AG slaps Jefferson school board, KCTCS for secrecy surrounding executive evaluations

The Jefferson County Board of Education can't hide from "unwanted or unpleasant public input" in evaluating Superintendent Sheldon Berman, Kentucky Attorney General Jack Conway ruled Tuesday.

The ruling said the board violated the state's open-meetings law when it made its annual evaluation of Berman in a closed session July 29, despite a 2008 attorney general's opinion that such evaluations must be made publicly unless they might lead to discipline or dismissal. Berman's evaluation was positive, though the board urged him to improve his interaction with the board, the community and parents.

The decision came in response to a complaint by The Courier-Journal, which disclosed the ruling in a story today. Board chair Debbie Wesslund told the Louisville newspaper that she disagreed with the opinion, and would consult with the board and lawyers in deciding whether to appeal. The 2008 decision, which involved a similar case in Spencer County, is under appeal in circuit court.

In a similar case, Conway issued a ruling Tuesday that the Kentucky Community & Technical College System violated the Open Records Act when it refused to give its evaluation of former president Dr. Paula Gastenwald to the Owensboro Messenger-Inquirer. Gastenwald was removed as president by the KCTCS board earlier this year. The attorney general said the public's interest in the case outweighed any privacy interst of Gastenwald. "The public is entitled to know why Dr. Gastenwald was removed," the opinion said.

Full texts of attorney general opinions in Open Meetings/Open Records cases can be found through Links of Interest at the bottom of the KOG Blog.

AG decision opens up documents showing county magistrates spending in their districts

Documents showing county magistrates how money has been spent in their districts are public records, the attorney general's office said in an open-records decision last week. The decision pulls back the curtain on a common practice in county governments, divvying up funds for roads on the basis of political representation. Sometimes, actual needs of the districts take a back seat. It could also reveal a perhaps less common but arguably illegal practice, giving magistrates authority to spend money in their districts. They are supposed to be legislators on the Fiscal Court, with no executive power.

Richard Shivel of Russell County asked in writing to see "records related to monies spent by individual Magistrates in their respective districts, and any monies given or set aside" for individual districts or magistrates, including inspection of the folders that magistrates keep of such documents. The county attorney said the folders were personal and could be requested from the individual magistrates at a Fiscal Court meeting. When Shivel appealed to the attorney general, the county judge-executive said the folders are kept in his office, but contained only copies of other documents that could be obtained from the office. Citing a 1991 opinion, the decision said that was no excuse.

"Mr. Shivel should still have access to the folders in order to know which particular documents have been set aside as pertaining to each magistrate’s district," said the decision, written by Assistant Attorney General Jim Herrick and approved by Attorney General Jack Conway. It has the force of law but the county can appeal by filing suit in Russell Circuit Court.

Attorney general's decision provides useful reminders about open-records law

A new attorney general's opinion contains some useful reminders about what the state Open Records Act does and what it doesn't do. The opinion, in the case of a Goshen man's demand for information from the North Oldham Fire Protection District, found partially in favor of the complainant, Peter Neidhardt, and partially in favor of the district, treading a careful route among state and federal laws and regulations and the definition of records, information and research.

Neidhardt had demanded minutes from unspecified meetings of the district board about volunteer firefighters' benefits and reimbursements. The decision said the district failed to provide "timely access," by not meeting the three-day deadline for a reply, but there was no statutory requirement for the district to provide information, create a record, perform research or compile a list.

The decision said the purpose of the Open Records Act "is not to provide information, but to provide access to public records." Therefore, "requests for information, as opposed to requests for specifically described public records, need not be honored." In the words of the office, what the public gets is what the public agency has and in the format in which the agency has it. "One desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled."

Further, the attorney general said, the district was not required to make a written reply to Neidhardt, and since he resided within the county, could require him to go to the district's office in working hours to look through the records himself.

For a complete text of the opinion, and several others issued recently, see Links of Interest at the bottom of the blog.

Open Government Report 2009: Records and meetings laws relatively good, but family courts worry advocates of openness

Kentuckians can feel confident their government is operating with a relatively high degree of transparency and openness, except for “serious problems” in the juvenile and family court system, which includes juvenile proceedings.

That's the news in the 2009 Kentucky Open Government Report, published by the Scripps Howard First Amendment Center and Institute for Rural Journalism and Community Issues at the University of Kentucky, which publish this blog.

The relatively good state of open-records law was illustrated last week by The Courier-Journal's publication of a story and online database about donations to the University of Louisville Foundation. The story was made possible by a state Supreme Court ruling that ended a long legal battle between the university and the newspaper.

On the other hand, family courts and the Cabinet for Health and Family Services combine to create the biggest black hole in Kentucky government, says Jon Fleischaker, a Louisville lawyer who wrote Kentucky’s open-government laws and remains the state’s foremost First Amendment attorney.

For the full report in PDF format, click here; to read it from a Web page with links, click here.

Attorney general tells Madison County to release more records about antenna tower

Madison County officials who invoked the threat of terrorism and protection of a vendor’s proprietary information to avoid releasing records were wrong, and failed to prove their case on either issue, Kentucky Attorney General Jack Conway ruled this week.

Conway issued the decision, which has the force of law, in a case involving a request for public records on the construction of a 300-foot antenna tower on county land near a residential subdivision. The county fiscal court and emergency management office had released some of the records requested by Thomas Vergamini, but refused to release others, which they claimed included information marked “proprietary and confidential” by the unidentified vendor. The two offices also stated they would “not provide any records that have a reasonable likelihood of threatening public safety by exposing vulnerability in this emergency communication system: Whether it is in preventing, protecting against, mitigating, or responding to a terrorist incident or disaster.”

Conway ruled that the officials could not claim exemption from the Open Records Act with a simple statement, but had to show a “real threat” of harm to the vendor, and to the public. They failed to do so, Conway said in finding for Vergamnini. The officials now have to release the records or appeal to circuit court.

The opinion was one of several released recently by the attorney general’s office. Others included:

OAG 09-005: Former employees of the Justice and Public Safety Cabinet, including the Office of the State Medical Examiner and of the Kentucky State Police Laboratory, are not entitled under Kentucky law to hourly compensation when subpoenaed to testify in a case arising from their duties while employed by the Commonwealth.

09-ORD-098: Franklin County School District failed to establish that an open-records request was inadequate and placed an unreasonable burden on the district. As described, records identified in district's admittedly limited search were excluded from public inspection by KRS 61.878(1)(i), (j), (k), and (l), but it is incumbent on the district to conduct a broader search of its paper and electronic files to locate any remaining records.

09-ORD-099: Decision adopting 07-ORD-188 and 07-ORD-190 regarding the statutory obligations of a public agency upon receipt of a request for nonexistent records or those which the agency does not possess; a public agency is not required to produce nonexistent records, nor must a public agency “prove a negative” in order to refute a claim that certain records exist. In the absence of a prima facie showing that additional records exist in the possession of the Johnson County School District aside from those already provided, its disposition of the request is affirmed in accordance with Bowling v. Lexington-Fayette Urban County Government, Ky. 172 S.W.3d 333, 340-41 (2005), and prior decisions of this office.

09-ORD-101: Decision adopting 07-ORD-188 and holding that in the absence of a prima facie showing by requester that responsive records exist that have not been furnished, Transportation Cabinet properly disposed of request by providing requester with all such records in its custody and notifying him that no additional records exist. Attorney General's office is not the proper forum for dispute resolution relating to discrepancies in records produced for inspection.

For the full text of these opinions, see Links of Interest at the bottom of the KOG Blog.

League of Cities releasing records again

The Kentucky League of Cities has returned to its former policy of fulfilling open-records requests from the Lexington Herald-Leader, it announced today. It reserved the right to withhold records that might hurt the insurance business that has turned it from a relatively modest lobbying group to a financial institution.

“While we are withdrawing our opposition to certain requests, we will continue to protect our proprietary interests as we compete in the marketplace every day,” Mayfield Mayor Arthur Byrn, chair of the Kentucky League of Cities Insurance Services board, said in a press release from the league. Last week, the league said it would stop releasing records because it didn't consider itself to be a public agency. Under the state open-records law, entities that get 25 percent or more of the revenue they spend in Kentucky are public agencies.

The league indicated that last week's decision was a public-relations blunder. “Our intent to protect our insurance service programs has been greatly misunderstood to the detriment of the reputation of our organization,” KLC General Counsel Temple Juett said in the release. “Our intent has and always will be to protect the proprietary nature of our business – in particular our insurance services – which were founded in the late '80s when cities could not obtain insurance anywhere and for any price.”

After the Herald-Leader published stories last month about the salaries and expenses of top league executives, it asked the league for records of payments to law firms. That prompted the policy change that was reversed today. For the league's release, click here. For more information, see the item below.

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.”