League of Cities stops releasing its records, saying it isn't a public agency

When the Lexington Herald-Leader asked the Kentucky League of Cities for a lot of records a few months ago, the league complied. Now the organization, which has expanded its business activities beyond lobbying, says it will no longer voluntarily release records.

The league "is not a public agency and not subject to the Kentucky Open Records Act," Temple Juett, the League's attorney, said in a letter to the Herald-Leader yesterday. The newspaper reported, "In all the past responses to the Herald-Leader's open records requests, Juett had stated that the league's status as a public agency had never been determined, but that the league would comply voluntarily. Herald-Leader Editor Peter Baniak said the paper will pursue the records issue through the appropriate channels."

Typically, that means an appeal to the attorney general, whose decisions in open-records and open-meetings matters have the force of law, followed by a lawsuit from the side that loses at the attorney general's office. In 1993, the office "found that the Kentucky Association of Counties, similar in its structure and services to the league, was a public agency because it received at least 25 percent of its revenues from public sources," the Herald-Leader reports. "The league receives its revenues from city membership dues, insurance premiums and loan payments. But it is unclear whether the 1993 ruling ... applies to the league."

The league wants a legal determination of its status, said Richmond Mayor Connie Lawson, who chairs the group's executive board. Another board member, Lexington Mayor Jim Newberry, said he did "not understand the league's rationale for changing its position concerning open records." The board opened its June 19 meeting at the request of the Herald-Leader.

On June 17, after the newspaper published stories about the salaries and expenses of top league executives, it asked the group for records of the group's payments to law firms. That prompted this week's letter. The league had denied an earlier request, for records of payments to the firm where Executive Director Sylvia Lovely's husband, Bernard Lovely, is a partner. (Read more)

UPDATE: Sylvia Lovely has resigned as executive director of the league.

Attorney general says county school board violated sunshine law with serial meetings

The Ohio County school board violated the state open-meetings law by having a series of meetings, each having less than a quorum of members, to discuss extending a buyout offer for the superintendent, Attorney General Jack Conway said in opinion that was issued last week and released today.

The opinion was requested by Don Wilkins, editor of the Ohio County Times News, who alleged that the board chairman coordinated the meetings in order to get at least three of the five members to support a retirement buyout for Supt. Soretta Ralph. Wilkins had asked the board to give the weekly newspaper any records reviewed during the meetings and any written accounts of the meetings, to apologize for violating the law, and to pledge to obey it. Board Chairman Barry Geary "never did admit he broke a state law governing open meetings, but he said several times he would never do it again," Wilkins wrote in the May 28 edition.

When Wilkins appealed to the attorney general, Geary admitted speaking to two other members about the proposal. Superintendent Soretta Ralph alleged that Geary had contacted other board members to discuss how they would vote on matters to be dealt with at board meetings, and provided a statement from one member saying Geary had discussed the buyout with him by telephone.

The attorney general's decision (09-OMD-93) said there was no apparent dispute about the conversations, and cited two previous decisions holding that the law's definition of meetings -- "all gatherings of every kind" -- includes telephone conversations. However, it said it is unable to determine whether the meetings were held with the intent of violating the law. It also said it did not have the authority to order the board to produce the documents he requested.

Board attorney A.V. Conway told the attorney general's office that he had no advance knowledge of Geary's discussions with other members about the issue. Wilkins reported May 28, "The attorney said three members of a board cannot discuss something outside an open meeting and then hope to come to an open meeting and vote on that issue." He quoted Conway as saying, “Perhaps I should have had a discussion with the new board members before their first meeting.” Conway is the uncle of the attorney general.

League of Cities invites Herald-Leader to tomorrow's board meeting

UPDATE: Sylvia Lovely has resigned as executive director of the league.

The Kentucky League of Cities board has agreed to open its meeting tomorrow, at which directors are expected to discuss spending and other management issues in the wake of Lexington Herald-Leader stories about the organization that lobbies for cities and in the last 20 years has become their major insurer.

"Our board must be aware of all aspects of our business, including but not limited to compensation policies and guidelines," KLC Executive Director Sylvia Lovely, right, said in an op-ed article in the newspaper today. "And, while we hold to the belief that we are not subject to the open-meetings statutes, we invite the Herald-Leader to come to our meeting on Friday."

Herald-Leader Editor Peter Baniak told the Kentucky Open Government Blog, “We’re pleased that the Kentucky League of Cities has decided to open the meeting because what the league does is of vital public interest to cities, their employees and citizens. We hope the league will continue to be transparent.”

While the league is not covered by the state Open Meetings Act, it appears to be covered by the Open Records Act, which applies to any entity that gets at least 25 percent of the money its spends in Kentucky from state or local authority. The league fulfilled the open-records requests of Herald-Leader reporter Linda Blackford.

Lovely wrote that Blackford's articles "portray an executive with a sense of entitlement to rewards that are beyond the reach of public-sector leaders in our state. None of my compensation would probably have been written about if the paper accepted the League's position that we are in a competitive insurance business and have generated revenues during my tenure on the order of private companies. The insurance program was offered as a replacement for private insurance companies which stopped offering coverage to cities in the late 1980s. We now compete with these companies for city insurance business. The CEOs of those private companies typically earn much more than I in compensation and benefits, work no harder than I do, and do the same kind of business travel for similar purposes." (Read more)

UPDATE, June 19: The KLC board voted today to create a committee to review policies and procedures. It suspended expenditures at Lexington’s Azur Restaurant, which is one-fifth owned by Lovely's husband, Bernard Lovely; suspended travel for spouses of the executive staff; and decided to replace the sport-utility BMW that is part of Lovely's compensation.

Open courtrooms help ensure fair trials

The following opinion piece has appeared in several Kentucky newspapers.

By Mike Farrell

The governor is on the witness list. The president of the state Senate may also be called to testify. One defendant, a former head of the state Transportation Cabinet, is accused of taking bribes while providing inside information to another defendant, a road contractor. Can anyone imagine a scenario in which the public has more interest, or more right, to know what is happening as the wheels of justice turn?

This is a public corruption case. If the defendants are guilty they have defrauded the taxpayers. The indictment alleged that the scheme between former Secretary William Nighbert and contractor Leonard Lawson resulted in Lawson winning state road contracts worth $130 million.

Despite the obvious stake the taxpayers of this state have in this federal court case and despite prior federal court rulings that courts must be open, a U.S. magistrate judge held a secret hearing on important motions excluding both the public and the media. He did so without issuing proper notice or publishing his reasons.

This is neither a confused area of the law nor an insignificant one. The Supreme Court of the United States settled this issue long ago. In 1980, the justices said open courts help ensure that prosecutors and judges don’t abuse their authority and that the public’s confidence in the court system is sustained. Open courts help protect the right of the defendants to a fair trial because people are watching.

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Chief Justice Warren Burger wrote. “When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case.”

In 1986, the Supreme Court ruled that the right to a public trial extended to preliminary hearings, in part because they have traditionally been open. The court cited the 1807 preliminary hearing for former Vice President Aaron Burr on treason charges, which was moved to a larger courtroom because of the crush of observers.

U.S. District Judge Danny Reeves overlooked all of that when he said the magistrate’s decision to close a hearing in the corruption case was justified because of the amount of pre-trial publicity. It is the court’s responsibility to protect the defendants’ Sixth Amendment right to a fair trial. But the Supreme Court has never said that should be accomplished while trampling the public’s right to open courtrooms. In fact, appeals courts have outlined alternatives so that hearings and trials are conducted in the open, allowing the public and the media access.

Defense attorneys complain often during a high-profile trial like this one that stories in newspapers about the case will make it difficult to seat a jury capable of meeting the Sixth Amendment’s standard of a fair trial. In response, Judge Reeves already has moved the trial from Frankfort to Covington, where much of the population does not work for the state government and is less likely to have read every story as intently as people who live in Central Kentucky.

While unsealing the transcript of the secret hearing, after attorneys for the Courier-Journal and the Herald-Leader objected, Judge Reeves chastised the media for keeping the public informed. "Everything that happens in this case ends up in the newspapers," Reeves said, according to The Courier-Journal. "There are certain things that don't need to be disclosed."

It is more than disappointing that a federal judge with a lifetime appointment shows such little respect for the role of a free press in a democratic society. Open courts are as important for public confidence in the judiciary as fair trials. Open courts help ensure fair trials. Federal judges and magistrates should understand the lessons the Supreme Court taught nearly 30 years ago.

Secrecy, the kind that occurred in this case, undermines both the First and Sixth amendments to the Constitution. Secrecy and democracy are enemies, and every judge should understand that.

Mike Farrell is the director of the Scripps Howard First Amendment Center, and an assistant professor in the School of Journalism and Telecommunications, at the University of Kentucky.

Mine-safety agency not living up to Obama's promises for transparency, Ky. lawyer says

The Mine Safety and Health Administration is getting heat from groups who claim the organization is withholding information that should be disclosed under the Freedom of Information Act.

OMB Watch reports that the secretive tactics of MSHA are not meeting the standards of a transparent government President Obama promised when his term began. In the past 25 years, Kentucky mine-safety attorney Tony Oppegard says, he has requested and received information from MSHA without issue. But, in October 2008, that openness stopped. Since then, Oppegard says MSHA has given him the runaround and cited several exemptions to the FOIA as reasons for withholding information, which he calls “utter rubbish.” He has denounced MSHA’s failure to disclose and reminded the agency's legal counsel of the Obama administration’s new FOIA policies.

In an article in Mine Safety and Health News, Oppegard wrote that more enforcement is needed to achieve transparency on the part of MSHA. “Miners can only hope – and trust – that when the new assistant secretary takes office, he will put a quick end to the agency’s blatant attempts to protect operators who have been charged with discrimination by miners,” he wrote. Obama has yet to name an assistant secretary of labor for coal-mine safety and health.

The subscription-only newsletter also reports that it has had difficulty extracting information from MSHA. In an editorial in the same issue, it says the agency’s secrecy is suspicious. "Regarding FOIA, MSHA is spewing red tape and accomplishing nothing, except alienating the American people – miners, their families, industry and the press." (Read more) –From The Rural Blog

Water board is a private entity, so it can bar members from meetings, attorney general says

A Rockcastle County water system can bar members from its meetings because it isn't a public agency, Attorney General Jack Conway said in an open meetings decision last week.

"Because Eastern Rockcastle Water Association, Inc. is a private, nonstock, nonprofit corporation organized under KRS Chapter 273, ERWA cannot properly be characterized as a 'public agency' within the meaning of KRS 61.805(2)," Conway said. "Accordingly, ERWA is not required to comply with provisions of the Open Meetings Act." It cited a 1978 attorney general's opinion.

The latest opinion, which has the force of law, was requested by Barbara Castleberry, who said ERWA President David Ballinger prevented her and four other customer-members of the association from attending its monthly board meetings at a county-owned facility. “A notice that limited attendance to Board Members, Board Attorney, General Manager, and Auditor was posted on the meeting room door,” Castleberry wrote. When she and the others tried to attend the meeting, “Mr. Ballinger called the Office of the Rockcastle County Sheriff, who sent two deputies to escort the group from the meeting room.”

Catstleberry argued that ERWA is referred to as "a public governmental agency" in an agreement it made with the Western Rockcastle Water Association. That was a reasonable argument, Conway said, but "none of that language is determinative on the facts presented. ... The Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act."

In a footnote, Conway noted that a private, nonprofit corporation may be a public agency for purposes of the Open Records Act even if not covered by the Open Meetings Act. The Open Records Act applies to entities that get at least 25 percent of the funds they expend in the Commonwealth from state or local authorities. The decision is No. 09-OMD-81.


In an Open Records Decision, 09-ORD-079, Conway said the Cabinet for Health and Family Services did not violate the law by not providing copies of copyrighted material used by the Department for Medicaid Services in making determinations of clinical appropriateness.

Latest open records decisions

The Kentucky attorney general has issued two more open records decisions:

1. 09-ORD-071 (Mercer County)

Decision adopting 08-ORD-044; Northpoint Training Center did not violate the Open Recods Act in declining to provide copies to requester because his inmate account contained insufficient funds to pay the reproduction charges. In accordance with KRS 61.874(1), Friend v. Rees, Ky. App. 696 S.W. 2d 125 (1985), and prior decisions of this office, the denial is affirmed.

2. 09-ORD-072 (Campbell County)

Decision adopting 08-ORD-6; because records in the custody of the circuit court clerks are properly characterized as court records, which are not governed by the Open Records Act, rather than public records within the meaning of KRS 61.870(2), the attorney general has long recognized that circuit court clerks are not subject to the provisions of the Open Records Act. Consequently, the Campbell Circuit Court Clerk did not violate the act by failing to respond upon receipt of the request as would otherwise be required by KRS 61.880(1).

Full texts of the decisions can be found via the Links of Interest below.

Lawyer unworried by court open meetings ruling

First Amendment lawyer Jon Fleischaker, architect of Kentucky's open records law, says he's unworried by a federal appeals court ruling that the Texas Open Meetings law could be unconstitutional.

"Perhaps I'm foolish," Fleischaker said in an email, "but I am not bothered. Efforts to use this case will spread, but I do not think the court's reasoning or the result is logical or will be adopted."

A panel of The Fifth Circuit U.S. Court of Appeals in New Orleans ruled Monday in Rangra v. Brown that elected officials have a First Amendment right to talk to each other in private despite the Texas Open Meetings law. It said the Texas law would have to pass stringent constitutional muster and ordered the original trial court to review the case, which involved two city council members exchanging emails on whether to call a council meeting on a public contract issue. The lower court had said the email exchange violated the state law.

The Reporter's Committee for Freedom of the Press has urged the full appeals court to rehear the case, fearing the decision could bring constitutional challenges to open meetings laws across the country

"If this decision is allowed to stand, local elected officials throughout the Fifth Circuit could violate the open meetings laws in their states with impunity," said Lucy A. Dalglish, executive director of the Reporters Committee. "Such a scenario would make a mockery of open government in those states."

A more detailed report on the case can be found at www.rcfp.org/newsitems/index.php?i=10747

Open records decisions issued by attorney general

The following Open Records Decisions were issued by the Office of the Attorney General on April 24, 2009:
1. 09-ORD-067 (Jefferson County)
Jefferson County Division of Probation and Parole properly denied request for information obtained by parole officer, and investigative reports generated by her in discharging her official duties, on the basis of KRS 439.510, incorporated into the Open Records Act by operation of KRS 61.878(1)(l). Although the division admittedly violated KRS 197.025(7) in failing to issue a written response within five business days, the agency's ultimate disposition of the request was entirely correct.

2. 09-ORD-068 (Marion County)
Marion Adjustment Center properly relied upon KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying inmate's request as the record(s) being sought do not contain a specific reference to him.

3. 09-ORD-069 (Mercer County)
Northpoint Training Center did not violate the Open Records Act in declining to provide copies to requester without prepayment of reproduction charges. In accordance with KRS 61.874(1) and applicable precedent, the denial is affirmed.

4. 09-ORD-070 (Oldham County)
Roederer Correctional Complex did not violate Open Records Act in failing to respond to a request that was not successfully transmitted to it, and otherwise properly disposed of issues on appeal by furnishing requester with the only existing record responsive to his request.

For full texts of the decisions, see Links of Interest below.

More Attorney General Opinions issued

The following open records decisions were issued by the Office of the Attorney General on April 14-17:

1. 09-ORD-063 (Franklin County)
Kentucky State Police properly relied on KRS 439.510, incorporated into the Open Records Act by KRS 61.878(1)(l), in denying a request for sex offender registration forms.

2. 09-ORD-064 (Wayne County)
Monticello Banking Co. is not a public agency for open records purposes, and its records are not subject to the Open Records Act. It therefore did not violate the act by denying a request for a decedent's loan records.

3. 09-ORD-065 (Franklin County)
The Kentucky Labor Cabinet properly denied access to requested file as the subject investigation is not complete nor has the agency taken any final action. Until such time as the Cabinet adopts the notes, drafts, and correspondence with private individuals, or the recommendations and memoranda in which opinions are expressed or policies formulated as the basis of a final action, those documents retain their preliminary status under KRS 61.878(1)(i) and (j), respectively. Cabinet also properly declined, alternatively, to honor "standing request."

4. 09-ORD-066 (Jefferson County)
University of Louisville did not violate Open Records Act in failing to respond to requests that were unsuccessfully transmitted to a nonexistent email account. Because requests did not reach the university, no error can be assigned to it under KRS 61.880(1).

Latest open records decisions

The following open records decisions were issued by the Office of the Attorney General on April 7:

1. 09-ORD-061 (Floyd County)
Decision adopting 08-ORD-084 and holding that private ambulance service is not a public agency for open records purposes even though it derives some state funding from Medicaid reimbursement.

2. 09-ORD-062 (Kenton County)
Decision adopting 01-ORD-136 and 08-ORD-171; Elsmere Police Department subverted the intent of the Open Records Act within the meaning of KRS 61.880(4) by charging 15 cents per page for copies of public records. Unless the agency can substantiate that its actual cost of reproduction is greater than 10 cents per page, imposition of any fee in excess of that amount is not authorized under Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) and prior decisions of this office.

For full texts of the decisions, see link below.

Attorney general issues open records decisions

The following opinion and open records/meetings decisions were issued by the Office of the Attorney General March 31-April 3:

1. OAG 09-003
In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2009 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, June 25, 2009, since 90 full days will then have passed after final adjournment on March 26, 2009.

2. 09-OMD-056 (Warren County)
Three employees of Bowling Green Municipal Utilities acting within the scope of their employment were not constituted as a “committee” that was “established, created, and controlled” by a public agency, the Open Meetings Act does not apply.
KRS 61.805(2)(g) does not apply.

3. 09-ORD-057 (Mercer County)
Northpoint Training Center did not violate Open Records Act by not providing copies of policies and procedures to an inmate when the documents did not contain a specific reference to him, as provided in KRS 197.025A(2), or addressed security and control of inmates and facilities, as provided in KRS 197.025(6).

4. 09-ORD-058 (Franklin County)
Education and Workforce Development Cabinet violated KRS 61.880(1) in failing to issue a timely written response to open records request. Cabinet failed to meet its statutory burden of proof relative to invocation of KRS 61.872(6) and 3 of 7 records requests. Cabinet honored two of the requests and properly denied the remaining requests.

5. 09-ORD-059 (Franklin County)
Cabinet for Health and Family Services cannot produce nonexistent records for inspection or copying nor does it have to "prove a negative" under Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.2d 333, 340-341 (2005). In accordance with 09-ORD-022, agency's denial as to six categories of records withheld on the basis of 45 CFR § 2.3, incorporated into the Act by operation of KRS 61.878(1)(k), is affirmed. CHFS properly redacted information from certain documents per KRS 61.878(1)(a) and KRS 620.050(11). With exception of procedural violations, agency complied with the Act.

6. 09-ORD-060 (Franklin County)
The Office of the Governor violated KRS 61.880(1) in failing to respond to three separate requests for records relating to an efficiency study. Records belatedly disclosed to requester related to a spending analysis report, and Governor's Office maintained that no additional responsive records existed because no efficiency study was conducted.

New attorney general's opinions on open records cases issued

The following Open Records Decisions were issued by the Office of the Attorney General March 23-26:

1. 09-ORD-052 (Woodford County)
Kentucky Community and Technical College System properly withheld copies of exams containing questions that might be reused, as well as interview notes made during investigation of a student grievance, since the notes had not been adopted as the basis of final agency action. The notes, however, might be accessible under FERPA.

2. 09-ORD-053 (Franklin County)
Department of Public Advocacy did not substantively violate the Open Records Act when it did not possess a copy of the requested toxicology report.

3. 09-ORD-054 (Harlan County)
City of Cumberland subverted the intent of the Open Records Act by disclaiming custody and control of employee timesheets while those timesheets were "boxed up for the auditor," and, consequently, failing to afford requester timely access to those records.

4. 09-ORD-055 (Woodford County)
Having reviewed the legal invoices in dispute, this office finds that Midway was justified in redacting information withheld on the basis of the attorney-client privilege codified at KRE 503, incorporated into the Act by operation of KRS 61.878(1)(l), as the remaining material reflects the general nature of the services provided and the associated fees. The city is not required to produce nonexistent records or "prove a negative" in order to refute a claim that certain records exist nor is City required to comply with a request for information, or compile a list or create a record for the purpose of satisfying a request.

2009 legislature does ‘very little damage’ on news organizations' issues

The 2009 session of the Kentucky legislature did “very little damage” on issues of interest to the state’s newspapers and broadcast media, according to David Thompson, executive director of the Kentucky Press Association.

Thompson will report to KPA members that the General Assembly passed one bill that KPA lobbied against during the session that concludes March 27. That bill imposes a 6 percent sales tax on website subscriptions. However, that will affect only about 10 percent of KPA members, he said, because most newspaper websites are free. Gov. Steve Beshear has signed the legislation.

“You win some, lose some and some get shut out,” Thompson said in an interview with the Kentucky Open Government Blog.

He noted that several bills that both KPA and Kentucky Broadcasters Association were backing did not get passed this session, but most will be brought up again in 2010. That includes a bill to set access rules for journalists at polling sites on election day. Though journalists have a constitutional right to such access, Thompson said, under current vague privacy laws election officials sometimes block them from the voting room or prevent pictures from being taken. The bill failed not because of opposition, but because of time constraints, Thompson said.

One bill that the news media organizations opposed was successfully blocked – a proposal to forbid broadcast of 911 call recordings. “But it will be back again next year and every year,” Thompson said. The bill’s sponsor, Sen. John Schickel, has also said he will keep trying.

“They did very little damage,” Thompson summed up. “And that’s our approach – more defense than offense.”

Federal government says it will be more open

U.S. Attorney General Eric Holder has ordered all federal agencies to be more open in the release of information, reversing Bush-era policies and following the directive of President Barack Obama.

Holder issued a memo to agency heads citing the administration’s “commitment to open government,” and telling them to administer the Freedom of Information Act with a “clear presumption: In the face of doubt, openness prevails.”

“An agency should not withhold information simply because it may do so legally,” Holder wrote. “I strongly encourage agencies to make discretionary disclosures of information.” He added that if an agency decides it cannot make full disclosure of requested information, it must consider making partial disclosure.

Holder rescinded rules set by the Bush administration that arguably encouraged the withholding of information. He substituted rules against withholding unless there is foreseeable harm or disclosure is prohibited by law. He also ordered that the new rules be applied to existing FOIA requests, of which there is a backlog.

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public's ability to access information in a timely manner,” Holder said. “The American people have the right to information about their government's activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The memo was issued during Sunshine Week, the annual celebration of open government and freedom of information laws. For the full text, click here.

AG says city council broke open-meetings law

The following decisions on open records and open meetings were issued by the Office of the Attorney General March 16-20:

09-OMD-051 (Harlan County)
The Cumberland City Council violated the procedural requirements of the Open Meetings Act by failing to respond to written complaint alleging a Jan. 30 secret meeting of a quorum of its members or a series of less than quorum meetings where the members attending collectively constituted a quorum. If a quorum was present at a single, non-public meeting where public business was discussed, the council violated KRS 61.810(1). If council members collectively numbering a quorum attended a series of less than quorum meetings, the members' actions offended two of the three elements of KRS 61.810(2).

09-ORD-049 (Franklin County)
The state Personnel Cabinet’s original response to a request for designated information fields, including employee identification numbers, of all current Executive Branch employees, was procedurally and substantively deficient. On appeal, the Cabinet properly retreated from its position as it pertained to non-Merit System employees, and, upon submission of request for additional information, demonstrated a heightened privacy interest in employee ID numbers that warranted its invocation of KRS 61.878(1)(a) to support nondisclosure of those numbers.

09-ORD-050 (Franklin County)
The state Labor Cabinet improperly relied on KRS 61.878(1)(c)1 to withhold a private employer's records, because there was no evidence of proprietary or confidential information or unfair competitive advantage.

Open-meetings and open-records decisions have the force of law but can be appealed to circuit court. They are designated as OMDs and ORDs. Other opinions of the attorney general are designated as OAGs. For full texts of the decisions, see the Link of Interest at the bottom of the KOG Blog.

Electronic campaign filing bill may make it yet

A bill that would require statewide candidates to file campaign finance reports electronically is "not completely dead," and proponents are still hoping the House will take it up during the final two days of the legislative session.

Assistant Secretary of State Les Fugate told the Kentucky Open Government Blog that while House leaders had indicated they had no problem with Senate Bill 62, they had first told the Senate that there were too many amendments attached to get the bill voted on this session. But Fugate said the Senate then stripped off the amendments and sent it back as House Bill 325, so that all that it needs is House concurrence.

"We still have hope," Fugate said. Legislators will reconvene on March 26 for two days to complete their work for this session. House Speaker Greg Stumbo said this week that the House might open the agenda to include concurrence with Senate amendments to House bills.

The Lexington Herald-Leader, in an editorial Thursday, called for passage of the bill. "It's time to do better," the paper said. It noted that, except for the lack of electronic filing, Kentucky had been given "decent marks" by the Campaign Disclosure Project, which monitors and grades state governments on transparency. Similar bills have been passed both House and Senate in previous years, but not in the same session.

Court system heading toward more openness, perhaps even in juvenile courts

Leaders of Kentucky's court system are discussing major rules changes to make the courts more transparent, including proposals to make juvenile court more open.

The move is part of a broad plan that could put all court expenditures on line, provide better Internet access to court records and form a citizens’ commission to give the Supreme Court advice on open-courts matters, said Jason Nemes, outgoing head of the Administrative Office of the Courts. The changes would be up to the Kentucky Supreme Court.

Nemes said Chief Justice John Minton Jr. has asked judicial experts to look again at a bill introduced in the 2008 legislative session that would have given judges more discretion in opening child-protection proceedings, as well as other changes to make juvenile courts more transparent. That could include recommendations on opening more juvenile records and giving judges more discretion to open juvenile proceedings.

"There's lots of different ways to do it," Nemes said, noting that some states treat proceedings and records differently.

The Kentucky Press Association unsuccessfully sued in federal court in 2004 to open juvenile courts. The U.S. Court of Appeals for the Sixth Circuit ruled in 2006 that state law already allows judges to grant access to "interested parties" and that judges could admit journalists as interested parties.

A Supreme Court rule detailing how judges could do that would be "a giant step," said John Nelson of Danville, executive editor of The Advocate-Messenger and KPA president when the suit was filed. "Courts have assumed that part of the statute means that they can’t let anybody in except the parties who are affected," he said.

Nelson said the General Assembly took "a baby step" last year in opening docket information on juveniles charged with violent crimes and that an additional small step could be further opening of juvenile dockets.

The Supreme Court ruled in 1978, two years after the Open Records Act was passed, that it did not apply to court records because the legislative branch could not tell the judicial branch what to do. Most court records are generally open as a matter of policy, but Minton wants the court to change the rules as part of what his chief of staff, Katie Quitter, called “a general movement in state government toward transparency.”

Quitter said Minton had been persuaded in part by similar moves in the governor’s office and by Nemes, who will leave his job at the courts' administrative arm on April 3.

“I’m a huge proponent of openness in government,” Nemes said in an interview. He said his office is working on the draft rules, which will be submitted to the Judicial Council, a panel of judges, lawyers and legislators who advise the Supreme Court.

Minton said in an interview that he recently reactivated the council, and "I just thought it would be a good forum in which to vet the whole issue of openness, which I think needs to happen." He said any changes are up to the seven members of the Supreme Court, but "In order for us to be credible, for people to have a basis to trust us, we've got to be more open."

The new rules could apply to Supreme Court agencies, including the Kentucky Bar Association, the Board of Bar Examiners and the Judicial Conduct Commission. For examples of how access to those records is limited, see this story by Andrew Wolfson in The Courier-Journal.

Two press-freedom bills fail to pass

Two press-freedom bills are among those being tossed aside with just two limited-agenda days left in this year's regular legislative session. But the Kentucky Press Association vows to revive both next time around.

David Thompson, KPA executive director, said in a message to the group's members that SB 130, which would ensure access to voting places for journalists and photographers, had been agreed on by Secretary of State Trey Grayson, the State Board of Elections, the Kentucky Broadcasters Association and KPA. It passed out of the Senate State and Local Government Committee, then "politics showed up" in the Senate Republican caucus, Thompson reported. The bill wound up in another committee, where it remains.

House Bill 43 would have guaranteed freedom of speech and press for high school student journalists, with limitations, and would have immunized school boards from criminal or civil liability for student publications. But Thompson said it "didn't come close to getting a hearing" in the House Education Committee.

Thompson promised that KPA will lobby for both bills in 2010. The legislature may have a special session later this year but it is expected to be limited to budget-related issues. It returns next week to reconsider any vetoed bills and perhaps some held up by House-Senate disagreement.

New attorney general decisions on records

The following Open Records Decisions were issued by the Office of the Attorney General March 10-12:

1. 09-ORD-041 (Jefferson County)
Because the Louisville and Jefferson County Metropolitan Sewer District Board of Directors is the final decision-maker on all grievances that progress to Step III of the internal "Grievance Procedure," the district has not taken any final action until the board renders a decision; accordingly, the investigatory records in dispute retain their preliminary status and the sewer district properly denied the request on the bases of KRS 61.878(1)(i) and (j).

2. 09-ORD-042 (Jefferson County)
Because AT&T Mobility Corp. does not derive at least 25 percent of its funds expended by it in the Commonwealth from state or local funds, it is not a “public agency” within the meaning of KRS 61.870(1) and is not subject to the Open Records Act. Accordingly, it is not required either to release its records or to adhere to procedural requirements in response to a request for its records under the Act.

3. 09-ORD-043 (Mercer County)
Decision adopting 03-ORD-073 and 04-ORD-076; Northpoint Training Center properly relied on KRS 197.025(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying inmate's request for a copy of another inmate's grievance because the record does not contain a "specific reference" to him.

4. 09-ORD-044 (Morgan County)
Eastern Kentucky Correctional Complex did not violate Open Records Act when incomplete “move sheets” were not retained by the agency and therefore no longer existed. Such documents could be fairly characterized as “general correspondence” for records retention purposes. Department had discretion to deny inspection of such documents as a security threat under KRS 197.025(1).

5. 09-ORD-045 (Ohio County)
Decision adopting 98-ORD-6 and holding that because circuit court clerk is not bound by the provisions of the Open Records Act, she cannot be said to have violated the act in the disposition of records request.

6. 09-ORD-046 (Campbell County)
Decision adopting 98-ORD-6 and finding no error in circuit court clerk's disposition of records request.

7. 09-ORD-047 (Mercer County)
Northpoint Training Center properly relied upon KRS 197.025(1) and 197.025(2) in denying a request for a Security Activity Log as document did not contain a specific reference to the inmate and disclosure could pose a legitimate security threat.

8. 09-ORD-048 (Kenton County)
Decision adopting 04-ORD-123 and holding that Elsmere Fire Protection District subverted the intent of the Open Records Act, short of denial of inspection, by extending invitation to requester to conduct inspection of records in the offices of the agency's contract attorney rather than in suitable facilities located on agency premises.

For the full text of the decisions, click here.