling up an "obscene" amount of billable hours in the case, awarding $25,000 in lawyers' fees and $13,133.78 in costs, instead of the $185,000 they had claimed.

In a colorful ruling against the sanitation district, Sheehan railed against the district's conduct, which he said "falls woefully short of the standards demanded by the Open Records Act," then slammed the construction company's lawyers as "a gaggle of gluttons at an all-you-can-eat buffet."

"More than an estimated $300,000 has been expended in what amounts to little more than a discovery dispute," he wrote. "That's obscene! One could wonder if the best interests of the clients have been lost in the fog of a battle of wills, ego and legal one-upmanship."

The dispute involves a long-running civil lawsuit between the two entities, in which Coppage filed requests for thousands of emails from the sanitation district, which provides sewage service for most of Northern Kentucky. The district delayed complying with the request for some two years, using what the judge called a "shotgun approach, asserting any and all explanations for its conduct which it could conjure up."

"Upon analysis of the totality of the circumstances, including but not limited to inadequate searches, inordinate delays, implausible explanations, insufficient and incomplete production of records, and possible illegal record destruction, there is but one conclusion that can be reached," Sheehan wrote in his opinion. "(The district) repeatedly and willfully violated the Open Records Act."

On considering the question of legal costs, which the act says may be awarded in cases of willful violation, though, Sheehan said the request by Coppage for $185,000 "fails the reasonableness test."

"Quite simply the request shocks the conscience and is excessive and overreaching in many respects," the judge wrote.

In his ruling, Sheehan laments that "as a result of the conduct of many attorneys practicing before this court during its 17 years on the bench, this Court finds itself, with increasing frequency, bemusing and bemoaning the declining civility of our chosen profession. Scorched-earth litigation tactics now reign supreme ... the corrosive effect of such poison is painfully evident in the current dispute. Over $300,000 expended bickering over discovery - incredible! Ludicrous! Obscene!"

For a full text of the opinion, go to www.uky.edu/comminfostudies/irjci/KentonCountyRecords.pdf.

Conway tells Shelby County to release records of law-enforcement calls to a certain address

Shelby County's 911 emergency dispatch service violated Kentucky's Open Records Act in denying a records request by a Shelbyville resident, Attorney General Jack Conway ruled last week.

The decision, which has the force of law, came in an appeal filed by Antoinette Taylor. She had asked for information on law-enforcement runs to 103 Grey Hawk Drive, Shelbyville, between May and September of this year. Taylor, who is listed as head of Act Now Ministries at 101 Grey Hawk Drive, could not be reached for comment.

Shelby County E911 Communications refused to give Taylor the data, citing a provision of the Open Records Act that exempts from disclosure records that "constitute an unwarranted invasion of privacy" of those involved. However, the attorney general's ruling said "The weight of legal authority, coupled with the facts of this case, militate in favor of disclosure." The decision noted that decisions on exceptions from the law must be made on an individual basis, not as a blanket rule, and that the agency claiming such an exemption must provide proof to support it.

The ruling also cited a previously unpublished decision of the Kentucky Court of Appeals in January 2009, before the Kentucky Open Government Blog began. The three-judge panel voted 2-1 to order the Marshall County E911 board to release call recordings, not just data about calls. The appeals court noted that there were competing interests between "the 911 caller's right to privacy when seeking police assistance versus the public's right to know about the conduct of government agencies." It noted that possible embarrassment to the caller in that case was insufficient, and that all such decisions are "intrinsically situational, and can only be determined" on a case-by-case basis.

For the full text of the attorney general's decision, see Links of Interest at the bottom of the KOG Blog. For the appeals court decision, go here.

Minton orders accounting of sealed cases

Chief Justice John Minton Jr. has ordered all circuit court clerks and judges in Kentucky to make public at least the case numbers and names of parties in thousands of sealed court cases, according to The Courier-Journal.

The Louisville newspaper said the action came after it asked for an accounting of 3,600 cases sealed from public view over the past decade. Minton sent an email to clerks and judges reminding them that sealing court cases should be done rarely and "only for compelling reasons," and that the existence of such cases should never be hidden from the public.

Minton told the newspaper that in recent years, after Kentucky adopted new computer technology, cases that were sealed were moved to the "confidential division," and even the case numbers and participants were hidden. That was a mistake, he said, and the Kentucky Department of Technology would begin immediately change the programming involved. Clerks will also be asked to "make adjustments to previously sealed cases," the paper quoted Minton as saying.

The change will not open the sealed cases, but will reveal docket numbers and parties involved. Jon Fleischaker, who represents the Kentucky Press Association, The Courier-Journal and some other news outlets, said Minton's order was a step toward more transparency.

Butler County Fiscal Court loses open meetings appeal

Butler Circuit Court Judge Ronnie Dortch has denied an appeal filed by the county's fiscal court on an open meetings case originally filed by local citizen activist Robert Cron.

Cron had appealed to the state attorney general over a series of private meetings between four members of the fiscal court and Sheriff Joe Gaddie last year to discuss the budget for the sheriff's department.

The attorney general's office ruled in March that the meetings violated the state's Open Meetings Act. The fiscal court appealed the ruling to the circuit court, which in a brief statement turned down the appeal. However, Dortch said he found no willful intent to violate state law by the fiscal court. That precluded any award of attorney's fees or court costs.

Cron ran an unsuccessful campaign for judge-executive in the recent election.

This is not the first time Butler County Fiscal Court has disregarded its obligation to the law and to the residents of the county by holding secret meetings. In January 2009, the attorney general held that the fiscal court's finance committee had violated the open meetings law by not giving public notice of its meetings.

Courts rule against two state agencies

Two Kentucky courts have made pro-transparency rulings recently.

Franklin County Circuit Judge Phillip Shepherd has awarded attorney's fees and court costs to the Lexington Herald-Leader and the Louisville Courier-Journal in a case against the Cabinet for Health and Family Services.

The papers had asked for records related to the death of Kayden Daniels, a toddler under "custody and control" of the cabinet when he died at an alleged meth lab. The court, which had earlier ruled the records had to be released under the Open Records Act, in this follow-up decision took issue with the cabinet's blanket refusal to release individual child fatality reports, labelling it a "willful" and intentional violation of the law. "A party requesting public records who prevails in a judicial action ... at a minimum, should be made whole ... when the denial of access is an intentional policy of the agency rather than administrative oversight, bureaucratic confusion, or negligence," the ruling said. It awarded the two papers a total of $20,737.69 in fees and costs. (Kentucky circuit court decisions are available online only to lawyers and state and local officials, so no link could be provided).

"The court recognizes that the Open Records Act is there for the good of the public as a whole," said media attorney Jeremy Rogers, who represented the Courier-Journal in the case. "This opinion acknowledges the reality that court cases to protect rights under the Open Records Act can be costly. However, the court has properly viewed the law’s provision for attorneys’ fees as an incentive for public agencies to comply with the law and as an incentive for members of the public to vindicate the public’s right to know. As the court wrote, '[w]ithout the provision for statutory attorneys fees, public officials would have a great incentive to deny valid open records requests secure in the knowledge that few, if any, parties will be willing to assume the burden of legal fees necessary to challenge such decisions in court.'"

In a separate case, the state's Supreme Court ruled against the Department of Revenue, which in several instances involving a tax refund appeal had refused to release records in a case filed by Mitzi Wyrick on behalf of Gannett Satellite Information Network, Inc. The department had cited the "civil litigation limitation" on the release of information, which provides for special exceptions in ongoing lawsuits. However, the Supreme Court ruled in this case the department did so in error. "The civil litigation limitation is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency," the ruling said. (For the full text, go to http://apps.courts.ky.gov/supremes/sc_opinions.htm, then search 2008-SC-000468-DG.pdf.

Some news outlets say state police are too stingy with information

By Terry Anderson
University of Kentucky School of Journalism and Telecommunications

Some Kentucky State Police posts routinely refuse to provide information that should be public, or ignore requests for information from local reporters, according to a survey of newspapers and broadcast stations.

Kentucky Citizens for Open Government surveyed news outlets in the state after the attorney general’s office said state police had “repeatedly violated” the Kentucky Open Records Act in a homicide case. (See 10-ORD-123 at http://www.ag.ky.gov/civil/orom/list.htm.)

Most of those surveyed said the KSP was generally good about releasing information, but slow, and nine of the 25 news executives who responded to the survey complained of difficulty in getting information from one or more of the KSP’s 16 regional posts.

“It’s consistently a pain to make it happen,” one news executive replied, and another described the local post’s information officer as “all but useless.”

Lt. David Jude, head of the KSP’s Media Relations Branch, said in an e-mailed statement, “Admittedly, we do continue to have relationship issues between our personnel and the media.” He said the agency “fully respects” its relationship with journalists, and “We believe in the mission of the media. . . . We train our cadets, first-line supervisors and telecommunications supervisors in what can be released to the media, how to work and understand the media and why this relationship is so important.”

The journalists said the state police’s reactions to requests for information varied widely among the posts. Each post has a designated, specially trained public affairs officer, but KSP spokesman John Hawkins said media outlets always have another option to obtain information. “There’s always somebody there for them to talk to.”

However, Timothy Kiger, publisher of the Grayson County News-Gazette in Leitchfield, said, “More often than not, it’s ‘the officer is off duty’ and there’s nobody else to give information. And when they do give information it’s only the barest tidbits. It’s like the proverbial blue wall.”

The widely varying replies to the survey indicated significant differences in the responsiveness of individual posts.

“We have not had any open-records issues with Post 2,” near Madisonville, said Tom Clinton, executive editor of The Messenger, the daily newspaper in Madisonville. “The degree of cooperation I have experienced during my 32 years as editor here has been largely determined by the post commander at the time.”

Clinton added, “The KSP is stretched pretty thin these days and getting timely information is always problematic when the officers have more pressing priorities.” In phone interviews, public affairs officers at several posts said they had additional duties. Even Jude, as chief spokesman for the KSP, is also designated head of the Highway Safety Program.

Phyllis McLaughlin, editor of the Trimble Banner in Bedford, said Post 5 at La Grange is “getting better, but they are far more reluctant to give information than any other law enforcement agency I’ve ever worked with anywhere else in my 25 years (as a journalist).”

Some editors were bluntly critical. Post 7 at Richmond is “all but useless,” said Michael Broihier, editor of The Interior Journal in Stanford. “Every day we get faxes about things that happen in surrounding counties, but never, ever to do we get one about Lincoln (County) without asking for it repeatedly.” Broihier said Trooper Chris Lanham, the post’s public affairs officer, had told him there “wasn’t room” for his newspaper’s fax number on the office fax machine and refused to take Broihier’s e-mail address. He said other requests for information on specific cases had been ignored.

Lanham acknowledged that the post had received complaints about him. “We’ve discussed this at post level in the past. A lot of times I’m not available because of other commitments – something might happen and the press not (get) information. A lot of times things happen and I’m not aware of them.”

Lanham said that he now has two “backups” at the post who can take inquiries. “That’s what we’ve done to try to alleviate those concerns from the media. It’s fairly new, but so far, so good.” He said other posts are now doing the same thing.

Sharon Burton, publisher and editor of the Adair County Community Voice, said the KSP’s Post 15 in her town of Columbia responds poorly to information requests.

Burton said in July that an officer at the post refused to give one of her reporters accident reports, contending that state law made such reports available only to the people involved and insurance companies. She called back and pointed out a section of the law that makes the reports available to news media. “The post captain then called me back and said we are entitled to the documents but I would need to send a request to Frankfort letting them know what I needed,” Burton wrote. “When I asked if I could get the reports the same day, he put me on hold then returned to tell me they have three days to respond. I sent an official open records request and am awaiting the response, but of course it will be past deadline for the current edition.”

Burton said she filed a records request with state police headquarters, then got a letter “telling me they have 10 days to transmit accident reports into the accident-report database and the ones I requested are not yet available.” She was incredulous. She said she finally got the reports Aug. 17. The accidents occurred on July 22 and 25.

The four other papers in the Columbia post area that responded to the survey gave the KSP favorable ratings. “We definitely try to keep the public informed,” post spokesman Bill Gregory said. “All media outlets have my cell phone number.” He noted that the post has an assistant public affairs officer, and said news people are often in a hurry, but that “our deadlines aren’t newspaper or radio deadlines.”

Jude blamed the initial negative response to Burton’s request on “an administrative specialist,” and added that “if the request had been referred to the public affairs officer or supervisor, I feel that a better resolution would have been reached.”

Jude confirmed that while officers may give out information orally to a reporter, when a request for an actual copy of a police report is made, there may be up to a 10-day delay for the report to be put into the KSP system, then up to a three-day wait allowed by the open-records law.

“It is understandable that a media outlet would become frustrated with these timelines when general information is all that was sought,” he said in an interview.

Requiring that a report be placed in the database before it is released is “silly,” said Jon Fleischaker of Louisville, a lawyer who has worked on open-records cases for Kentucky news outlets for decades.

“Where they get the 10-day thing, I don’t know,” Fleischaker said. “I don’t know what their internal systems are, but they have it at the post right away. I guarantee you if they have something good (to report) it’s going to get out (without waiting 10 days).” Fleischaker said he was not surprised about the complaints. “The best thing I can say about the state police over the years is that they’re inconsistent. It depends on what you’re asking for. If there’s stuff out there they don’t want you to know, they’re very bad.”

He said journalists’ requests to the state police for information “often result in a run-around – little bits and pieces are given out but they are not fair, complete and consistent.

“Some people are trying hard, but the ones who really control the information won’t give it out if they don’t want to.”

Jennifer Brislin, spokeswoman for the Justice and Public Safety Cabinet, which oversees the state police and its public-affairs officers, said, “We’re very pleased with the level of information released. If there is a case-by-case (problem), we’ll deal with it that way.”

Jude said, “I try to impress up on them that if time and the situation allows, provide basic information (as) to locations and what we are doing.” He said detailed responses should come from public affairs officers. “This is an ongoing process that we continue to work with. It seems in my travels that once the reporter or media outlet get to the proper person, we get the information out.”

Terry Anderson, former Middle East bureau chief of The Associated Press, is a lecturer in the School of Journalism and Telecommunications at the University of Kentucky and also works for the school’s Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues.

New SPJ president urges journalists to fight official secrecy, says it's growing at all levels

Journalists must redouble their efforts to fight growing secrecy, the new president of the Society of Professional Journalists told the organization's convention as it wrapped up Tuesday in Las Vegas.

"We are under attack, from the smallest communities to the federal government," Hagit Limor, left, a reporter for Cincinnati's WCPO-TV, told the crowd at her installation banquet. She quoted a report from Freedom of Information Committee Chairman David Cuillier, saying that in many communities "We have the equivalent of a police state."

Cuillier, right, a journalism professor at the University of Arizona, made an "Access Across America" tour to 33 states this spring and summer, including one in Louisville, funded by SPJ's Sigma Delta Chi Foundation. It won him two awards and much recognition at the convention. In his report he cited cases of "no access to jail logs, arrest reports, 911 logs, incident reports or scanner traffic," but said the biggest FOI problem "isn’t that government is denying record requests. The problem is that not enough journalists are submitting record requests. Small news organizations need much more training in access. In some newsrooms the reporters didn’t know they could ask for public records."

Limor, whose father survived the Buchenwald concentration camp and saw her sworn in, said the Holocaust wasn't reported for years though governments knew about it. "Ask him why we have to fight for press rights, for access to government records," she said. "We are part of something that is bigger than all of us, that depends on all of us." For more on the convention and SPJ see http://www.spj.org/.

Attorney general faults Kentucky League of Cities, City of Salyersville in open-records cases

The Kentucky League of Cities wrongly denied a Covington lawyer's request for information on how much the group paid its attorneys in a case he handled against them, the attorney general's office has ruled. The attorney general's decisions in open-records and open-meetings cases have the force of law unless overturned in court.

In another opinion, the attorney general's office found that the City of Salyersville "subverted the intent of the Open Records Act, short of denial of inspection," when it refused a request by Jeff Ross for city employee payroll records. The city had demanded that Ross be more specific. The original request was "adequate for a reasonable person" to determine what he wanted, the decision said.

In the League of Cities case, Brandon Voelker told the KOG Blog he planned to use the information in a lawsuit against the league, accusing it of wrongfully defending the first case, which involved a claim for damages caused by a Northern Kentucky sewer overflow. The league had provided insurance to the sewer district.

The league claimed that giving Voelker the information would create unfair competitive or commercial advantage to other insurance providers, since legal costs help make up its insurance rates. The opinion rejected the argument: "We are well aware that KLC occupies a unique position as a public entity, subject to the Open Records Act, that is engaged in a competitive business. Nevertheless, KLC offers no proof of competitive harm from disclosure of the records."

The opinion added, "The legislature's apparent goal in enacting these provisions was to expose KLC, and similarly situated public entities to the light of public scrutiny and not, simultaneously, to establish exceptions that swallow the rule of openness and accountability." For more background on KLC and the Kentucky Association of Counties' open-government issues, click here.

Danville editor wins James Madison Award for service to the First Amendment

John Nelson, editor of the Advocate-Messenger in Danville, Ky., last night received the James Madison Award for service to the First Amendment, presented by the Scripps Howard First Amendment Center in School of Journalism and Telecommunications at the University of Kentucky. (A-M photo by Clay Jackson)

Nelson, who also oversees editorial operations of other Schurz Communications newspapers in Kentucky, won the award because "He has fought for open government in a number of important ways," former Kentucky Post editor Judith Clabes, the award's first winner, said in presenting it to him. She cited the nomination from Kentucky Press Association Executive Director David Thompson, who wrote, “Few people in Kentucky are as adamant about open government. If more had the drive that John Nelson has exhibited during his journalism career, there would be a demand from every corner of the state that all public agencies operate in ‘sunshine’ and make the agency’s business truly the public’s business.”

As KPA president in 2004, Nelson led Kentucky's first statewide public-records audit and was instrumental in creating the KPA Legal Defense Fund and a lawsuit that KPA filed to open juvenile court proceedings. Federal courts rejected the suit's arguments, but the Court of Appeals "interpreted state law in a way it had never before been interpreted, giving judges an opening to allow the press into the courtroom at their own discretion," he said in his acceptance remarks. Nelson has also been president of the Bluegrass Chapter of the Society of Professional Journalists.

Paper appeals ruling on redacted police reports

The Kentucky New Era will appeal a court ruling that allows police to remove addresses and telephone numbers from crime reports before they're released, editor Jennifer P. Brown said Monday. She said Jon Fleischaker, one of Kentucky's top media lawyers, will represent the Hopkinsville newspaper in the appeal of the Christian Circuit Court decision last week.

The case stems from an open records request filed with the city of Hopkinsville by the New Era a year ago for arrest reports and incident reports about a suspicious fire. The city withheld "open case" files, but on those files it released, it removed information on race, gender, date of birth, ethnicity, addresses and telephone numbers.

The paper appealed to the attorney general's office, which ruled that the city could not apply blanket redactions to police reports, but must show case-by-case why certain information should be withheld. The city appealed to circuit court, which initially agreed with the attorney general, but last week amended its ruling to allow for the routine redaction of Social Security numbers, driver's license numbers, home addresses and telephone numbers. The paper agreed on the first two, but will argue against the withholding of addresses and phone numbers in its appeal.

Transparency Conference at UK Oct. 19-20

The University of Kentucky's College of Communications and Information Sciences will hold a two-day session next month on Transparency and Open Access to Information that includes a panel on open government and another on open media.
"Open 2.0" will begin Oct. 19 with sessions on Open Geographies, Open Governmenet, Open Media and Open Libraries. The next will have panels on Open Entrepeneurship, Open Finances and Open Source. The main guest speaker on Oct. 20 will be Dr. Sean Gorman, founder and president of FortiusOne Inc., an Arlington, VA-based company "founded to change the way organizations visualize and analyze data for real-time problem solving," according to the company's website. The title of Gormans speech is "What the human sensor net can tell us about markets, society and disaster."
Details of the schedule and location of the conference can be found at http://cis.uky.edu/open.

Attorney general's office says 2 fiscal courts and a city commission violated open-meetings law

In decisions released today, the state attorney general’s office said the city of Danville and some county fiscal courts violated state open-government laws. The attorney general's opinions in open-meetings and open-records matters have the force of law unless overruled in court. The attorney general ruled that:

The Nelson County Fiscal Court failed to adequately describe the reason for a closed session June 22. The court had cited both pending and proposed litigation as reasons for closing the meeting. In an appeal filed by Kevin Brumley, the attorney’s office said the state Open Meetings Act requires more than simply a citation of the act and a general statement such as “litigation,” but said the standard was different for “pending litigation” than “proposed litigation” because timing is often crucial in deciding to file a lawsuit, while a pending lawsuit already was on open file at the courthouse. The former reason was insufficient, while the latter was sufficient.

The Rockcastle County Fiscal Court violated the Open Meetings Act by failing to give all the required notices before every special meeting held between Jan. 1, 2008 and May 28, 2010. The ruling came in an appeal filed by County Clerk Norma Houk, who complained that the court had held some 43 meetings in that period without properly notifying those the act requires to be notified. The law requires that 24 hours before the meeting, notice go to members of the court and news media, and that a notice be posted in a conspicuous place in the building where the meeting will be held. The fiscal court also failed to reply to Ms. Houk’s complaint as required by law, the ruling said.

The Milton City Commission in Trimble County violated the Open Meetings Act by failing to give proper notice of two meetings of a quorum of its members at which public business was discussed, failing to record minutes of these meetings, and failing to respond to an open meetings complaint alleging these violations. That ruling came in an appeal filed by Shannon Hoskins over meetings involving the hiring of Water and Sewer Department Supervisor Mark Bates.

In an open-records case, the City of Danville failed to respond to a request for records within the three days required by the Open Records Act, but since the precise records asked for by Clay Moore – “signed copies” of several municipal parking-garage lease agreements – could not be found, the unsigned copies it eventually furnished were sufficient.

Whitley County police ordered to release information

The Whitley County Police Department violated the state Open Records Act by refusing the local newspaper's request for a copy of radio traffic and an incident report on a child injured by exploding fireworks, the attorney general's office has ruled.

The police cited both state law on the confidentiality of juvenile court records and the federal Health Insurance Portability and Accountability Act, which protects certain "health information" in refusing the request by Corbin News Journal reporter Dean Manning. But the attorney general's ruling said neither trumped the Open Records Act.

"We find its arguments largely unpersuasive," the opinion said. "The radio traffic and report ... are not juvenile court records." In addition, HIPAA contains a provision that specifically authorizes the release of information "required by law."

The opinion dismissed another justification cited by the police – that the mother of the child injured wanted "no media attention."

"We are reluctant to defer to her wishes in light of the absence of any facts supporting her claim," the opinion said.

UK researchers had no right to demand return of document distributed to focus group, AG rules

University of Kentucky researchers improperly refused to allow an audience member to keep material that had been handed out at a focus group session in Paducah, the state attorney general's office ruled last week.

The university was correct in refusing an open records request for the names of participants in a focus group conducted by the Kentucky Research Consortium for Energy and the Environment but did not have the right to insist on return of "visualizations" given out at a subsequent session, the decision said.

The consortium has been studying possible uses for the Paducah Gaseous Diffusion Plant, which enriches uranium. One member of the audience, Mark Donham, had refused to return a document he was given, a computerized "visualization" of the site as a nuclear power plant, one of the uses being considered. After an argument, university representatives threatened to call the police. Donham returned the material then filed an open records request.

The attorney general ruled that the researchers could legally refuse to identify the members of the focus group because they had been promised confidentiality, but there was no such promise regarding the handout materials. "Having afforded Mr. Donham the opportunity to inspect the visualizations, without enforceable restrictions on disclosure, he must be provided with copies of these records," the decision said.

State police repeatedly violated Open Records Act, attorney general's office says

The Kentucky State Police "repeatedly violated" the state's Open Records Act in a disputed homicide case, the state attorney general's office has ruled. One of the state's top First Amendment lawyers called KSP's actions "ridiculous" and an example of the "habitual condition" of the state police in flouting the intent of the records law.

The ruling involved an open-records request filed in April 2009 by Russell and Sharon Loaring of Owenton. They are the court-appointed executors of the estate of Charlotte Burke of Owenton, who was killed in a January 2009 shooting that left Daniel Cobb wounded. Police concluded that Burke shot Cobb, then killed herself.

Cobb filed a damage suit against Burke's estate, engaging Commonwealth Attorney Jim Crawford of Carrollton, who maintains a private practice, as his lawyer. State police gave Baxter the case file, in what he called a "courtesy," and gave part of the file to another interested party, Glenna Smith, by the KSP. But when the Loarings asked the KSP for records involving the case, the agency refused their request, saying the case had not been closed. Repeated requests over the next year were also refused. The Loarings complained to the attorney general's office, which issued the ruling last week. A KSP colonel referred questions to the agency's legal office, which has not returned calls.

The agency has 30 days to appeal the attorney general's ruling to Franklin Circuit Court.

Louisville lawyer Jon Fleischaker, who largely wrote the state Open Records Act, said the KSP's conduct in this case was the latest example of the agency's attitude toward information requests. "This 'the investigation is not closed' stuff -- that's not what the law says," Fleischaker told the KOG Blog. "They've morphed the law." He said the law allows requests to be refused only if an informant would be identified or if disclosure would materially damage an ongoing investigation. He noted, as did the attorney general's opinion, that the law also clearly states that these exemptions "shall not be used ... to delay or impede the exercise of rights" to information by the public.

The attorney general's decision also faulted the state police for refusing to release pictures of the crime because they were "graphic" and constituted an invasion of privacy. The police offered "no proof, beyond a bare allegation, that the privacy interest of the surviving family outwieghed the public's interest in disclosure," the decision said.

"Their position is, 'We're not going to give you anything we don't want to'," Fleishacker said. "It's the habitual positon of the state police."

The attorney general's office said it could not immediately say how many times the state police have been cited for open-records violations, but offered to collect the information and respond later.

For a full text of the opinion, see Links of Interest at the bottom of the blog.

New blog for Rockcastle County starts with open-government concerns

Issues of open government are the topic of the first post in a new blog for Rockcastle County, where a local water association has barred its customers from attending its board meetings "despite numerous protests by many of its water-user members," blogger Elmer Whitler writes on Rockcastle County News, which he says is "devoted to news and opinion on events and conditions important for improving life for all those who live in Rockcastle County." (Wikipedia map)

The KOG Blog reported on the Eastern Rockcastle Water Association about a year ago, when Attorney General Jack Conway ruled that the association was not covered by the state Open Records Act because it gets less than 25 percent of its annual revenue from the state, and is in no way subject to the Open Meetings Act. "Water users seeking admission to the monthly meetings of the ERWA board have been threatend with arrest and confronted by deputies and the Rockcastle County sheriff," Whitler writes. He notes that Kentucky has 22 non-profit water associations, which "are spending millions of taxpayer dollars they obtain through state and federal grants for water system development. There is little focused regulatory oversight in Frankfort of how these funds are spent."

Whitler is director of research for the Office of Rural Health Policy in the medical school at the University of Kentucky. His work is separate from his blog, but informs it. He writes, "The abuse of openness and the public's right to know is most prevalent in counties that are characterized as high-poverty, low-education, and low-job-opportunity counties. There is a long tradition in these counties of the use of negative forms of political manipulation and control over meager economic resources. It seems that high levels of poverty, illiteracy, and low civic participation are necessary for this form of destructive politics to thrive. This whole process is aided and abetted by keeping the local citizens ignorant of what is being done." Elmer Whitler is trying to change that in his community. Does your community face similar problems? What are you doing about them?