UK trustees vote to keep presidential search confidential until the final phase

The names of finalists to be the new president of the University of Kentucky will be released only if all of them agree to the disclosure, and if not, only the university trustees' preferred candidate will be introduced to the campus community before being hired, the trustees agreed yesterday.

Trustee Jim Stuckert, chairman of the presidential search committee, "said the confidentiality provision was critical to applicants," the Lexington Herald-Leader reports, quoting him as saying, "We've got people waiting in the wings predicated on these motions." Britt Brockman, chairman of the Board of Trustees, told Becca Clemons of the Kentucky Kernel Monday that the search committee "has been extremely impressed by the breadth and depth of the field." The committee is scheduled to meet today to screen candidates; interviews are scheduled for March 22-23. (Read more)

At yesterday's meeting Brockman called the decision “a nice compromise . . . between public interest and transparency.” He said it would ensure input from the campus community and UK alumni, Nancy Rodriguez of The Courier-Journal writes, "while also protecting the privacy of candidates who might otherwise be scared away from applying out of concern they might lose their jobs at other institutions." (Read more)

There were misgivings. The Herald-Leader's Cheryl Truman reports, "Staff trustee Sheila Brothers said that she would vote for the confidentiality motion, but wondered whether she was getting reliable information about the importance of a closed search, saying she thought there is 'a vested interest in keeping the process closed.'" (Read more)

Open-records request trumped by federal law

An attempt by The Northerner, the student newspaper of Northern Kentucky University, to monitor student grant applications ran afoul of a federal law relating to student privacy, according to an opinion of the Kentucky attorney general's office issued Feb. 15.

Jesse Call, a reporter for the newspaper, sought to examine grant applications submitted to the Student Government Association. But the university denied the request, citing student privacy requirements under federal law. Even though the grant applications were submitted to the student government, the university argued the association administers the grant program under the "direction and guidance" of the NKU Division of Student Affairs and that the records contain personal information of the students.

After the attorney general's office inspected the grant application, it agreed with the university's position, saying there is a substantial public interest in ensuring that student government fairly awards the Scott Wurster Book/Special Needs Grants, but "We concur with NKU in its stated position that the broadly worded definition of 'education records'" in the Federal Educational Rights and Privacy Act "extends to applications submitted by individual students for the grants."

Open-records opinions focus on request costs

Fees to prepare answers to open-records requests were at the heart of two decisions issued Feb. 14 by the attorney general’s office. In one, the office held the Russell County School District improperly denied a request from the editors of the online Russell Springs News to access email logs for the accounts of two employees and set an excessive fee to have the work done. In the other, the office upheld a $34.66 charge for preparation of a list of contractors sought from the Russellville Independent School District.

Russell Springs News editors Louis and Tonya Stargel sought access to the school district’s email server logs for seven and a half months beginning May 1, 2010. (The News apparently began publication on Sept. 8, according to its archives.) The Stargels specifically asked to inspect emails from Sherri West, a former district employee; Kathy Hammond, principal of Russell Springs Elementary School, and Kenny Pickett, superintendent of the district.

The school district denied the request on Jan. 10, arguing the request was too broad and would impose an unreasonable burden. The district estimated it would require six work days, at an estimated total cost of $1,860, to compile the information. According to the attorney general’s decision, the school district offered to provide the information if the newspaper wanted to pay for the work.

The decision said the district could only charge routine copy fees if the newspaper requests the records, because the school district’s contention that it could charge more based on the commercial intent of the Russell Springs News was not valid.

In the Russellville school request, Marty Owens sought a list of contractors and subcontractors who worked on two school construction projects. The district, according to the attorney general’s decision, had no such list and chose to compile it rather than deny Owens’ request or make records available so that he could compile it himself. The district was justified in levying the $34.66 fee to cover the cost of preparing the lists Owens sought, the decision said.

Whitley judge-executive apologizes for keeping information about indicted sheriff from paper

The Whitley County judge-executive told The Times-Tribune of Corbin that he reprimanded employees in his office after finding that their response to an open-records request from the newspaper did not comply with the law.

The Times-Tribune sent Judge-Executive Pat White an open-records request on Jan. 26 "after the newspaper received what appeared to be a copy of a portion of a letter from the Kentucky Association of Counties to former Whitley County Sheriff Lawrence Hodge," Managing Editor Becky Killian writes. In the letter, the association asked to “review any correspondence, copies of claim forms or other documentation relating to a claim filed with KACO for legal representation” for Hodge, who lost his re-election bid and was indicted on 21 charges after an investigation (logo above) by the newspaper. The grand jury indictment accused Hodge of embezzling hundreds of thousands of dollars in public funds.

"The letter asked White to contact the newspaper to arrange a time for the newspaper to review the documents," Killian reports. "White did not call and instead responded in writing with a letter that appears to bear his signature. He provided a copy of the Nov. 17 letter that again appeared to be only a partial copy of the document." Later, though, White allowed the newspaper to view and copy the documents.

Caroline Pieroni, a Kentucky Press Association attorney, told the paper that White's office had committed an “egregious violation of the Open Records Act” because public agencies are required to indicate when they have omitted or obscured information from a document and cite the Open Records Act exemption that they believe allows them to do so.

"White, who was informed of the Times-Tribune’s complaint on Wednesday, called later that day and said he had verbally reprimanded his staff for the violation," Killian reports. "He also apologized and said he would personally handle open records requests in the future." (Read more)

$1.5 million in grants fund project to hire one anti-corruption reporter in every state

The Center for Public Integrity, a well-established, well-respected source of not-for-profit accountability journalism, is recruiting reporters for "an ambitious risk analysis of corruption in all 50 state governments," covering everything from pension fund management to disclosure laws to state budget processes.

"The journalists will assess the existence and effectiveness of anti-corruption and government transparency measures at the state level, including political financing, civil service management and state budget processes," the center says. "The goal is to hire 50 reporters (one in each state) on a part-time, freelance basis to help us complete the project with on-the-ground reporting and data entry. We’re looking for experienced reporters who know their state and know how to dig." Apply here.

The project is funded with $1.5 million in grants from the Omidyar Network and the Rita Allen Foundation to the center, Public Radio International and Global Integrity, which analyzes government accountability and corruption trends.

Bill would create panel to review deaths and near-deaths of children in state care; change promised for accountability, transparency

The House Health and Welfare Committee approved a bill Thursday to "create a panel to review deaths and near-deaths of children who are neglected or abused while under the state’s supervision," the Lexington Herald-Leader reports.

The vote was unanimous, but some committee members "said they would not support the bill on the House floor unless it was amended to provide more transparency," Beth Musgrave writes for the newspaper. The bill's sponsor, committee chairman Tom Burch, D-Louisville, left, "told the committee that he was going to offer a floor amendment that would ensure the records of the panel would be available to the public."

Burch's House Bill 441 "would exempt the panel from disclosing its conversations and documents regarding neglected and abused children," and that would make the state child-care system more secret than it is today, argued Jason Nemes, a lawyer for the Kentucky Press Association. “It removes the transparency that we have today,” he said.

For several months, the cabinet has fought in court to keep the Herald-Leader and The Courier-Journal from reviewing records of children who have died when the state was supposed to be looking after them. After a judge ruled in favor of the newspapers, the cabinet issued an emergency regulation that "limits the release of information about the actions of child protection workers in cases involving children who are killed or severely injured because of abuse and neglect," Musgrave writes.

The papers are in court again, challenging the cabinet's refusal to release certain records. This week, the cabinet asked that the lawsuit be moved to federal court, arguing that federal law prohbits the release of such information. (Read more)

Free open-government seminar in Bowling Green

The Barren River Area Development District will sponsor a free open-meetings and open-records seminar Wednesday, March 30, from 1 to 3:30 p.m. CDT in the district office at 177 Graham Avenue in Bowling Green. The seminar will be conducted by Assistant Attorney General Amye Bensenhaver, who writes a majority of the attorney general's decisions on open meetings and open records. She will be joined by Jeremy Rogers of Dinsmore & Shohl, a leading media law firm.

The seminar is designed to educate public officials about the two laws but is open to anyone who notifies the area development district in advance. Contact Ashley Lawrence at 270-781-2381 (fax 842-0768) or alawrence@bradd.org.

The seminar was prompted by a series of open-government controversies involving the fiscal court of Butler County, which is part of the district. To head off further legal action against them, the judge-executive, magistrates and county attorney agreed to request training from the attorney general's office in open-government laws. Bensenhaver said the office felt that it would be useful to expand the seminar to all public officials in the district. Many local officials are newly elected and unfamiliar with the laws.

City council can't act on an issue because too many members have a conflict of interest

The Lancaster City Council found itself with a dilemma when three of the six members and the mayor had to recuse themselves from discussing an issue involving a school because they work for the county schools.

Garrard County Superintendent Donald Aldridge appeared before the council to discuss a leaky water pipe that "had cost the school district thousands of dollars," reports Ben Kleppinger for the Danville Advocate-Messenger. City Attorney Leonard Smith pointed out that three members of the council are teachers in the school system and the mayor is the school district’s community education director and they should all recuse themselves from the issue. "My recommendation is to not even ask questions, because you could have the appearance of conflict by asking the wrong question," Smith told the council.

Superintendent Aldridge was asking the council for a budget adjustment to cover the expense of a pipe that had leaked 700,000 gallons of water into the ground before being fixed. Smith told Aldridge and the council that Aldridge did not have any basis to make a change. "There’s nothing we can do about it and the school board’s stuck in the middle," said Smith.

With the water-bill issue behind him, writes Kleppinger, Aldridge asked Smith how he could ever bring an issue to the council if the council is rendered powerless by his presence. "Maybe you could fire two or three teachers and that will fix your problem," Smith joked, before explaining that other issues might not be as controversial and the council could handle them without having to recuse themselves. (Read more)

Two leading open-government advocates among 2011 Kentucky Journalism Hall of Fame inductees

Two leading advocates of open government are among six people in the 2011 class of the Kentucky Journalism Hall of Fame, announced this week: Tom Loftus, longtime chief of the Frankfort bureau of The Courier-Journal, and Robert Carter, retired publisher of the Kentucky New Era in Hopkinsville.

Bob Carter, left, was president of the Kentucky Press Association in 1976 when the legislature passed the Open Records Act, and was on KPA's leadership ladder in 1974 when it passed the Open Meetings Act. For his work on that and other projects, he was named KPA's outstanding member in 1975. "Carter began his career on the advertising side of the newspaper business, and he thrived there, but countless journalists have benefited from his role in getting the Kentucky General Assembly to adopt the open-meetings law and the open-records law," New Era Publisher Taylor Hayes wrote in his nomination letter.

One of the leading users of the act, to the benefit of his newspaper and the public, has been Tom Loftus, right. Chief of the Louisville newspaper's state-capital bureau since 1987, "He’s an ardent watchdog who has made use of those laws than perhaps any other journalist in the state, as signified by the James Madison Award from the [UK journalism] school’s Scripps Howard First Amendment Center in 2008," said the nomination by Al Cross, his former C-J colleague, now at UK's Institute for Rural Journalism and Community Issues, and Bill Straub, his former colleague at The Kentucky Post, now Washington correspondent for the The Gleaner of Henderson and the Evansville Courier and Press.

Others elected to the Hall of Fame, overseen by the UK Journalism Alumni Association, are Bill Bartleman, recently retired reporter for The Paducah Sun; Jackie Hays Bickel, retired anchor for Louisville’s WAVE-TV; Ed Shadburne, former general manager of WLKY-TV and of WHAS-TV-AM-FM in Louisville; and the late Albert Dix, publisher of The State Journal of Frankfort. The six will be inducted at a luncheon April 5 in Lexington.

Electronic metadata are open, federal judge rules

"For the first time, a federal court has ruled that metadata -- information related to the history, tracking or management of an electronic document -- must be released if requested under the Freedom of Information Act," reports Christine Beckett of the Reporters Committee for Freedom of the Press.

U.S. District Judge Shira Scheindlin ruled Monday in the case of National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency. The labor group requested records in electronic form from ICE. "After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata," Beckett reports.

Scheindlin said that failed to meet the requirements of FOIA because the data were unusable and undefined. "There was no way to discern the beginning and end of individual records," Beckett explains. The judge said ICE's arguments were "lame."

Metadata are essential to using electronic records because they show "the government is not hiding anything," said Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit. "It goes to the heart of FOIA."

The judge said metadata should be specifically requested, but ruled that because the labor group asked for electronic records in "native format," the original electronic format that contains metadata, that was sufficient to require ICE to provide the metadata.

She "conceded that not all metadata may fall under FOIA's 'readily producible' standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency," Beckett reports. "The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records." The U.S. attorney handling the case declined to say if an appeal will follow. (Read more)

1 of 3 rulings regarding Butler County says public has no right to take part in official meetings

State law does not give members of the public the right to participate in open meetings of public agencies, Attorney General Jack Conway ruled in the most substantive of three open-meetings decisions involving the Butler County Fiscal Court and Robert D. Cron, who was a candidate for county judge-executive in 2010 and has persistently dogged open-government issues in the county northwest of Bowling Green.

Cron accused the fiscal court of violating the state Open Meetings Act by instituting a new procedure requiring visitors to identify themselves and have their issues placed on the meeting agenda before having an opportunity to address the court. The attorney general disagreed, saying the law does not provide a statutory right for the public to participate in public meetings or address members of a public agency.

Cron fared better in the other two cases. In one, he alleged that the fiscal court held a closed meeting to discuss hiring a part-time employee on Jan. 6, 2011, and failed to respond to his complaint within three days. Attorney Richard J. Deye replied that much like a recent case in Knott County, the meeting was improper and the fiscal court promises not to do it again.
In the third ruling, the AG's office could not decide conclusively if the fiscal court violated the law when it changed the time of a meeting from 6 p.m. to 5:30 p.m., "but the weight of the evidence suggests that it did." Cron complained that the court did not properly announce the time change. The court and Cron agree about "the sequence of events which resulted in the other complaint," but disagreed about the legal implications.

AG: Knott Co. Fiscal Court meeting conducted over the phone violated Open Meetings Act

Attorney General Jack Conway has ruled that the Knott County Fiscal Court violated the state Open Meetings Act by conducting a meeting of the court over the telephone and by failing to respond to a written complaint alleging that they violated the open meetings law.

Emma Lois Pigman complained that the meeting held on Dec. 22, 2010, excluded the public. She also complained that the fiscal court had not properly announced the meeting, in violation of the law.

The fiscal court conceded that the telephone meeting was improper, and promised to try to not do it again. County Judge-Executive Randy Thompson said in correspondence to the attorney general's office that he didn't know he had to respond to open-meetings complaints within three days. The attorney general's ruling is unequivocal: Knott County Fiscal Court "must immediately discontinue this practice."

The fiscal court disagreed with Pigman's allegation that it had not properly announced the meeting, but provided no evidence. As the AG;s office pointed out, "We can conceive of few allegations that can more easily be refuted than improper notice.  The fiscal court need only provide this office with a copy of the written notice." The ruling wraps up the Knott County situation: "Judge Thompson’s lack of familiarity with his duties under the Open Meetings Act did not excuse his failure to respond to Ms. Pigman’s complaints.  This is particularly true in light of the fact that he has held the office of county judge since October 2005."

New secretary of state vows transparency

In a speech after being sworn in yesterday, new Secretary of State Elaine Walker pledged to maintain openness in the office that oversees Kentucky elections and certain business records.

Walker, mayor of Bowling Green for the past six years, said her broad goal will be to ensure that the integrity of the office continues, and "It's critical to be transparent."

Kentucky elections are largely run by county court clerks, and Walker said her top priority is working with the 120 clerks in an effort to see that those in smaller counties have the same resources as those in larger counties.

Gov. Steve Beshear, a fellow Democrat who appointed Walker, said in his speech before she took the oath that the secretary of state should see that elections are run fairly, smoothly and honestly. "Kentucky's history is rife with examples to the contrary from time to time," he said, so the secretary of state should have a reputation for honesty and integrity.

Walker was named to fill the 11 months remaining in the term of Republican Trey Grayson, who resigned to become director of the Institute of Politics at Harvard University. She said Grayson has given the office a strong foundation in civic engagement, and "I plan to use my media background to take us to the next level." Walker and her husband are filmmakers who moved from Los Angeles to Bowling Green in 1993; her parents were Polish immigrants who lived in "a steel town in West Virginia" and taught her that "Leadership is not just an honor, but a responsibility," she told the crowd in the nearly full Supreme Court chamber after being sworn in by Chief Justice John Minton Jr.

Walker, 59, is running for a full four-year term and faces a primary challenge from Allison Lundergan Grimes, 33, daughter of longtime Beshear foe and former state Democratic chairman Jerry Lundergan, both of Lexington. Beshear made his choice clear yesterday, telling the crowd that he looks forward to working with Walker for the next year, and "I look forward to working with her for several years in the future." Beshear is running for a second term.

(Bowling Green Daily News photo by Joe Imel; for the paper's story by Andrew Robinson, click here.)

Rand Paul one of four Senators voting against ending secret 'holds'

U.S. Sen. Rand Paul of Kentucky was one of four senators to vote against ending the secret "holds" that senators use to anonymously block legislation. Holds will still be allowed, but they must be listed in the Congressional Record.

Voting with Paul on the 92-4 tally were fellow Tea Party favorite Mike Lee of Utah and the leader of the new Tea Party caucus, Jim DeMint of South Carolina, as well as John Ensign of Nevada. All are Republicans.

Ensign told the Las Vegas Review-Journal he opposed the rules change after Senate leaders rejected a provision that would have given senators 72 hours to review bills before deciding whether to allow them to proceed.

Ensign said senators are given 48 hours after a bill is brought to the Senate floor to impose a hold. “All I want to do is make sure we have time to read these bills,” Ensign said.

Kentucky's biggest newspapers file lawsuit to obtain records concerning child's death

The Louisville Courier-Journal and the Lexington Herald-Leader continue their fight to obtain Kentucky Department of Health and Family Services documents on the death of a 20-month-old boy who died after drinking drain cleaner at what authorities have described as an a meth lab in Wayne County. The newspapers contend the requested documents are subject to release under the state Open Records Act.

Franklin Circuit Judge Phillip Shepherd last month agreed with the newspapers and ordered the release of the records, which would shed light on the death of Kayden Branham, "who died after drinking drain cleaner at a home where it was allegedly being used to make methamphetamine," The Associated Press reported. At the time of his death, Branham and his 14-year-old mother were under state supervision.

Cabinet officials issued a statement justifying their decision to withhold the records was based on federal and state statutes that require it to keep some information confidential in cases of child deaths and serious injuries, according to the Courier-Journal's story. (Read it here)

Jon Fleischaker, who represents The Courier-Journal, said the cabinet is defying Judge Shepherd's order that the public has a right to such records in cases where children’s lives are at stake, according to the newspaper.

After Shepherd's ruling, the Department of Health and Family Services filed emergency regulations restricting release of information about children who have been killed or badly injured while being abused or neglected. The lawsuit, filed Thursday in Franklin Circuit Court, also asks the judge to overturn the emergency regulations on grounds that they do not meet the definition of a legitimate emergency and are being used instead to prevent release of the records. (Read more)

AG lets superintendent keep calendar private; tells PVA to release employees' vehicle records

Attorney General Jack Conway has ruled that the appointment calendar of the Fayette County school superintendent is not an open record. The school system successfully relied on an open-records decision that allowed Brereton Jones to keep his appointment ledger secret when he was governor in 1991-95.

The case began when Brenda D. Allen requested the calendar of Supt. Stu Silberman from Jan. 1, 2009, through Nov. 22, 2010. Allen said the calendar must be archived for two years and the "issues of confidentiality" that a governor might have do not apply to a school superintendent. Conway disagreed, citing the Jones case, which said calendars are "preliminary drafts" and "are part of the tools which a public employee or officer uses in hammering out official action within the function of his office. They are expressly exempted by the Open Records Law and may be destroyed or kept at will and are not subject to public inspection." Conway also found that a superintendent has issues of confidentiality described in the federal Family Educational Rights and Privacy Act when meetings concerning individual students occur.

Conway ruled for open government in another case, saying the Jefferson County property valuation administrator improperly relied on the federal Drivers Privacy Protection Act in denying Kevin Wilkins’ Dec. 7 request for “a list of locations of all real and personal property” owned by four named employees. Conway's opinion, drafted by Assistant Attorney General Amye Bensenhaver, cited a Connecticut court decision that tax assessors are not covered by the privacy act, and noted that PVAs don't have records with the information protected by the federal law, which prohibits release of personal information that identifies someone, such as a driver license, Social Security or telephone number. (Read more)

Conway's office lists all open records opinions since 1993, in chronological order.

Open-government lawyer Fleischaker named press association's most valuable member

He really isn't a member as such, but the Kentucky Press Association wouldn't be the same without him, so the group gave Louisville lawyer Jon Fleischaker its Most Valuable Member Award yesterday.

Fleischaker has been the chief attorney for the association, The Courier-Journal and several other newspapers for decades, and in the early 1980s he and KPA started the only freedom-of-information hotline available at no charge to members of a state press association. He largely wrote the state's open-meetings and open-records laws in the 1970s and headed a rewrite in the early 1990s. The open-government laws remain models for other states.

The lawyer's "body of work is a huge testament to the value of open governance," said outgoing KPA President Chip Hutcheson of Princeton. Hutcheson, who is active in government-affairs issues with the National Newspaper Association, said Fleischaker "created a culture of openness in Kentucky government that is rare among states."

Fleischaker told the group, "It's been a labor of love for me and Kim" Greene, his wife and law partner. He closed with words of caution, saying the American system of politics and government "means you never stop fighting" for freedom of information.

President stresses need for legal ads

In other business at KPA's annual luncheon, Hutcheson was succeeded as president by Jamie Sizemore, right, publisher of The Kentucky Standard in Bardstown. She said the association needs to be more proactive in defending laws requiring government agencies to run legal notices in newspapers. She said polling shows that 89 percent of Kentuckians are more likely to see such ads in their local paper, while only 9 percent said they would more likely see them on web sites, where many officials want to put them instead to reduce costs. Sizemore said legal ads can account for "10, 20 even 30 percent" of a newspaper's revenue, but are also part of its government-watchdog function. KPA has a service that puts legal ads online for free. Sizemore said papers should promote the print and online services "as a bundle" that increases government accountability and transparency. For the Standard's report on its publisher's ascension, click here.

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."