Butler County Fiscal Court has violated the Open Meetings Law again; this time, the court failed to distribute an agenda to fiscal court members for its September 14 special meeting 24 hours before the meeting.
The Open Meetings Law requires public agencies to deliver a special meeting notice consisting of the date, time, and place of the special meeting and the agenda for the special meeting at least 24 hours before a special meeting.
In this case, fiscal court members received a copy of the agenda minutes before the meeting began. The fiscal court argued that this was a mere technical violation because there was reference to the special meeting on the September 12th regular meeting agenda. The fiscal court, through County Attorney Richard J. Deye, reasoned that this reference gave adequate notice of when the special meeting would be and what its purpose was.
In its response issued Nov. 1, the Office of the Attorney General restated two important principles:
"The [Open Meetings] Act does not recognize a class of violations of lesser gravity than the remaining violations and therefore capable of being dismissed as merely “technical.”
“The failure to comply with the strict letter of the law in conducting meetings of a public agency violated the public good.”
In a letter to the attorney general, County Attorney Deye argued, “[t]he only provision of the Open Meetings Law that was violated is that the magistrates did not receive a piece of paper twenty-four hours in advance . . . . One must struggle to discern how the actions of the Butler County Fiscal Court compromised the citizens of Butler County.”
The attorney general's office answered that claim in the opinion, "Neither this office nor the Butler County Fiscal Court need 'struggle to discern' how the interests of the citizens of Butler County were compromised by the Fiscal Court’s failure to comply with the express requirements of the Open Meetings Law. The law recognizes harm any time an agency acts in derogation of these requirements regardless of how inconsequential its actions may appear to the agency."
The opinion also noted that the law does not empower the attorney general to impose fines or negate actions because of Open Meetings Law violations, but the law does allow a circuit court judge to impose penalties.
Saturday, November 12, 2011
Broad request for cell phone information is denied
The Lexington-Fayette Urban County Government Division of Police properly denied a request for copies of cell phone records, according to an opinion of the attorney general's office.
The documents sought pertained "to the ability of law enforcement officers to obtain records from cell phone companies that reveal the past or present travels of cell phone users” over a two and a half year period.
The division reasoned that this request was overly burdensome as it could not accurately estimate the number of records encompassed by the request and that it would cause division personnel to manually search more than a thousand case files and more than a million e-mails.
The attorney general's opinion on Nov. 4 agreed with the division and stated that the scope of the request “represents an impediment to access and that the volume of record implicated by the request magnifies the possibility of harm to open investigation/enforcement action through inadvertent disclosure of protected matter.”
The documents sought pertained "to the ability of law enforcement officers to obtain records from cell phone companies that reveal the past or present travels of cell phone users” over a two and a half year period.
The division reasoned that this request was overly burdensome as it could not accurately estimate the number of records encompassed by the request and that it would cause division personnel to manually search more than a thousand case files and more than a million e-mails.
The attorney general's opinion on Nov. 4 agreed with the division and stated that the scope of the request “represents an impediment to access and that the volume of record implicated by the request magnifies the possibility of harm to open investigation/enforcement action through inadvertent disclosure of protected matter.”
Tax payments plans deemed open records
The Attorney General's Office ruled on Oct. 31 against the Marshall County Attorney’s failure to disclose records relating to delinquent property tax payment agreement plans.
Marshall County Attorney Jeffrey G. Edwards denied a citizen’s request to view the records based on the fact that these tax payment plans contain confidential information about the taxpayer and the agreements were not fully discharged and therefore preliminary.
The county attorney said he relied upon exemptions in the Open Records that protect preliminary drafts and public records made confidential by the General Assembly, citing the privacy of tax returns.
The attorney general's office disagreed with Mr. Edward’s application of the law to tax payment agreement plans. The opinion, which has the force of law unless appealed to circuit court, explained that “these prohibitions do not extend to any matter properly entered upon any assessment record, or in any way made a matter of public record .... and therefore, the payment plans do not afford protection under these statues nor can they be considered preliminary drafts.
Given that delinquent property taxes become a public record when the county clerk records a lien for the amount owed and publishes a notice of all delinquencies in the newspaper, the attorney general's opinion explained that delinquent taxpayers therefore do not have a reasonable expectation of confidentiality in the information contained in the payment agreement.
Additionally, the county attorney’s authority to make these payment agreements is a matter of public interest; the public has a right to monitor the operation of the government, which clearly encompasses the county attorney’s collection duties.
Marshall County Attorney Jeffrey G. Edwards denied a citizen’s request to view the records based on the fact that these tax payment plans contain confidential information about the taxpayer and the agreements were not fully discharged and therefore preliminary.
The county attorney said he relied upon exemptions in the Open Records that protect preliminary drafts and public records made confidential by the General Assembly, citing the privacy of tax returns.
The attorney general's office disagreed with Mr. Edward’s application of the law to tax payment agreement plans. The opinion, which has the force of law unless appealed to circuit court, explained that “these prohibitions do not extend to any matter properly entered upon any assessment record, or in any way made a matter of public record .... and therefore, the payment plans do not afford protection under these statues nor can they be considered preliminary drafts.
Given that delinquent property taxes become a public record when the county clerk records a lien for the amount owed and publishes a notice of all delinquencies in the newspaper, the attorney general's opinion explained that delinquent taxpayers therefore do not have a reasonable expectation of confidentiality in the information contained in the payment agreement.
Additionally, the county attorney’s authority to make these payment agreements is a matter of public interest; the public has a right to monitor the operation of the government, which clearly encompasses the county attorney’s collection duties.
Tuesday, November 8, 2011
State cabinet loses another open records lawsuit
The state Cabinet for Health and Family Services came under a withering attack from a state judge, who said the cabinet turned a blind eye to repeated reports a nine-year-old girl was being abused at home.
Franklin Circuit Court Judge Phillip Shepherd ruled Nov. 7 the cabinet must release its records involving Amythz Dye, a nine-year-old who, according to court records, was beaten to death by her adoptive brother. Garrett Dye, 17, pleaded guilty on Oct. 21 in Todd Circuit Court to murdering her on Feb. 4 by beating her in the head with a jack handle. When she was killed, Amythz was shoveling gravel as punishment for stealing pudding and juice from a friend’s lunch box at school, according to Shepherd’s order.
Garrett Dye, who was prosecuted as an adult, will be sentenced Nov. 23.
"This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny," Judge Shepherd wrote. In his decision, he notes the cabinet received eight reports that the girl had suffered injuries that were suspicious.
"In this case, an innocent nine-year-old girl was brutally beaten to death after enduring months of physical and emotional abuse in a home approved by the Commonwealth of Kentucky for her adoption, notwithstanding a substantiated incident of child abuse in that home prior to her placement there and notwithstanding repeated reports of abuse and neglect later made by school officials to the Cabinet for Health and Family Services prior to her murder."
It is the third time, the second in four days, that Judge Shepherd has ruled for public inspection of documents involving the death of children under the supervision of the cabinet. In all three cases, the cabinet had refused open records requests for the records, arguing federal law required it to maintain confidential records.
But Judge Shepherd ruled, citing congressional records, that the federal legislature never intended to allow state governments to protect their actions from public scrutiny in such cases.
“The Open Records Act is the only method available by which the public and the legislature can obtain information regarding the systematic breakdown of our child protective services that contributed so directly to this child’s death,” Shepherd wrote.
The lawsuit was filed by the Todd County Standard. The weekly newspaper sought records which the cabinet initially indicated did not exist. For the paper's story, click here. The Courier-Journal's story is here.
Franklin Circuit Court Judge Phillip Shepherd ruled Nov. 7 the cabinet must release its records involving Amythz Dye, a nine-year-old who, according to court records, was beaten to death by her adoptive brother. Garrett Dye, 17, pleaded guilty on Oct. 21 in Todd Circuit Court to murdering her on Feb. 4 by beating her in the head with a jack handle. When she was killed, Amythz was shoveling gravel as punishment for stealing pudding and juice from a friend’s lunch box at school, according to Shepherd’s order.
Garrett Dye, who was prosecuted as an adult, will be sentenced Nov. 23.
"This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny," Judge Shepherd wrote. In his decision, he notes the cabinet received eight reports that the girl had suffered injuries that were suspicious.
"In this case, an innocent nine-year-old girl was brutally beaten to death after enduring months of physical and emotional abuse in a home approved by the Commonwealth of Kentucky for her adoption, notwithstanding a substantiated incident of child abuse in that home prior to her placement there and notwithstanding repeated reports of abuse and neglect later made by school officials to the Cabinet for Health and Family Services prior to her murder."
It is the third time, the second in four days, that Judge Shepherd has ruled for public inspection of documents involving the death of children under the supervision of the cabinet. In all three cases, the cabinet had refused open records requests for the records, arguing federal law required it to maintain confidential records.
But Judge Shepherd ruled, citing congressional records, that the federal legislature never intended to allow state governments to protect their actions from public scrutiny in such cases.
“The Open Records Act is the only method available by which the public and the legislature can obtain information regarding the systematic breakdown of our child protective services that contributed so directly to this child’s death,” Shepherd wrote.
The lawsuit was filed by the Todd County Standard. The weekly newspaper sought records which the cabinet initially indicated did not exist. For the paper's story, click here. The Courier-Journal's story is here.
Hospital appeals attorney general's ruling
University Hospital of Louisville has filed a lawsuit in Jefferson County Circuit Court to overturn an open records opinion of Attorney General Jack Conway that the hospital is a public agency under the Kentucky Open Records Act.
The attorney general's opinion issued Oct. 5 declared University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." The university has argued University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal.
Conway's ruling could affect the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System. If the court upholds the attorney general's opinion, the state will have a say in the merger. The ruling means the documents pertaining to the merger itself would have to be made public.
Because it deals with an open-records issue, Conway's opinion has the force of law unless overturned in court, which resulted in the hospital's lawsuit.
According to the Courier-Journal, University Hospital is Louisville's safety-net hospital for the poor. It received $61 million from the state and $7 million from the city for indigent care last year.
The lawsuit argues that the hospital is a private, nonprofit corporation because it is controlled by a board of directors, not the University of Louisville.
For more information, read the Courier-Journal's story. Read the Open Government Blog entry about Attorney General Conway's opinion here.
The attorney general's opinion issued Oct. 5 declared University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." The university has argued University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal.
Conway's ruling could affect the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System. If the court upholds the attorney general's opinion, the state will have a say in the merger. The ruling means the documents pertaining to the merger itself would have to be made public.
Because it deals with an open-records issue, Conway's opinion has the force of law unless overturned in court, which resulted in the hospital's lawsuit.
According to the Courier-Journal, University Hospital is Louisville's safety-net hospital for the poor. It received $61 million from the state and $7 million from the city for indigent care last year.
The lawsuit argues that the hospital is a private, nonprofit corporation because it is controlled by a board of directors, not the University of Louisville.
For more information, read the Courier-Journal's story. Read the Open Government Blog entry about Attorney General Conway's opinion here.
Friday, November 4, 2011
Judge rules against state, cites 'culture of secrecy' in ruling opening records in child abuse deaths
A state judge has ruled for the second time in 18 months against the efforts of the state Cabinet for Health and Family Services to keep records of the deaths of children in its care hidden from public inspection.
In a stinging rebuke, Franklin Circuit Judge Phillip Shepherd, right, blasted the cabinet for refusing to follow a decision he issued in 2010 on the same issue.
"The Court must conclude that the cabinet is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law," Shepherd wrote in an opinion filed Nov. 3.
The cabinet argued, as it did in the previous lawsuit over records of a child in its care, that federal law keeps it from opening the records. Shepherd rejected that argument for a second time and said both state and federal laws include an exception to that confidentiality when a child dies or nearly dies while under state supervision.
Shepherd cited passages from records of the U.S. Senate and House establishing that it was never the intent of Congress to allow state governments to protect their actions from public scrutiny in such cases.
"The Cabinet simply cannot use the defense of privacy to shield itself from the explicit statutory mandate designed to allow public accountability for agency actions or omissions in the most egregious of cases that result in a child fatality or near fatality," Shepherd wrote.
The Lexington Herald-Leader and The Courier-Journal filed the lawsuit after the cabinet refused to give reporters access to records concerning the deaths or near-deaths of abused and neglected children under its supervision.
Jon Fleischaker, an attorney for The Courier-Journal, called Shepherd's ruling a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse.
“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker told the Louisville newspaper for its story. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”
Fleischaker called on Gov. Steve Beshear to intervene to ensure that the cabinet complies with Shepherd's ruling.
The judge gave the cabinet 10 days to negotiate with the newspapers over release of the records, recognizing the cabinet might need time to gather and copy the records it must hand over. If the parties can't agree, the judge will hold a hearing. He left open the question of requiring the state to reimburse the newspapers for legal expenses in the case.
Cabinet officials told the Herald-Leader Thursday that they have not decided whether they will take the case to the Court of Appeals. Cabinet attorneys believe the ruling could affect "incidences of child fatalities or near-fatalities that include no prior contact with the cabinet or the court system," said Jill Midkiff, a spokeswoman for the cabinet.
The Courier-Journal filed an open records request with the cabinet seeking records of its investigations into the deaths of children under its care between July 1, 2009, and Dec. 17, 2010, as well as records concerning the deaths of two children in 2008. The Herald-Leader filed for records for the period July 1, 2009, to June 30, 2010. When the cabinet denied their requests, the newspapers filed suit in January.
The lawsuit was almost identical to a previous suit in which Shepherd ruled in May 2010 against the cabinet. In that case, he ordered the cabinet to release records related to the death of Kayden Daniels, right, a 20-month-old Wayne County boy who died after ingesting poison. Both the child and his mother, then 14, were under supervision of the cabinet.
A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.
Read more in the Herald-Leader and in the The Courier-Journal. Read Judge Shepherd's ruling here. Read about Judge Shepherd's decision in 2010 here.
In a stinging rebuke, Franklin Circuit Judge Phillip Shepherd, right, blasted the cabinet for refusing to follow a decision he issued in 2010 on the same issue."The Court must conclude that the cabinet is so immersed in the culture of secrecy regarding these issues that it is institutionally incapable of recognizing and implementing the clear requirement of the law," Shepherd wrote in an opinion filed Nov. 3.
The cabinet argued, as it did in the previous lawsuit over records of a child in its care, that federal law keeps it from opening the records. Shepherd rejected that argument for a second time and said both state and federal laws include an exception to that confidentiality when a child dies or nearly dies while under state supervision.
Shepherd cited passages from records of the U.S. Senate and House establishing that it was never the intent of Congress to allow state governments to protect their actions from public scrutiny in such cases.
"The Cabinet simply cannot use the defense of privacy to shield itself from the explicit statutory mandate designed to allow public accountability for agency actions or omissions in the most egregious of cases that result in a child fatality or near fatality," Shepherd wrote.
The Lexington Herald-Leader and The Courier-Journal filed the lawsuit after the cabinet refused to give reporters access to records concerning the deaths or near-deaths of abused and neglected children under its supervision.
Jon Fleischaker, an attorney for The Courier-Journal, called Shepherd's ruling a major open-records victory for the newspapers and the public because it forces the cabinet to disclose details of how well the state does its job of protecting children from severe abuse.
“It’s about time the cabinet recognizes that it is not above the law,” Fleischaker told the Louisville newspaper for its story. “It has to comply with the mandate of state and federal law. This is not a difficult issue.”
Fleischaker called on Gov. Steve Beshear to intervene to ensure that the cabinet complies with Shepherd's ruling.
The judge gave the cabinet 10 days to negotiate with the newspapers over release of the records, recognizing the cabinet might need time to gather and copy the records it must hand over. If the parties can't agree, the judge will hold a hearing. He left open the question of requiring the state to reimburse the newspapers for legal expenses in the case.
Cabinet officials told the Herald-Leader Thursday that they have not decided whether they will take the case to the Court of Appeals. Cabinet attorneys believe the ruling could affect "incidences of child fatalities or near-fatalities that include no prior contact with the cabinet or the court system," said Jill Midkiff, a spokeswoman for the cabinet.
The Courier-Journal filed an open records request with the cabinet seeking records of its investigations into the deaths of children under its care between July 1, 2009, and Dec. 17, 2010, as well as records concerning the deaths of two children in 2008. The Herald-Leader filed for records for the period July 1, 2009, to June 30, 2010. When the cabinet denied their requests, the newspapers filed suit in January.
The lawsuit was almost identical to a previous suit in which Shepherd ruled in May 2010 against the cabinet. In that case, he ordered the cabinet to release records related to the death of Kayden Daniels, right, a 20-month-old Wayne County boy who died after ingesting poison. Both the child and his mother, then 14, were under supervision of the cabinet.A 2009 Courier-Journal investigation found that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.
Read more in the Herald-Leader and in the The Courier-Journal. Read Judge Shepherd's ruling here. Read about Judge Shepherd's decision in 2010 here.
Friday, October 28, 2011
Animal-care panel cancels after Humane Society asserts violation of open-meetings law
A new panel given the task of drafting standards for care of farm animals canceled its scheduled meeting yesterday, apparently because the Humane Society of the United States alleged Wednesday that the Kentucky Livestock Care Standards Commission was violating the Kentucky Open Meetings Act.
The cancellation was announced by the state Department of Agriculture, which later "said the meeting was canceled at the request of Agriculture Commissioner Richie Farmer," Janet Patton reports for the Lexington Herald-Leader. The statement said, "Although he believes that the commission has followed the Open Meetings Act, he wants to make certain that everyone concerned with the issues the commission is working on has ample opportunity to make their opinions heard. Therefore, he believes that the public interest is best served by postponing today's meeting for several days to give all parties concerned enough time to plan for the session."
"The Humane Society alleged that the board has been acting in secret to prevent public involvement and "asked that the commission take no further action on recommendations made by species-specific groups or other advisory panels until the panels hold open meetings to consider all matters previously discussed in private, Patton writes. "Agriculture Department spokesman Bill Clary said Wednesday that the commission thinks it has complied with the state's Open Meetings Act." (Read more)
The cancellation was announced by the state Department of Agriculture, which later "said the meeting was canceled at the request of Agriculture Commissioner Richie Farmer," Janet Patton reports for the Lexington Herald-Leader. The statement said, "Although he believes that the commission has followed the Open Meetings Act, he wants to make certain that everyone concerned with the issues the commission is working on has ample opportunity to make their opinions heard. Therefore, he believes that the public interest is best served by postponing today's meeting for several days to give all parties concerned enough time to plan for the session."
"The Humane Society alleged that the board has been acting in secret to prevent public involvement and "asked that the commission take no further action on recommendations made by species-specific groups or other advisory panels until the panels hold open meetings to consider all matters previously discussed in private, Patton writes. "Agriculture Department spokesman Bill Clary said Wednesday that the commission thinks it has complied with the state's Open Meetings Act." (Read more)
Thursday, October 13, 2011
Parks board defends meeting behind closed doors
The Winchester Sun has asked Attorney General Jack Conway to review an executive session the Winchester-Clark County Parks and Recreation Board held before deciding to allow alcohol sales in Lykins Park for a concert.
In a letter responding to the Sun's challenge, the parks board said it had received several specific legal threats about allowing alcohol sales in Lykins Park. Under the Kentucky Open Meetings Act, public bodies, including the parks board, are required to conduct all of their business in an open session except when certain issues arise. Threatened or pending litigation is one of those exceptions in the law, and that justified a closed discussion of the matter during a meeting, according to a letter sent to the Kentucky Attorney General’s office by Clark County Attorney Brian Thomas.
The parks board voted 4-2 to allow the Winchester Fraternal Order of Police to sell beer during the John Michael Montgomery Country-Fest, despite an existing policy that prohibits alcohol in public parks in Clark County. The vote in public session on Sept. 12 followed the discussion in executive session.
In its Sept. 21 appeal to the attorney general, The Sun argued that the possibility of litigation was “remote” and therefore the exemption did not apply. Thomas responded for the park board that several people had threatened to sue the board if the waiver were granted.
The attorney general's office has not issued its opinion in the matter. That opinion has the force of law unless it is appealed to circuit court.
Read the Sun's story here.
In a letter responding to the Sun's challenge, the parks board said it had received several specific legal threats about allowing alcohol sales in Lykins Park. Under the Kentucky Open Meetings Act, public bodies, including the parks board, are required to conduct all of their business in an open session except when certain issues arise. Threatened or pending litigation is one of those exceptions in the law, and that justified a closed discussion of the matter during a meeting, according to a letter sent to the Kentucky Attorney General’s office by Clark County Attorney Brian Thomas.
The parks board voted 4-2 to allow the Winchester Fraternal Order of Police to sell beer during the John Michael Montgomery Country-Fest, despite an existing policy that prohibits alcohol in public parks in Clark County. The vote in public session on Sept. 12 followed the discussion in executive session.
In its Sept. 21 appeal to the attorney general, The Sun argued that the possibility of litigation was “remote” and therefore the exemption did not apply. Thomas responded for the park board that several people had threatened to sue the board if the waiver were granted.
The attorney general's office has not issued its opinion in the matter. That opinion has the force of law unless it is appealed to circuit court.
Read the Sun's story here.
Tuesday, October 11, 2011
Agency is pressured to re-post database of doctors' malpractice and disciplinary cases
U.S. Sen. Charles Grassley has joined journalists, academic researchers and consumer groups in calling on the Health Resources and Services Administration to put back online the National Practitioner Data Bank, a database of malpractice and disciplinary cases against doctors.
"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"
For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.
The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.
Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."
Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."
The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)
"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"
For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.
The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.
Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."
Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."
The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)
Friday, October 7, 2011
Attorney general rules Louisville's University Hospital is a public institution
Louisville's University Hospital is a public institution, not a private one, which means the state gets a say about the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System, Attorney General Jack Conway said in an open-records decision Wednesday.
Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.
"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)
The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.
Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.
"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)
The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.
Friday, September 16, 2011
AG declares Pike utility's records open
The records of a controversial utility in Eastern Kentucky are covered by the state Open Records Act "because two public agencies supply at least 25 percent of the funds it expends in the state," The Associated Press reports. "Deputy Attorney General Patrick Hughes wrote that Utility Management Group, based in Pike County, must turn over records requested by the Pike [County] Fiscal Court."
Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.
Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.
Thursday, September 15, 2011
AG again says Health and Family Services Cabinet violated Open Records Act
The attorney general's office has again cited the Cabinet for Health and Family and Services for failing to following the dictates of the Kentucky Open Records Act. This is the second time this year the attorney general's office has ruled that the cabinet violated the law in response to a request from Elizabeth Coleman, a cabinet employee.
In the Sept. 6 opinion, which has the force of law unless overruled by a state circuit court judge, Attorney General Jack Conway held the cabinet "committed both procedural and substantive violations" by failing to provide an employee with timely access to the records she requested.
Coleman filed a grievance with the cabinet June 10. On July 15, she filed a request under the provisions of the Open Records Act for records related to the grievance. On July 19, the cabinet replied it could not meet the three-day deadline required under the law but expected to fulfill her request by July 27. According to the attorney general's opinion, when Coleman heard no more from the cabinet by Aug. 3, she appealed to the attorney general, an option available to anyone who is denied records.
The cabinet told the attorney general's office it had replied on July 21. Coleman denies receiving a response before she filed the appeal on Aug. 3. In either case, the opinion said the cabinet failed to provide Coleman all the records she was entitled to review. The document she received was a single record indicating the disposition of her complaint, lacking any of the notes or interviews of those involved in reviewing her grievance.
In an opinion issued in April in an almost identical appeal, the attorney general's office ruled "The information to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from the grievance she filed. She is entitled to inspect and copy “any record,” including investigator’s notes, that relate to the investigation. The cabinet’s refusal to allow her access to these records constituted a violation of the Open Records Act."
The cabinet can appeal the ruling to Franklin Circuit Court within 30 days to keep it from becoming final.
In the Sept. 6 opinion, which has the force of law unless overruled by a state circuit court judge, Attorney General Jack Conway held the cabinet "committed both procedural and substantive violations" by failing to provide an employee with timely access to the records she requested.
Coleman filed a grievance with the cabinet June 10. On July 15, she filed a request under the provisions of the Open Records Act for records related to the grievance. On July 19, the cabinet replied it could not meet the three-day deadline required under the law but expected to fulfill her request by July 27. According to the attorney general's opinion, when Coleman heard no more from the cabinet by Aug. 3, she appealed to the attorney general, an option available to anyone who is denied records.
The cabinet told the attorney general's office it had replied on July 21. Coleman denies receiving a response before she filed the appeal on Aug. 3. In either case, the opinion said the cabinet failed to provide Coleman all the records she was entitled to review. The document she received was a single record indicating the disposition of her complaint, lacking any of the notes or interviews of those involved in reviewing her grievance.
In an opinion issued in April in an almost identical appeal, the attorney general's office ruled "The information to which she requested access is contained in the records reviewed and/or generated in the course of the investigation that resulted from the grievance she filed. She is entitled to inspect and copy “any record,” including investigator’s notes, that relate to the investigation. The cabinet’s refusal to allow her access to these records constituted a violation of the Open Records Act."
The cabinet can appeal the ruling to Franklin Circuit Court within 30 days to keep it from becoming final.
Foes of law letting optometrists use lasers may sue, alleging violation of Open Meetings Act
Although ophthalmologists and the Kentucky Medical Association strongly objected, a legislative committee appoved regulations Tuesday that will allow optometrists to perform some eye surgeries using lasers.
In answer, opponents say "they might file legal action against theKentucky Board of Optometric Examiners, which drafted the regulations, for failing to comply with the state's Open Meetings Act," reports Beth Musgrave of the Lexington Herald-Leader.
The regulations, passed under Senate Bill 110 of this year's General Assembly, now go to another legislative panel. If they pass, optometrists may be allowed to perform the surgeries by year's end. The bill has been cause for controversy, in large part because it passed through the legislature in a swift 12 days. Oklahoma is the only other state that gives similar operating privileges to optometrists.
Ophtalmologists said Tuesday the optometric board "used a task force appointed by the state optometric association, a trade group, to develop the regulations, and those meetings were held in secret with no public input," Musgrave reports. Legislators and optometrists disagreed, saying public comment was allowed at an open meeting in July, and the regulations were altered after task force members took the comments into consideration. (Read more)
In answer, opponents say "they might file legal action against theKentucky Board of Optometric Examiners, which drafted the regulations, for failing to comply with the state's Open Meetings Act," reports Beth Musgrave of the Lexington Herald-Leader.
The regulations, passed under Senate Bill 110 of this year's General Assembly, now go to another legislative panel. If they pass, optometrists may be allowed to perform the surgeries by year's end. The bill has been cause for controversy, in large part because it passed through the legislature in a swift 12 days. Oklahoma is the only other state that gives similar operating privileges to optometrists.
Ophtalmologists said Tuesday the optometric board "used a task force appointed by the state optometric association, a trade group, to develop the regulations, and those meetings were held in secret with no public input," Musgrave reports. Legislators and optometrists disagreed, saying public comment was allowed at an open meeting in July, and the regulations were altered after task force members took the comments into consideration. (Read more)
Tuesday, September 13, 2011
Hopkinsville paper publishes public officials' pay, makes readers aware of records
Many Kentuckians are not aware they can file open-records requests to obtain information they are entitled to see, such as salaries of public employees, reports Dave Boucher of the Kentucky New Era in Hopkinsville.
In a recent weekend issue of the paper (Aug. 27-28), Boucher reported that he filed 20 records requests to acquire information on city and county employee salaries. Al Cross, director of the Institute for Rural Journalism and Community Issues, told Boucher that public officials in rural places "can feel like a request to know their salary is an invasion of privacy," a feeling that stems from rural community culture in which a public office can be regarded as a private possession.
People simply don't understand what types of information they are entitled to see, Cross told Boucher. According to the Kentucky Open Records Act, any agency that receives at least 25 percent of its funding from public sources is subject to a request, Boucher writes. There are some exemptions, including "unwarranted invasion of personal privacy" and classified information, but salaries are not on that list. (Read more)
In a recent weekend issue of the paper (Aug. 27-28), Boucher reported that he filed 20 records requests to acquire information on city and county employee salaries. Al Cross, director of the Institute for Rural Journalism and Community Issues, told Boucher that public officials in rural places "can feel like a request to know their salary is an invasion of privacy," a feeling that stems from rural community culture in which a public office can be regarded as a private possession.
People simply don't understand what types of information they are entitled to see, Cross told Boucher. According to the Kentucky Open Records Act, any agency that receives at least 25 percent of its funding from public sources is subject to a request, Boucher writes. There are some exemptions, including "unwarranted invasion of personal privacy" and classified information, but salaries are not on that list. (Read more)
Monday, September 12, 2011
AG rules Carter County Fiscal Court violated open meetings law by restricting recording
A Carter County Fiscal Court's resolution to restrict cameras and video recording of fiscal court meetings to the last pew of the fiscal court room" was overturned Thursday by Attorney General Jack Conway, Katie Brandenburg of The Independent in Ashland reports. Conway called the resolution "unenforceable and inimical to the public good."
The resolution was passed Aug. 9 after the court's request for "Mignon Colley, Carter County Republican chairwoman, to move her video camera," Brandenburg reports. After an unresolved complaint Colley made to Carter County Judge-Executive Charles Wallace, Colley filed an appeal with the attorney general's office.
Conway ruled, "The Carter County Fiscal Court cannot, by ordinance, executive order, or resolution, abridge the statutorily invested right to videotape public meetings." This decision is not "just an opinion" as Wallace told Brandenburg. The attorney general "issues legally binding decisions in disputes under the open records and meeting laws," the attorney general's website reports. The court must file an appeal in circuit court to contest this decision. (Read more)
The resolution was passed Aug. 9 after the court's request for "Mignon Colley, Carter County Republican chairwoman, to move her video camera," Brandenburg reports. After an unresolved complaint Colley made to Carter County Judge-Executive Charles Wallace, Colley filed an appeal with the attorney general's office.
Conway ruled, "The Carter County Fiscal Court cannot, by ordinance, executive order, or resolution, abridge the statutorily invested right to videotape public meetings." This decision is not "just an opinion" as Wallace told Brandenburg. The attorney general "issues legally binding decisions in disputes under the open records and meeting laws," the attorney general's website reports. The court must file an appeal in circuit court to contest this decision. (Read more)
Saturday, September 10, 2011
C-J, ACLU ask Conway to decide if Louisville's University Hospital is a public agency
Attorney General Jack Conway has been asked to decide "whether University Hospital is a public institution — an issue in the controversial plan to merge the University of Louisville’s main teaching hospital with two other health-care systems," Patrick Howington of The Courier-Journal reports.
ACLU of Kentucky and The Courier-Journal have appealed denials of open-records requests they made to University Medical Center Inc., which does business as University Hospital. "(University Medical Center) turned down both requests on grounds that it is a nonprofit corporation rather than a public agency and therefore isn’t subject to the act," Howington writes. An attorney general’s opinion on open records or open meetings has the force of law unless overturned in court.
ACLU of Kentucky and The Courier-Journal have appealed denials of open-records requests they made to University Medical Center Inc., which does business as University Hospital. "(University Medical Center) turned down both requests on grounds that it is a nonprofit corporation rather than a public agency and therefore isn’t subject to the act," Howington writes. An attorney general’s opinion on open records or open meetings has the force of law unless overturned in court.
Saturday, August 27, 2011
News outlets are less inclined to take legal action for open government, but citizens are becoming more active, national survey finds
"While a lack of resources has made news organizations increasingly less inclined to file freedom-of-information lawsuits, citizens have a growing interest in government transparency and are becoming more active in asserting their right to government information," the Media Law Resource Center and the National Freedom of Information Coalition report after an informal, online survey conducted Aug. 9-15. It confirmed continuation of a trend first noticed in 2009.
"If ordinary citizens are becoming more aware of their access rights, and more assertive regarding them, it is indeed a reason to be gratified," said Ken Bunting, executive director of NFOIC. "However, if news organizations are trending toward being less gung-ho in an area once regarded as a matter of responsibility and stewardship, there is the frightening potential that journalism could suffer, as could the health of our democracy." For the NFOIC release and links to the study documents, click here.
After the 2009 survey, the John S. and James L. Knight Foundation created the Knight FOI Fund to pay initial expenses and fees for open-government lawsuits that the fund considers worthwhile.
"If ordinary citizens are becoming more aware of their access rights, and more assertive regarding them, it is indeed a reason to be gratified," said Ken Bunting, executive director of NFOIC. "However, if news organizations are trending toward being less gung-ho in an area once regarded as a matter of responsibility and stewardship, there is the frightening potential that journalism could suffer, as could the health of our democracy." For the NFOIC release and links to the study documents, click here.
After the 2009 survey, the John S. and James L. Knight Foundation created the Knight FOI Fund to pay initial expenses and fees for open-government lawsuits that the fund considers worthwhile.
Wednesday, August 24, 2011
U of L physicians' group drops open-records appeal, but C-J may still not get records
An organization representing University of Louisville doctors who were trying to keep their financial records private dropped its lawsuit appealing an adverse open-records decision Tuesday. In April, Attorney General Jack Conway ruled that University of Louisville Physicians Inc. is a public agency and, as such, is subject to the Kentucky Open Records Act. Conway's opinion was requested by The Courier-Journal.
Last November, state Auditor Crit Luallen released a scathing audit of Passport, which provides managed care for 165,000 Medicaid patients in Jefferson and 15 surrounding counties. The audit accused the organization of "wasteful spending, conflicts of interest and the questionable transfer of $30 million in Medicaid funds to organizations represented on Passport's board, including University Physician Associates," The Courier-Journal's Tom Loftus reports. Because of the audit, the newspaper asked for financial records from University Physicians Associates and University of Louisville Physicians Inc., which is the successor to University Physicians Associates. They refused to hand over the records, and Conway's decision followed.
Though the attorney general determined the organization should be subject to the open-records law, and the doctors' lawsuit has been dismissed, giving Conway's opinion the force of law, The Courier-Journal may not receive the records it has asked for. In its notice of dismissal, University of Louisville Physicians stated it could change "its structure and function in the future which it believes may alter its status as a public agency."
"We are still forming our final structure and function," Diane Patridge, ULP's vice president for marketing and communications, told Loftus. "Once we're up and fully established we may appeal this current determination." Curiously, "Partridge also said that ULP has no records to release to the newspaper as a result of the dismissal of the case," because it has no employees – even though it was incorporated in March 2010. "She said University Physicians Associates . . . has handled all financial matters and paperwork for ULP to date," Loftus reports.
“This case is another piece of a puzzle,” Courier-Journal attorney Jon Fleischaker said. “It’s another step to try to make sure there’s more transparency at the University of Louisville School of Medicine and University Medical Center.” (Read more)
"Sounds like a shell game with shell corporations," said Al Cross, director of the Institute for Rural Journalism and Community Issues and associate extension professor of journalism at the University of Kentucky.
Last November, state Auditor Crit Luallen released a scathing audit of Passport, which provides managed care for 165,000 Medicaid patients in Jefferson and 15 surrounding counties. The audit accused the organization of "wasteful spending, conflicts of interest and the questionable transfer of $30 million in Medicaid funds to organizations represented on Passport's board, including University Physician Associates," The Courier-Journal's Tom Loftus reports. Because of the audit, the newspaper asked for financial records from University Physicians Associates and University of Louisville Physicians Inc., which is the successor to University Physicians Associates. They refused to hand over the records, and Conway's decision followed.
Though the attorney general determined the organization should be subject to the open-records law, and the doctors' lawsuit has been dismissed, giving Conway's opinion the force of law, The Courier-Journal may not receive the records it has asked for. In its notice of dismissal, University of Louisville Physicians stated it could change "its structure and function in the future which it believes may alter its status as a public agency."
"We are still forming our final structure and function," Diane Patridge, ULP's vice president for marketing and communications, told Loftus. "Once we're up and fully established we may appeal this current determination." Curiously, "Partridge also said that ULP has no records to release to the newspaper as a result of the dismissal of the case," because it has no employees – even though it was incorporated in March 2010. "She said University Physicians Associates . . . has handled all financial matters and paperwork for ULP to date," Loftus reports.
“This case is another piece of a puzzle,” Courier-Journal attorney Jon Fleischaker said. “It’s another step to try to make sure there’s more transparency at the University of Louisville School of Medicine and University Medical Center.” (Read more)
"Sounds like a shell game with shell corporations," said Al Cross, director of the Institute for Rural Journalism and Community Issues and associate extension professor of journalism at the University of Kentucky.
Monday, August 22, 2011
Series on questionable disability payments in Lexington led to closure of records involved
Sometimes journalism based on public records prompts government officials to hide the records to prevent further journalism about them.
In 2005, the Lexington Herald-Leader revealed "a high rate of disability pensions among Lexington police officers and firefighters. The stories named pensioners with allegedly severe physical ailments who remained competitive athletes or who returned to the public payroll for new jobs similar to their old ones," John Cheves writes for the newspaper.
"Change came almost immediately. But not to the system doling out millions of dollars in disability pensions every year. Rather, the public no longer has access to many city records the newspaper used to report its stories. Police and fire unions successfully lobbied the General Assembly in 2006 to exempt those documents from the Kentucky Open Records Act." (Read more)
In 2005, the Lexington Herald-Leader revealed "a high rate of disability pensions among Lexington police officers and firefighters. The stories named pensioners with allegedly severe physical ailments who remained competitive athletes or who returned to the public payroll for new jobs similar to their old ones," John Cheves writes for the newspaper.
"Change came almost immediately. But not to the system doling out millions of dollars in disability pensions every year. Rather, the public no longer has access to many city records the newspaper used to report its stories. Police and fire unions successfully lobbied the General Assembly in 2006 to exempt those documents from the Kentucky Open Records Act." (Read more)
Friday, August 5, 2011
Kentucky looks like only state that denies access to recordings made by police-cruiser cameras
Kentucky appears to be the only state that denies public access to recordings made by cameras in police cruisers. Scott Wartman of The Kentucky Enquirer discovered that this week as he followed up on the guilty plea by Covington City Commissioner Steve Frank for driving under the influence.
"Open-records laws across the country compiled by the Reporters Committee for Freedom of the Press show that only in Kentucky is the public not allowed to view video of DUI traffic stops," Wartman writes. "First Amendment experts say they don't know of any other state with an exemption for DUI videos," and some think the law "raises constitutional issues and violates the public's right to know." Making cruiser recordings available "serves as an important check on police abuse," David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, told Wartman.
The law was passed in 1984 with major changes to Kentucky's DUI law. The sponsor of the bill, then Sen. Henry Lackey, told Wartman that he didn't know why. "I don't remember anyone bringing that issue up," said Lackey, now deputy state aviation commissioner. Jon Fleischaker, attorney for the Kentucky Press Association, told Wartman, "Although I don't know for certain, my guess is it was done out of some misguided sense of privacy and some concern for how the thing could be used." He said the law could be challenged on constitutional grounds if a recording is used in a case. "Let's say I'm a defendant who is wrongfully accused and I want to show the public the tape," he said. "Why shouldn't I be able to do that?"
"Open-records laws across the country compiled by the Reporters Committee for Freedom of the Press show that only in Kentucky is the public not allowed to view video of DUI traffic stops," Wartman writes. "First Amendment experts say they don't know of any other state with an exemption for DUI videos," and some think the law "raises constitutional issues and violates the public's right to know." Making cruiser recordings available "serves as an important check on police abuse," David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, told Wartman.
The law was passed in 1984 with major changes to Kentucky's DUI law. The sponsor of the bill, then Sen. Henry Lackey, told Wartman that he didn't know why. "I don't remember anyone bringing that issue up," said Lackey, now deputy state aviation commissioner. Jon Fleischaker, attorney for the Kentucky Press Association, told Wartman, "Although I don't know for certain, my guess is it was done out of some misguided sense of privacy and some concern for how the thing could be used." He said the law could be challenged on constitutional grounds if a recording is used in a case. "Let's say I'm a defendant who is wrongfully accused and I want to show the public the tape," he said. "Why shouldn't I be able to do that?"
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