Saying it would not overrule prison officials in judging whether releasing some records would pose a security threat, the state attorney general's office has ruled in favor of the Lee Adjustment Center, a medium-security facility operated by Corrections Corp. of America under contract with the state Department of Corrections, in a dispute with an inmate. The decision, 09-ORD-152, was one of two issued this week by the office.
In the other, 09-ORD-151, it said the Russell County Board of Education properly withheld education records under federal and state education privacy laws where applicant had not provided legal certification that he was the father of the pupils, although the board's initial response procedurally violated the law by not identifying the custodian of certain records.
For full texts of the ruling, see Links of Interest at the bottom of the KOG Blog.
Tuesday, September 22, 2009
National security issues snag shield-law bill
Questions about dealing with leaks of national-security information are holding up passage of a federal shield law for journalists, Walter Pincus reports for The Washington Post. The Justice Department wants to do away with the proposed "balancing test" in which judges would weigh the need to compel reporters to disclose sources against the public interest of revealing the information, in favor of a plan that would allow the department to subpoena reporters after convincing a judge that release of information could harm national security. For a Rural Blog item with a link to the story, go to http://irjci.blogspot.com/.
Friday, September 18, 2009
Journalists attending Sunshine Seminar today
Fifteen journalists gathered in Morehead this morning for the third Sunshine Seminar sponsored by the Kentucky Press Association, the Scripps Howard First Amendment Center and the Institute for Rural Journalism and Community Issues. The first presentation was given by Ashley Pack, above, partner in the Dinsmore & Shohl law firm and KPA attorney-lobbyist. The next speaker was Amye Bensenhaver, the assistant attorney general who handles open-government issues. This afternoon, Carrie Stambaugh of The Independent in Ashland will tell open-government war stories and Al Cross of the Institute will discuss using campaign-finance records and what sort of public records newspapers should publish. After Pack noted that the legislative policy of the Open Records Act calls for it to be "strictly construed, even though such examination may cause inconvenience or embarassment to public officials or others," Cross said community journalists may be reluctant to cause discomfort or inconvenience to local officials they know and like, they "must put those personal relationships aside" and play the public-service role that news ouutlets and journalists are supposed to play.
Monday, September 14, 2009
Kentucky New Era wins open-records victory, follows up with story on health departments
The Rural Blog reports today on an open-records victory by the Kentucky New Era in Hopkinsville that resulted in a weekend story questioning the performance of health departments in southwestern Kentucky. For the full blog item and a link to the story, go here.
AG reiterates: Public officials are not required to create records that do not exist
The Kentucky attorney general's office released eight decisions today on open-records and open-meetings issues. Several dealt with requests for records that officials said did not exist; decisions reaffirmed past decisions saying records don't have to be created to fulfill a request. A brief summary of the six most significant decisions follows. Full text can be found via Links of Interest at the bottom of the KOG Blog.
09-ORD-143
Although Trigg County Emergency Services mischaracterized 911 tape and dispatch log entries relating to triple homicide as Kentucky State Police records, because they were requested and utilized by KSP in its investigation of the crime, it ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at KSP's request.
09-ORD-144
McCreary County sheriff violated the Open Records Act by failing to respond in writing to a request and failing without explanation to provide any records about wrecker service in response to some portions of the request.
09-ORD-145
Neither the McCreary County judge-executive nor the McCreary County 911 Emergency Dispatch Center is required to produce nonexistent records about wrecker service or "prove a negative" in order to refute a claim that a certain records exist under the rule, nor must either agency create a record or compile a list in order to honor the subject requests; however, the response provided on behalf of the agencies violated the Act insofar as the judge-executive failed to affirmatively indicate whether additional responsive documents exist.
09-ORD-148
Office of the Governor did not violate the Open Records Act when it did not possess records responsive to the request and provided what it did possess. Any funds received for copies in excess of 10 cents per page should have been returned.
09-ORD-149
Cabinet for Health and Family Services properly withheld records relating to a child fatality pursuant to KRS 61.878(1)(l), incorporating confidentiality statutes KRS 194A.060 and KRS 620.050.
09-ORD-150
Pulaski County judge-executive is not expected to produce nonexistent reprimands nor must he "prove a negative" in order to refute a claim that such records exist in a specific personnel file; however, he violated KRS 61.880(1) in failing to affirmatively indicate whether any responsive complaints or commendations exist and in failing to cite the statutory exception relied upon as the basis for denying access to the requested job performance evaluation. The evaluation was properly withheld on the basis of KRS 61.878(1)(a), given the absence of any specific facts to justify disclosure.
09-ORD-143
Although Trigg County Emergency Services mischaracterized 911 tape and dispatch log entries relating to triple homicide as Kentucky State Police records, because they were requested and utilized by KSP in its investigation of the crime, it ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at KSP's request.
09-ORD-144
McCreary County sheriff violated the Open Records Act by failing to respond in writing to a request and failing without explanation to provide any records about wrecker service in response to some portions of the request.
09-ORD-145
Neither the McCreary County judge-executive nor the McCreary County 911 Emergency Dispatch Center is required to produce nonexistent records about wrecker service or "prove a negative" in order to refute a claim that a certain records exist under the rule, nor must either agency create a record or compile a list in order to honor the subject requests; however, the response provided on behalf of the agencies violated the Act insofar as the judge-executive failed to affirmatively indicate whether additional responsive documents exist.
09-ORD-148
Office of the Governor did not violate the Open Records Act when it did not possess records responsive to the request and provided what it did possess. Any funds received for copies in excess of 10 cents per page should have been returned.
09-ORD-149
Cabinet for Health and Family Services properly withheld records relating to a child fatality pursuant to KRS 61.878(1)(l), incorporating confidentiality statutes KRS 194A.060 and KRS 620.050.
09-ORD-150
Pulaski County judge-executive is not expected to produce nonexistent reprimands nor must he "prove a negative" in order to refute a claim that such records exist in a specific personnel file; however, he violated KRS 61.880(1) in failing to affirmatively indicate whether any responsive complaints or commendations exist and in failing to cite the statutory exception relied upon as the basis for denying access to the requested job performance evaluation. The evaluation was properly withheld on the basis of KRS 61.878(1)(a), given the absence of any specific facts to justify disclosure.
Friday, September 11, 2009
Challenge to Texas open-meetings law dismissed
The Fifth Circuit U.S. Court of Appeals has dismissed a case in which two city council members in Texas claimed the state's open-meetings law violated their right to free speech.
The full court, in a one-sentence ruling Thursday, said the case, Rangra vs. Brown, was moot because both Alpine City Council members who filed it four years ago have left the council and are no longer in a position to be injured by the law.
The two had been threatened with prosecution by the Texas attorney general for discussing city business by e-mail. They argued that the open-meetings law's requirement that they not discuss public business in private violated their constitutional right to free speech. A federal judge had ruled against them, but a three-member panel of the Court of Appeals overturned that ruling. The full 17-member appeals court agreed to hear the appeal, a rare event. The vote was 16-1; the dissenter criticized the others for taking the easy way out.
Proponents of government transparency had feared that if the appeals court ruled in favor of the two councilmen, open-meetings laws in other states might come under attack. Other experts, including Jon Fleischaker of Louisville, the First Amendment lawyer who largely drafted Kentucky's law, had said the three-judge panel's ruling was illogical and would never stand.
The full court, in a one-sentence ruling Thursday, said the case, Rangra vs. Brown, was moot because both Alpine City Council members who filed it four years ago have left the council and are no longer in a position to be injured by the law.
The two had been threatened with prosecution by the Texas attorney general for discussing city business by e-mail. They argued that the open-meetings law's requirement that they not discuss public business in private violated their constitutional right to free speech. A federal judge had ruled against them, but a three-member panel of the Court of Appeals overturned that ruling. The full 17-member appeals court agreed to hear the appeal, a rare event. The vote was 16-1; the dissenter criticized the others for taking the easy way out.
Proponents of government transparency had feared that if the appeals court ruled in favor of the two councilmen, open-meetings laws in other states might come under attack. Other experts, including Jon Fleischaker of Louisville, the First Amendment lawyer who largely drafted Kentucky's law, had said the three-judge panel's ruling was illogical and would never stand.
Thursday, September 10, 2009
Bill would apply records law to officials' groups
A bill making any organization whose employees get state retirement benefits will be subject to the Kentucky Open Records Act has been prefiled by Rep. Arnold Simpson, D-Covington, and the Lexingon Herald-Leader reported Thursday it seems likely to pass when the legislature convenes next year.
The newspaper said the bill stems from its recent investigations into lavish spending at the Kentucky League of Cities and the Kentucky Association of Counties that led to the resignations of the leaders of both organizations. Although both organizations had surrendered records to the paper, they had claimed they were not subject to the records law. Each agency receives more than 25 percent of its budgets from public funds, the law's threshold for public inspection. Employees of both agencies receive state retirement benefits.
Simpson said at a recent public hearing that any group that received even "an iota" of public funding should release such records. The Herald-Leader said that leaders in both houses of the legislature had indicated they favored the bill. For the full story on Simpson's proposal, click here.
The newspaper said the bill stems from its recent investigations into lavish spending at the Kentucky League of Cities and the Kentucky Association of Counties that led to the resignations of the leaders of both organizations. Although both organizations had surrendered records to the paper, they had claimed they were not subject to the records law. Each agency receives more than 25 percent of its budgets from public funds, the law's threshold for public inspection. Employees of both agencies receive state retirement benefits.
Simpson said at a recent public hearing that any group that received even "an iota" of public funding should release such records. The Herald-Leader said that leaders in both houses of the legislature had indicated they favored the bill. For the full story on Simpson's proposal, click here.
AG: Public agencies' settlements are public
Public agencies cannot keep settlement agreements in court cases confidential, Kentucky Attorney General Jack Conway reminded officials in an opinion issued Sept. 1.
The opinion, which is legally binding unless appealed to circuit court, found the Regional Water Resource Agency in violation of the state's Open Records Act. The case involved a settlement with Ed Shelton of a lawsuit he filed after his sewer line collapsed. Owensboro Messenger-Inquirer reporter James Mayse had requested a copy of the agreement, but was denied by the agency, which cited a confidentiality clause in the settlement.
The attorney general's office cited a 1997 decision of the state Supreme Court and earlier attorney-general decisions in ruling that such a clause "does not create an inherent right to privacy superior to the significant public interest in disclosure of such a record."
The office also ruled against the Powell County School District, saying its refusal to supply records on a school activity fund was "procedurally deficient" and "substantively incorrect." The opinion said the district did not give reasons for failing to reply within the three days required by law to a request by Karen Rose, and that the district's claim that the records were "general correspondence" which could be destroyed in two years was wrong.
The decision said the records had to be kept for three years and an audit performed before they could be destroyed. However, it said the attorney general's office "cannot afford Ms. Rose the relief she seeks" because the records no longer exist. He did urge the school district to review open records authorities on "proper records management."
For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.
The opinion, which is legally binding unless appealed to circuit court, found the Regional Water Resource Agency in violation of the state's Open Records Act. The case involved a settlement with Ed Shelton of a lawsuit he filed after his sewer line collapsed. Owensboro Messenger-Inquirer reporter James Mayse had requested a copy of the agreement, but was denied by the agency, which cited a confidentiality clause in the settlement.
The attorney general's office cited a 1997 decision of the state Supreme Court and earlier attorney-general decisions in ruling that such a clause "does not create an inherent right to privacy superior to the significant public interest in disclosure of such a record."
The office also ruled against the Powell County School District, saying its refusal to supply records on a school activity fund was "procedurally deficient" and "substantively incorrect." The opinion said the district did not give reasons for failing to reply within the three days required by law to a request by Karen Rose, and that the district's claim that the records were "general correspondence" which could be destroyed in two years was wrong.
The decision said the records had to be kept for three years and an audit performed before they could be destroyed. However, it said the attorney general's office "cannot afford Ms. Rose the relief she seeks" because the records no longer exist. He did urge the school district to review open records authorities on "proper records management."
For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.
Tuesday, September 1, 2009
Conway says district health department made several mistakes regarding public records
A Western Kentucky health department “subverted the intent” of the state Open Records Act in dealing with the Hopkinsville newspaper's requests for records, Attorney General Jack Conway said in a recent ruling.
The opinion, which is called an "open records decision" because it has the force of law, came after Kentucky New Era reporter Sarah Hogsed filed a request for restaurant inspection reports with the Pennyrile District Health Department. The New Era, which is already reporting on restaurant inspections in Christian County, plans to expand that coverage to adjoining Trigg and Todd counties.
The health department violated the open records law in several ways, the opinion said. First, it disputed Hogsed’s request to have the records within three days, saying it was only required to notify her within that period if it would comply. The attorney general's opinion said that the office was required to turn over the records in three days. The department demanded that she show up in person, present a photo ID and sign a standard form in the presence of a health department employee. That's not the law, either, the opinion said.
Hogsed would then get the records “in a reasonable period of time,” the reply said, “keep[ing] in mind two years of information is quiet [sic] time consuming.” She would also have to pay “all costs associated with the recovery and photocopying.” When the department finally got around to fulfilling the request, it appeared to get the job done in about one day, and charged the paper only 10 cents a copy, the general maximum established by previous attorneys general.
The opinion said the district's excuse for the delay – absence of staff – was not sufficient. The opinion added “in the interest of absolute clarity,” that those who ask for public records cannot be required to submit their requests on preprinted forms, or sign forms in the presence of an agency employee; that receipt of records no longer requires on-site inspection; that agencies may recover only their actual costs of reproducing public records, not including staff time, if the records are to be used for a noncommercial purpose, including use by a newspaper or periodical. The department had indicated that it considered the paper a commercial interest. "We suppose the notion that the news media act in the public interest had escaped the health department," the opinion said.
In another opinion, the attorney general's office ruled that the Shively Police Department’s failure to respond in a timely manner to a request for a police car video in a non-DUI case violated the Open Records Act. The full text of the decisions can be found through the Links of Interest at the bottom of the KOG Blog.
The opinion, which is called an "open records decision" because it has the force of law, came after Kentucky New Era reporter Sarah Hogsed filed a request for restaurant inspection reports with the Pennyrile District Health Department. The New Era, which is already reporting on restaurant inspections in Christian County, plans to expand that coverage to adjoining Trigg and Todd counties.
The health department violated the open records law in several ways, the opinion said. First, it disputed Hogsed’s request to have the records within three days, saying it was only required to notify her within that period if it would comply. The attorney general's opinion said that the office was required to turn over the records in three days. The department demanded that she show up in person, present a photo ID and sign a standard form in the presence of a health department employee. That's not the law, either, the opinion said.
Hogsed would then get the records “in a reasonable period of time,” the reply said, “keep[ing] in mind two years of information is quiet [sic] time consuming.” She would also have to pay “all costs associated with the recovery and photocopying.” When the department finally got around to fulfilling the request, it appeared to get the job done in about one day, and charged the paper only 10 cents a copy, the general maximum established by previous attorneys general.
The opinion said the district's excuse for the delay – absence of staff – was not sufficient. The opinion added “in the interest of absolute clarity,” that those who ask for public records cannot be required to submit their requests on preprinted forms, or sign forms in the presence of an agency employee; that receipt of records no longer requires on-site inspection; that agencies may recover only their actual costs of reproducing public records, not including staff time, if the records are to be used for a noncommercial purpose, including use by a newspaper or periodical. The department had indicated that it considered the paper a commercial interest. "We suppose the notion that the news media act in the public interest had escaped the health department," the opinion said.
In another opinion, the attorney general's office ruled that the Shively Police Department’s failure to respond in a timely manner to a request for a police car video in a non-DUI case violated the Open Records Act. The full text of the decisions can be found through the Links of Interest at the bottom of the KOG Blog.
Friday, August 28, 2009
Herald-Leader calls on Minton and Supreme Court to deliver on promises of openness
Despite pledges from Kentucky’s chief justice to shed more light on the process of building judicial facilities, the Lexington Herald-Leader says it’s “past time” for John Minton's promises to become reality.
“It's been almost a year since the Herald-Leader began chronicling the astounding building campaign of the Administrative Office of the Courts,” the newspaper said in an editorial over the weekend. “Cloaked in secrecy, riven with conflicts of interest, devoid of competitive bidding, the program has blasted through dozens of historic downtowns and almost a billion taxpayer dollars and is still going.”
The paper notes that Minton inherited the system from retired Chief Justice Joseph Lambert, and "has taken positive steps to protect both the integrity of the state's court system and tax dollars. ... But some of the changes Minton announced last October to ‘shore up public confidence’ have not yet materialized. It's past time for them to become reality.” Minton told the KOG Blog earlier this year that opening up the court construction program was one of his goals in a general review he has ordered of the degree of transparency in the Kentucky court system. He declined to comment on the Herald-Leader’s editorial.
“The most critical [change needed] is opening up AOC's work to public view, and scrutiny,” the paper wrote. “The records of the court system and the AOC have been closed since 1978 when the Supreme Court ruled that they weren't subject to the state open records law. This is a puzzlement. Our system depends upon the integrity of the courts. And nothing encourages integrity like open records.”
The paper said the lack of transparency leads to a “queasiness,” explaining: “First, we're talking about our courts. If they aren't honest and open, is there any hope for clean government in the two other branches? Second, there is a ton of money on the table here. Human nature and Kentucky's long, corrupt history tell us that public money combined with secret dealings is a combustible mixture that yields no good. ... The Supreme Court can undo what it did in 1978. Open the books. Open the process. Restore confidence.”
“It's been almost a year since the Herald-Leader began chronicling the astounding building campaign of the Administrative Office of the Courts,” the newspaper said in an editorial over the weekend. “Cloaked in secrecy, riven with conflicts of interest, devoid of competitive bidding, the program has blasted through dozens of historic downtowns and almost a billion taxpayer dollars and is still going.”
The paper notes that Minton inherited the system from retired Chief Justice Joseph Lambert, and "has taken positive steps to protect both the integrity of the state's court system and tax dollars. ... But some of the changes Minton announced last October to ‘shore up public confidence’ have not yet materialized. It's past time for them to become reality.” Minton told the KOG Blog earlier this year that opening up the court construction program was one of his goals in a general review he has ordered of the degree of transparency in the Kentucky court system. He declined to comment on the Herald-Leader’s editorial.
“The most critical [change needed] is opening up AOC's work to public view, and scrutiny,” the paper wrote. “The records of the court system and the AOC have been closed since 1978 when the Supreme Court ruled that they weren't subject to the state open records law. This is a puzzlement. Our system depends upon the integrity of the courts. And nothing encourages integrity like open records.”
The paper said the lack of transparency leads to a “queasiness,” explaining: “First, we're talking about our courts. If they aren't honest and open, is there any hope for clean government in the two other branches? Second, there is a ton of money on the table here. Human nature and Kentucky's long, corrupt history tell us that public money combined with secret dealings is a combustible mixture that yields no good. ... The Supreme Court can undo what it did in 1978. Open the books. Open the process. Restore confidence.”
Thursday, August 13, 2009
Attend Sunshine Seminar in Morehead Sept.18
The Sunshine Seminar, a refresher course on Kentucky open-records and open-meetings laws, is being offered at Morehead on Friday, Sept. 18 for journalists but is open to anyone interested in freedom-of-information issues.
The course is jointly sponsored and run by the Kentucky Press Association, the Institute for Rural Journalism and Community Issues and the Scripps Howard First Amendment Center (both part of the University of Kentucky School of Journalism and Telecommunications). It will cover such issues as how to use the laws, how to appeal to the attorney general, how to deal with judges and other court officials who try to close court proceedings, and using federal and state campaign-finance records to do election stories. Journalists will share success stories and discuss their experiences on the open-government front.
The seminar will be held at the downtown Morehead Convention Center from 9 a.m. to 4 p.m. and the $20 fee will include lunch.
Here’s the detailed schedule:
9:00 The importance of open records, open meetings and open courts and journalists’ role: Al Cross, Institute for Rural Journalism and Community Issues
9:15 History of state FOI laws; how to file open-records requests and appeals; how to keep meetings and courts open: Ashley Pack, Dinsmore & Shohl law firm, KPA attorney-lobbyist
10:30 Dealing with the Office of the Attorney General: Amye Bensenhaver, assistant attorney general and veteran decision writer
12:00 Lunch
12:45 Success stories: How we used freedom-of-information laws and reporting techniques to keep local government open to the sunshine: Carrie Stambaugh, The Independent, Ashland, and others
2:15 Using campaign-finance records in coverage of elections: Tom Loftus, Frankfort Bureau chief, The Courier-Journal
3:30 Records you can and should publish in your newspaper: Al Cross, Institute for Rural Journalism and Community Issues
This seminar will help you do a better job of keeping government open and accountable. Please register today: http://www.uky.edu/comminfostudies/irjci/SunshineEast09reg.pdf.
The course is jointly sponsored and run by the Kentucky Press Association, the Institute for Rural Journalism and Community Issues and the Scripps Howard First Amendment Center (both part of the University of Kentucky School of Journalism and Telecommunications). It will cover such issues as how to use the laws, how to appeal to the attorney general, how to deal with judges and other court officials who try to close court proceedings, and using federal and state campaign-finance records to do election stories. Journalists will share success stories and discuss their experiences on the open-government front.
The seminar will be held at the downtown Morehead Convention Center from 9 a.m. to 4 p.m. and the $20 fee will include lunch.
Here’s the detailed schedule:
9:00 The importance of open records, open meetings and open courts and journalists’ role: Al Cross, Institute for Rural Journalism and Community Issues
9:15 History of state FOI laws; how to file open-records requests and appeals; how to keep meetings and courts open: Ashley Pack, Dinsmore & Shohl law firm, KPA attorney-lobbyist
10:30 Dealing with the Office of the Attorney General: Amye Bensenhaver, assistant attorney general and veteran decision writer
12:00 Lunch
12:45 Success stories: How we used freedom-of-information laws and reporting techniques to keep local government open to the sunshine: Carrie Stambaugh, The Independent, Ashland, and others
2:15 Using campaign-finance records in coverage of elections: Tom Loftus, Frankfort Bureau chief, The Courier-Journal
3:30 Records you can and should publish in your newspaper: Al Cross, Institute for Rural Journalism and Community Issues
This seminar will help you do a better job of keeping government open and accountable. Please register today: http://www.uky.edu/comminfostudies/irjci/SunshineEast09reg.pdf.
Wednesday, August 12, 2009
Attorney general issues open records decisions
The following Open Records Decisions have been issued by the Office of the Attorney General:
09-ORD-120 (McCracken County): Reidland-Farley Fire Department did not violate open records law when it notified requester that it did not maintain records responsive to his request and advised him where those records were located. Questions relating to the truthfulness of this statement cannot be resolved in this appeal, nor can questions relating to unperfected appeal and questions that are hypothetical in nature.
09-ORD-121 (Jefferson County): Decision adopting 00-ORD-116; grand jury records are permanently excluded from application of the Open Records Act by operation of KRS 61.878(1)(h).
09-ORD-122 (Jefferson County): Decision adopting 98-ORD-6 and 04-ORD-021; records in the custody of circuit and district court clerks are properly characterized as court records, to which the Open Records Act does not apply, rather than public records within the meaning of KRS 61.870(2). In accordance with Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), KRS 26A.200 and KRS 26A.220, the authorities upon which 98-ORD-6 and 04-ORD-021 are premised, this office finds that the Jefferson Circuit Court Clerk is not bound by, and therefore cannot be said to have violated the Open Records Act in failing to respond in writing upon receipt of the request(s) at issue as KRS 61.880(1) otherwise requires or in declining to "notify and/or respond for" specified judges and court officers.
09-ORD-123 (Henderson County): Decision adopting 03-ORD-074 and holding that Henderson County Detention Center properly relied on KRS 197.025(2) in denying inmate request for records that did not contain a specific reference to him.
For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.
09-ORD-120 (McCracken County): Reidland-Farley Fire Department did not violate open records law when it notified requester that it did not maintain records responsive to his request and advised him where those records were located. Questions relating to the truthfulness of this statement cannot be resolved in this appeal, nor can questions relating to unperfected appeal and questions that are hypothetical in nature.
09-ORD-121 (Jefferson County): Decision adopting 00-ORD-116; grand jury records are permanently excluded from application of the Open Records Act by operation of KRS 61.878(1)(h).
09-ORD-122 (Jefferson County): Decision adopting 98-ORD-6 and 04-ORD-021; records in the custody of circuit and district court clerks are properly characterized as court records, to which the Open Records Act does not apply, rather than public records within the meaning of KRS 61.870(2). In accordance with Ex Parte Farley, Ky., 570 S.W.2d 617 (1978), KRS 26A.200 and KRS 26A.220, the authorities upon which 98-ORD-6 and 04-ORD-021 are premised, this office finds that the Jefferson Circuit Court Clerk is not bound by, and therefore cannot be said to have violated the Open Records Act in failing to respond in writing upon receipt of the request(s) at issue as KRS 61.880(1) otherwise requires or in declining to "notify and/or respond for" specified judges and court officers.
09-ORD-123 (Henderson County): Decision adopting 03-ORD-074 and holding that Henderson County Detention Center properly relied on KRS 197.025(2) in denying inmate request for records that did not contain a specific reference to him.
For a full text of the decisions, see Links of Interest at the bottom of the KOG Blog.
Tuesday, August 4, 2009
AP Managing Editors give Kentucky's big papers 1st Amendment, public-service awards
The Courier-Journal and the Lexington Herald-Leader are among recipients of awards announce yesterday by the Associated Press Managing Editors. The Herald-Leader won a Public Service Award for its recent series of reports on appointed government boards and local-government lobbying and service groups, while the Louisville paper won a First Amendment Award for its successful seven-year fight to reveal donors to the University of Louisville Foundation.
"The legal battle between the newspaper and the university began in 2001 after the paper requested the names of people who donated to the university's McConnell Center, which Senate Minority Leader Mitch McConnell, R-Ky., helped found," Emilu Udell writes for The C-J. "The foundation argued that it was not a public agency and so was not subject to the Kentucky Open Records Act." (Read more)
"The Herald-Leader won the Public Service Award given to newspapers with a circulation of 40,000 to 150,000," the paper and AP report. The paper's "It's Your Money" series "has examined spending at Blue Grass Airport, the Lexington Public Library, Kentucky League of Cities and Kentucky Association of Counties. The stories revealed that the groups had spent hundreds of thousands of dollars on questionable travel, meals and other expenses. After the initial airport stories appeared, the director of the airport resigned, as did several top members of his staff." (Read more)
For the full list of winners, from APME, click here.
"The legal battle between the newspaper and the university began in 2001 after the paper requested the names of people who donated to the university's McConnell Center, which Senate Minority Leader Mitch McConnell, R-Ky., helped found," Emilu Udell writes for The C-J. "The foundation argued that it was not a public agency and so was not subject to the Kentucky Open Records Act." (Read more)
"The Herald-Leader won the Public Service Award given to newspapers with a circulation of 40,000 to 150,000," the paper and AP report. The paper's "It's Your Money" series "has examined spending at Blue Grass Airport, the Lexington Public Library, Kentucky League of Cities and Kentucky Association of Counties. The stories revealed that the groups had spent hundreds of thousands of dollars on questionable travel, meals and other expenses. After the initial airport stories appeared, the director of the airport resigned, as did several top members of his staff." (Read more)
For the full list of winners, from APME, click here.
Wednesday, July 29, 2009
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.
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.
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.
Monday, July 27, 2009
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.
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.
Tuesday, July 21, 2009
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.
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.
Thursday, July 16, 2009
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.
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.
Thursday, July 2, 2009
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.
“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.
Friday, June 26, 2009
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.
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.
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