Health and family cabinet keeps withholding more information on child abuse than judge allowed

The state Cabinet for Health and Family Services released three more death and near-death cases involving child abuse or neglect Friday under court order, but continued to withhold critical information. It has appealed the order.

The 2009 cases involve two babies who died from suffocation while the parents were impaired. A third case involves a 2-year-old girl from Lawrence County, who was injured after she was reportedly kicked in the head by a horse while unsupervised.

The cabinet "continues to withhold, or redact, far more information" than was allowed under the Jan. 19 order of Franklin Circuit Judge Phillip Shepherd, reports Deborah Yetter of The Courier-Journal. Shepherd said the cabinet could withhold the names of children seriously injured by abuse or neglect, names of private citizens who report suspected abuse, the names of minor siblings in the home and the names of minor perpetrators.

But the cabinet is withholding more information than that. "For example, in the case of the girl injured by the horse, the cabinet deleted the name and relationship of the adult who was watching her, even though the adult is named and identified as her grandfather in a separate internal review of the case," Yetter reports. "The cabinet also withheld juvenile and family court records in that case and the names of all adults involved." The girl recovered from the skull fracture sustained by the horse.

Gavin Villarreal never woke up after he was found with a plastic bag over his head in his crib, possibly placed over the 5-month-old's head by other young children in the home. His parents both tested positive for drugs on the day of his death and were convicted. In the third case, a month-old baby died after his father apparently rolled over him in his sleep. Both parents admitted they had been drinking and used marijuana before they went to bed. (Read more)

Beshear and child-welfare officials appeal records decision, say it is too broad, look to legislature

On the day the state was supposed to release unadulterated records on deaths and near deaths from child abuse, under a court order, it filed an appeal to stop the process. And though Gov. Steve Beshear had ordered the Cabinet for Health and Family Services to release the records, yesterday he sided with its officials, saying in an op-ed piece sent to Kentucky newspapers he did not "think the judge's order was protective enough" of informants who often want to remain secret, such as relatives, health-care providers, teachers and law-enforcement officials. (Getty Images photo)

“You teach in a small community and suspect a student is being abused,” Beshear wrote. “Can you come forward without the newspaper naming you as the accuser?" Jon Fleischaker, attorney for The Courier-Journal and the Kentucky Press Association, said Beshear was “fear-mongering,” and noted that Shepherd’s order to release records applies only in cases in which children were killed or nearly killed from abuse or neglect, following a state law designed to hold the cabinet accountable for its child protective services.

Beshear wrote, “The cabinet has been accused of 'operating under a veil of secrecy' in a supposed attempt to protect inept workers and a poorly designed system. But this is not about shielding the system from scrutiny. We understand the need to be more transparent than in years past.” The legislature may decide the issue, because Beshear said legislation is needed to clarify the extent of confidentiality, and House Health and Welfare Committee Chairman Tom Burch, D-Louisville, agreed.

In December, the cabinet handed over 353 pages of records, but the names of at least eight children who died from abuse or neglect had been redacted, along with all the names of children who had been seriously injured, as well as much other information. The Courier-Journal, the Lexington Herald-Leader and the Todd County Standard had sued the cabinet for refusing to release the records. Twice before, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to turn them over. Last week, Shepherd fined the agency $16,000 for its secretive treatment and delays. He also found the cabinet should pay more than $57,000 in legal fees for the newspapers. (Read more)

Yesterday, the cabinet filed its motion with the state Court of Appeals and "asked the court to block Shepherd's Jan. 19 order to release records, starting today, with limited redactions," reports the C-J's Deborah Yetter. In the meantime, the cabinet released about 90 internal reviews of child deaths and serious injuries incurred by abuse but with deletions it feels is necessary "to protect the best interests of the state's child welfare system," its motion read. (Read more)

Journalists, child-protection officials debate their differing approaches to Ky. child abuse problem

In a state that has led the nation in deaths of children from abuse and neglect, Kentucky journalists and the officials who must protect children agree that more public attention needs to be focused on the issue.

But they don’t agree on how to do it, and have been fighting expensive battles in court over it, because their professions have sharply divergent views on what kind of information the state should have to release.

“The profession of social work is based on confidentiality,” the state’s top child-protection official told reporters, editors and publishers during a panel discussion at the Kentucky Press Association convention in Lexington Friday afternoon.

Confidentiality “was drilled into us just as openness was drilled into you” in professional education, said Teresa James, who became acting commissioner of the Department for Community-Based Services in December after 25 years as a social worker. “Just as passionate as you are about the First Amendment, I am passionate about confidentiality.”

Social workers argue that without being able to assure informants of confidentiality, the system that protects children won’t get some of the information it needs.

But journalists, their employers and their lawyers say the state has been much more secretive than the law allows about cases in which children died or nearly died, circumstances in which state law makes otherwise confidential information available. (Read more)

Making agency more open gets top priority from attendees at Ky. Summit to End Child Abuse Deaths

"Eliminating secrecy at the Cabinet for Health and Family Services was the top vote-getter" among 250 "judges, lawmakers, child advocates and social workers" in a packed house at the Kentucky Summit to End Child Abuse Deaths yesterday in Louisville, reports Deborah Yetter of The Courier-Journal.

The top recommendations, as listed by Linda Blackford of the Lexington Herald-Leader, were to increase:
 Improve transparency and accountability at the cabinet;
 Increase funds for proven and effective services such court appointed advocates, substance abuse programs, in-home services and parent advocate programs;
 Increase funds for additional social workers and support;
 Improve the system of collaboration among agencies involved in the child welfare system.

"Transparency and accountability became big issues after the Herald-Leader and The Courier-Journal sued the state to get access to case files of children who have died or nearly died as a result of neglect and abuse," Blackford notes in her story.

Jon Fleischaker, left, and Dr. James J. Clark,
associate dean for research at the University
of Kentucky College of Social Work

Top Kentucky news-media lawyer Jon Fleischaker said it was details of the case of murdered Todd County 9-year-old Amy Dye — details "that the cabinet first denied it had, then fought to keep secret — that helped galvanize public outrage over shortcomings of the child welfare system," Yetter reports, quoting Fleischaker: “There is a culture of secrecy that deprives the public of all information. If the public doesn’t know about it, good luck on getting more funding.”

Cabinet Secretary Janie Miller "gave a brief luncheon speech at the summit, saying her agency welcomed the work of the summit," Yetter reports. "Afterward, in an interview, Miller declined to comment on the litigation over access to child abuse records between the cabinet and the state’s two largest newspapers." (Read more)

"Any bill that Kentucky lawmakers pass in the name of children should uphold the spirit and the letter of the state’s open records law," The Courier-Journal says in an editorial.

Judges like bill to open juvenile courts, but it would make reporters' notes subject to inspection

Family Court judges told a legislative committee yesterday that Kentucky's juvenile courts should be made open, to improve scrutiny of the state's bedraggled system of child protection, and endorsed a bill to start that. But the state's leading news-media lawyer, who has been fighting to open the system, objected to a provision in the bill that would make notes taken by anyone in court subject to inspection by the judge. For the story from Beth Musgrave of the Lexington Herald-Leader, click here.

Nominate a local open-govermnent hero for national recognition during Sunshine Week

For the observance of Sunshine Week, March 11-17, you are invited to nominate individuals who have played significant roles in fighting for government transparency. Get the nomination form here. All nominations must be received by Feb. 20.

The 2012 Local Hero will win an expense-paid trip to the American Society of News Editors convention April 2-4 in Washington. Second- and third-place winners will receive $500 and $250, respectively. ASNE and the Reporters Committee for Freedom of the Press sponsor Sunshine Week. For more information and the free materials available to all participants, visit the Sunshine Week website.

Elected public officials have a lower expectation of privacy, AG reiterates in Louisville constable case

The state attorney general’s office recently found that the Department of Criminal Justice Training improperly withheld records that could reveal whether Constable David Whitlock of Louisville successfully completed the classes in which he was enrolled at the department, as well as any certifications he received.

Whitlock was involved in a shooting altercation at a Louisville store recently, raising questions about his training and whether he had completed the courses that the Louisville Metro government requires constables to take in order to get performance bonds. When Courier-Journal Staff Writer Joseph Lord requested the records on Nov. 4, the department gave him with a copy of Whitlock’s transcript showing which courses he attended and the number of hours for each course, but excluded the test scores, citing the "clearly unwarranted invasion of personal privacy" exception of the Open Records Act.

Attorney General Jack Conway said that as an elected public official, Whitlock represents the public in his work and answers to the voters, so the public has more legitimate interest in him than a general public employee. "Inasmuch as Constable Whitlock, a publicly elected official, enrolled in classes which related to his work and were intended to better qualify him to discharge his duties, the public is entitled to know whether he successfully completed those classes," Conway said.

The decision said it stands for the notion that elected public officials have a lower expectation of privacy than a non-elected public employee, and reiterates a previous decision “that the privacy rights of the public employee extend only to matters which are not related to the performance of his [or her] work.”

Disclosing total fees for sewer project does not invade customers' privacy, attorney general rules

The City of Danville violated the state Open Records Act substantively and procedurally when it failed to respond timely and gave an invalid reason for refusing to reveal fees generated by a sewer project, the state attorney general's office has ruled.

On Oct. 12, Clay Moore requested “one copy of the revenue received by the City of Danville, by month for 2009, 2010, and 2011, to date, from commercial and residential sewer fees generated from the Mocks Creek Sewer Project for Northpoint [Training Center], Hunt Farm Subdivision and residential customers of Gwinn Island.”

Moore did not receive a response within three days as the open-records law mandates, and he appealed to Attorney General Jack Conway. On Oct. 31, 19 days after the original request, the city clerk issued a response denying the request on grounds of privacy, the exemption found at KRS 61.878(1)(a). Conway ruled that “disclosing the requested aggregate information would not identify the water and sewer usage of specific individuals,” so “that information cannot properly be characterized as personal.” The law says the exemption applies only in case of “a clearly unwarranted invasion of personal privacy.”

The attorney general noted a similar case prompted by the city's refusal to let Moore see similar records, and stressed that “the interest of the public in ensuring that the Department has and fairly enforces uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.” He noted that the city had “generic billing information without individual customer names which could be used to verify billing methodology and calculations.”

Child-abuse records were opened in 1990s

Though it made big, breaking news last week, releasing state records about severe child abuse isn't new in Kentucky, writes Joseph Gerth, right, in a column in The Courier-Journal.

"During Gov. Brereton Jones' term in office from 1991-1995, the state social-work agency released child-fatality reports on its own," he writes. "That came after an earlier tragic death of a child in Wayne County who was beaten to death by his stepfather after numerous contacts with state social workers."

Gerth's column comes after last Tuesday's announcement by Gov. Steve Beshear that he ordered the Cabinet for Health and Family Services to release records pertaining to children who have been killed or nearly killed as a result of abuse or neglect. "Transparency will be the new rule," he said.

Gerth said Beshear "finally gave in to mounting pressure from the media, an angry judge and frustrated legislators to release the records involving the death of a Wayne County toddler who drank drain cleaner that was allegedly being used to produce methamphetamine," Gerth writes. The C-J and the Lexington Herald-Leader had long been suing the cabinet to release documentation pertaining to the case and Franklin Circuit Judge Phillip Shepherd had twice ruled the cabinet do so.

In the 1990s, it was then-cabinet Secretary Masten Childers II who ordered that child-fatality records be released. "The reports showed that the agency wasn't doing its job and that low-paid social workers were stretched thin and handling too many cases," Gerth writes. "Jones ultimately called for raising the pay for the lowest-paid social workers ... and he called for hiring 60 more social workers across the state. Could it have been that Childers believed more in openness than the current secretary, Janie Miller?" (Read more)

Whitley County clerk ignores open records decision

The Whitley County Clerk has decided to ignore an opinion of the Attorney General's office that she is charging too much for copies and that record-seekers are within the law when using their own scanners to make copies.

Whitley County Clerk Kay Schwartz told the News Journal that she is posting her own rules, setting a fee of 50 cents per page for record copying and barring the use of hand-held scanners. Both practices violate an attorney general's opinion issued Oct. 13.

Allison Martin, communications director for Kentucky Attorney General Jack Conway, told the News Journal that since the ruling wasn't appealed within 30 days, it has the force of law.

"The Whitley County Clerk is in violation of the law by charging 50 cents per copy," Martin said.

Clerk Schwartz is the president of the Kentucky County Clerks Association. She said the association will try to convince the legislature to set the copying fee at 50 cents per page. The current allowable fee is 10 cents per page. In the meantime, unless her practice is challenged in court, she is continuing to defy the law.

Read the News Journal story here.

Small, weekly newspaper beats stonewalling state agency in case of adopted child's murder

When a 9-year-old girl was found beaten to death and her adoptive brother was charged with murder, the local newspaper wanted to know what the state child-welfare agency had done, or not done, with the family in the four years Amy Dye, left, had been placed there. The Kentucky Cabinet for Families and Children stonewalled the Todd County Standard, but the small, weekly newspaper fought in court and a judge found that the agency had violated the state open-records law -- and prevented further stonewalling on appeal by putting the records in his ruling.

The records paint "deplorable picture of what happens when those who are assigned to protect a child fail," Editor-Publisher Ryan Craig wrote in his Nov. 9 paper. Franklin Circuit Judge Philip Shepherd of Frankfort "said that Amy was put in the Dye home despite there being a 'substantiated' incident of child abuse prior to her placement" and the case is an "example of the 'potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny'," Craig wrote.

In his Nov. 16 edition, Craig reported that a closer look at the records showed "that the cabinet made a choice within a few days of Amy Dye’s death and a day after the Standard filed an open records request to declare the scope of the investigation in a way that would keep the files from becoming public," by classifying its probe as a "neglect investigation" instead of a "fatality investigation," which by law must be public. His story noted that "Officials with the Cabinet delayed nearly two weeks — violating open-records laws — before even responding to the Standard’s initial request for records. Then when the Standard received a response, it was told there were no files whatsoever on Amy Dye."

The Standard is not online, but we have posted PDFs of its Nov. 9 front and jump pages here and here and its Nov. 16 pages here and here. The photo of Amy is from The Courier-Journal of Louisville, which reported on the case in detail today. For the story by Deborah Yetter, go here.

Legislative committee may review transparency of state cabinet in child abuse death records

The co-chairs of the legislative committee that oversees the state's health and welfare services say they hope to hold a hearing in December about the state's handling of records regarding deaths and near deaths of kids in Kentucky's child-welfare system.

The Lexington Herald-Leader reported Nov. 17 that Democratic Rep. Tom Burch and Republican Sen. Julie Denton, both of Louisville, said they want to hold hearings on whether the Cabinet for Health and Family Services is being transparent in the way it reports deaths and near-deaths of children under its supervision.

The cabinet has lost three open-records lawsuits recently because of its failure to make public its records in the deaths of several children under the cabinet's supervision.

Read more of the story.

Social worker who handled case of murdered child resigns after another child's death

A social worker for the state's Cabinet for Health and Family Services resigned in October before she was fired in the aftermath of a child's death.

The Lexington Herald-Leader reported Nov. 18 that supervisors wanted to fire the employee, citing claims that she didn't fully investigate a June 14 report about a three-year-old girl's arm being broken. According to state records, the supervisors believed the social worker failed to properly investigate allegations of physical abuse of a Christian County girl who died less than a month later. Her father has been charged with murdering her.

The girl, Alayna Adair, died July 2 after being taken to a Nashville hospital. Her father, Charles T. Morris, 22, is charged with murder.

The same social worker, according to state records, also helped handle reports of physical abuse of Amythz Dye, the nine-year-old Todd County girl beaten to death by her adoptive brother in February. Franklin Circuit Judge Phillip Shepherd ruled earlier this month that the state's records regarding her death must be made public. The Todd County Standard filed the lawsuit to obtain access to the records. To read about the judge's ruling in the case, read a report at KyForward.com.

According to the Lexington Herald-Leader, a spokeswoman for Attorney General Jack Conway said the office has been notified of the allegations against the social worker. The spokeswoman would neither confirm nor deny the existence of an investigation. (Read more)

UK hosts annual First Amendment Celebration

An award-winning investigative reporter, author and journalism professor will deliver the annual State of the First Amendment Address at the University of Kentucky Tuesday, Nov. 15.

Mark Feldstein, author of "Poisoning the Press," is the featured speaker at the annual First Amendment Celebration sponsored by the Scripps Howard First Amendment Center and the UK School of Journalism and Telecommunications.

Feldstein worked as an on-air investigative correspondent at CNN, ABC News, and several local television stations during a 20-year career. For his work, he won the Edward R. Murrow broadcasting prize and two George Foster Peabody medallions.

And for his work, he was beaten up in the United States, detained and censored by government authorities in Egypt, and escorted out of Haiti under armed guard. His exposes led to resignations, firings, multimillion-dollar fines and prison terms.

Feldstein’s 2010 book, "Poisoning The Press," documents the bitter relationship between Jack Anderson, a journalist whose column damaged and destroyed political careers, and President Richard Nixon. Feldstein was once an intern for Anderson, whose column, "Washington Merry Go-Round," was immensely popular. The book has received widespread critical acclaim and earned top academic awards for research.

Feldstein is a graduate of Harvard and earned his doctorate at the University of North Carolina at Chapel Hill. He is the Richard Eaton Professor of Broadcast Journalism at the University of Maryland.

Feldstein has been published in numerous peer-reviewed journals; he has also won awards for his scholarship from the American Journalism Historians Association and other academic organizations. He is widely quoted as a media analyst by leading news outlets in the United States and abroad, and has testified as an expert witness on First Amendment issues in court cases and before Congress.

The State of the First Amendment Address will be given in Room 106 of the White Hall Classroom Building. The program begins at 5:30 p.m., Tuesday, Nov. 15, and is free and open to the public.

At the celebration, Al Smith will be presented with the annual James Madison Award for Service to the First Amendment. Smith, a Kentucky editor and publisher, founded and hosted Kentucky Educational Television’s “Comment on Kentucky” program, a weekly discussion of public affairs.

The Scripps Howard First Amendment Center, housed in the university’s School of Journalism and Telecommunications, seeks to promote understanding of the First Amendment among citizens of Kentucky, to advocate for First Amendment rights in the Commonwealth and nationally, and to produce internationally recognized scholarship concerning the First Amendment and its related freedoms.

Al Smith to receive James Madison Award

Al Smith, who created "Comment on Kentucky," a statewide forum that has fostered public discussion of Kentucky policy and politics, has been chosen the 2011 recipient of the James Madison Award for service to the First Amendment.

Smith will receive the award on Tuesday, Nov. 15, at the annual First Amendment Celebration held by the Scripps Howard First Amendment Center and the University of Kentucky School of Journalism and Telecommunications.

The award is presented annually to a Kentuckian who has made a significant contribution to the values embodied in the First Amendment's guarantee of freedom of speech and of the press. During his distinguished career, Smith was a tireless advocate for open government as a newspaper editor, publisher and industry leader, and television program producer.

“Throughout his distinguished career, Al Smith has promoted and fought for the values that embody our treasured freedoms of expression," Mike Farrell, director of the Scripps Howard First Amendment Center, said. "His life’s work, as a faithful steward of the First Amendment, has enlightened citizens, invigorated our public discourse and held the powerful accountable. Kentucky has been blessed because Al Smith made the state his home and because journalism was his calling.”

"Comment on Kentucky,” a public affairs program broadcast on Kentucky Educational Television each Friday, debuted in November 1974. Smith was its host, discussing with a panel that included journalists, professors and other experts important issues to Kentucky, until he retired 33 years later.

Smith, of Lexington, is the author of a memoir, Wordsmith: My Life in Journalism, which was published this month.

The Madison Award was created by the Scripps Howard First Amendment Center in 2006 and is awarded annually to a Kentuckian who has made significant contributions to the efforts of a free press or freedom of speech. Smith is the sixth recipient.

The Madison Award will be presented at 5:30 p.m. on Nov. 15. Mark Feldstein, former investigative reporter for CNN and ABC News, will then deliver the State of the First Amendment address. The event is free and open to the public in Room 106 of the White Hall Classroom Building on the UK campus.

Greenup sheriff fails to answer records request; that's ruled a violation of state law

The Greenup County Sheriff's Department has violated the Kentucky Open Records Law by failing to respond to a request for records.

On September 16, 2011, John M. Smith submitted an open records request to the sheriff’s department for evidence log sheets relating to a specific case. The department did not respond to Mr. Smith’s request, and on October 3 Mr. Smith filed an appeal to the Office of the Attorney General. The sheriff’s department had yet to respond to Mr. Smith’s request for evidence log sheets or this appeal when the attorney general issued its opinion on Nov. 3.

That inaction violates the Open Records Law, which reads "Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision."

The attorney general's opinion stated public agencies such as the sheriff's department are not permitted to elect a course of inaction and ordered the Greenup County Sheriff’s Department to provide Mr. Smith with copies of his request unless the department can provide him, in writing an acceptable legal basis to deny the requests.

UK's refusal to release cancer registry data violates Open Records Act

The University of Kentucky violated the Kentucky Open Records Act in denying Dr. James W. Coleman’s August 1, 2011, request for “statistical information on female breast cancers in Jefferson County,” according to a recent opinion of the Attorney General's Office.

In response to the request, Official Records Custodian Frank Butler advised Dr. Coleman that the “Kentucky Cancer Registry does not maintain the data you have requested in the format you have requested, he [Dr. Coleman] may apply for a dataset as described on the…website, and that KCR records are confidential by statute.”

The attorney general found UK’s reasons for the denial flawed. The opinion, dated Nov. 1, stated that, a “database is unquestionably a ‘public record’ as that term is defined in the Open Records Law. Dr. Coleman’s request sought information from the Kentucky Cancer Registry, which UK maintains by incidence and mortality rates for more that 70 cancer sites in the state.

The university’s first ground for the denial was that it could not sort the data by zip code and thus could not respond to the request. The attorney general rejected this argument because “UK is not statutorily required to tailor the format of its existing database to conform to the parameters of a request submitted under the Act; however, the alternative is generally to provide a requester with a copy of the entire database after those fields of information for which statutory protection exists, if any, have been redacted.”

The second reason was that UK told Dr. Coleman he could apply for a data set online. This argument was rejected by the attorney general because of KRS 61.874(3), which states that “if a public agency is asked to produced a record in non-standardized format, or to tailor the format to meet the request of an individual or group, the public agency may at its discretion provide the requested format and recover staff costs as well as actual costs incurred.” While this provision is discretionary the other option is to release the entire database. If UK did not want to sort the information requested by zip code then it was supposed to release the whole database in order to let Dr. Coleman sort it himself.

The third reason UK cited was that all cancer registry data is confidential under state law. The attorney general's opinion rejected this argument as well, restating what it had held in a 2004 opinion, the “prohibition on disclosure of data is not … absolute, but is instead confined to data identifying any person whose condition or treatment has been reported to the (Kentucky Cancer Registry.)”

Since the attorney general rejected all of the university’s reasons for the denial, and the university could not provide more detailed information on how the database is maintained, the attorney general found that UK did violate the Open Records Act by refusing to provide Dr. Coleman with access to responsive data that did not describe or identify a particular person. An Open Records Opinion of the Office of Attorney General has the force of law unless appealed to circuit court.

Butler County loses another Open Meetings appeal

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.

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.”

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.