Mississippi journalists fight government secrecy

The Rural Blog reports that the Mississippi Press Association, The Associated Press and the state's freedom-of-information center are teaming up in another effort to fight government secrecy. To see the story, go to http://irjci.blogspot.com/.

AP chief says journalism includes using open-government laws and fighting for better ones

Using freedom-of-information laws and fighting for stronger ones is "journalism by other means" and should be an essential function for journalists, their employers and their membership organizations, Tom Curley, president of The Associated Press, told the Kentucky Press Association today.

Keynoting KPA's convention at the Embassy Suites in Lexington, Curley said America's broad body of statutory and case law for open government is "terribly vulnerable" because of changes in the friendly "ecosystem" that has built "this fragile edifice of laws and rules." He said the ecosystem includes news organizations that are suffering financial pressure and journalism organizations that are seeing their membership ranks wither. Also, "Courts and judges, sometimes at the highest level, are part of the problem they are supposed to help us solve," Curley said.

Curley said that in tough economic times, when so much emphasis is on maintaining audience and generating revenue, he was glad to see the KPA convention had several sessions related to freedom of information. The centerpiece of the program was the Better Watchdog Workshop of Investigative Reporters and Editors, aimed at helping newspapers do better watchdog journalism about government and other institutions.

The convention concludes tonight with the annual awards banquet. At the luncheon where Curley spoke, the Lexington Herald-Leader presented its annual Lewis Owens Community Service Award to the Beattyville Enterprise, a small weekly paper that continued publishing after its offices were destroyed by fire. "We are all inspired by your story," Curley told Enterprise Editor Edmund Shelby, who completed his year as KPA president at the event. The new president is Chip Hutcheson of The Times Leader in Princeton.

Attorney general approves Hopkinsville council's vague motion for 'appropriate legal action'

The Hopkinsville City Council was justified in deliberately leaving vague its motion to take action after a closed discussion because the matter involved legal strategy, the state attorney general's office has ruled.

The Kentucky New Era newspaper had complained that the council, which met in closed session to discuss litigation with AT&T, had "violated the spirit and foundation of Kentucky's Open Meetings Act" when it voted only to "take appropriate legal action" following the secret discussion. The attorney general's decision said that while "such a vaguely worded motion might, under a different set of facts, represent little more than a strategem to 'shield the agency from unwanted or unleasant pulbic input, interference or scrutiny'," in this case the council was justified in trying to protect its legal strategy, and therefore did not violate the law.

For a full text of this and other recent attorney general rulings, see Links of Interest below. The opinion is 10-OMD-007.

Hopkinsville appeals attorney general's decision, fights to keep certain police records secret

The city of Hopkinsville has appealed an attorney general's decision that city officials should give the Kentucky New Era with certain police records that the city says it does not have to disclose.

The newspaper asked city police for reports "referencing any threats made in Hopkinsville during an eight month period," Julia Hunter of the New Era writes. "City Clerk Crissy Upton provided more than 400 reports, but withheld all reports regarding juveniles, any reports under investigation and redacted “personal information” of victims and offenders. The information redacted included gender, race, ethnicity and addresses."

The New Era appealed to the attorney general's office. In December, Attorney General Jack Conway agreed with the newspaper, saying the city has failed to justify its stance with specific arguments. The appeal goes to Circuit Judge Andrew Self.

Foundation gives $2 million for open-records battles

Battles for freedom of information often stop for lack of financial ammunition. Now help may be available, thanks to a three-year, $2 million grant from the John S. and James L. Knight Foundation to the National Freedom of Information Coalition.

The grant will create the Knight FOI Fund, which "will fund up-front costs such as court costs, filing fees, depositions and initial consultation fees, if attorneys are willing to take cases that otherwise would go unfiled," NFOIC announced. The grant application was prompted by an NFOIC survey that found almost 80 percent of its members' lawsuits to open public records in their states had become less numerous, and 60 percent said it had dropped dramatically. And 85 percent predicted that FOI litigation would drop dramatically over the next three years. NFOIC blamed "the economic crisis and the evolution of the news media" and cited several specific examples in its release.

Paper entitled to records on county loan to rival, or a better reason why kept secret, AG says

The McCreary County Fiscal Court and the county Industrial Development Authority need to give one of the county's newspapers records relating to a $60,000 loan the county made to the other paper to start a television station, or they must explain why it shouldn't, the office of the attorney general ruled in an open-records decision released today.

The McCreary County Record asked County Judge-Executive Blaine Phillips for "any documentation concerning a loan to The McCreary County Voice and/or its agent, Patricia Stephens." Phillips declined, citing to News Editor Janie Slaven the exception in the Open Records Act for "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained in conjunction with an application for or the administration of a loan or grant."

The decision, written by Assistant Attorney General Amye Bensenhaver, said, "While it is possible that some records, or portions of records, submitted by the loan applicant, such as financial statements or a description of the applicants’ financial stability, may qualify for protection . . . KRS 61.880(2)(c) assigns the burden of proof in sustaining the denials of Ms. Slaven’s requests to the agencies, and no proof of any kind is submitted in support of those denials. It is for this reason that the agencies’ responses are both procedurally and substantively deficient."

The decision puts the ball back in the county's court, to turn over the records, give a more detailed reason or challenge the opinion in circuit court. Here is the Record's Nov. 25 report on the loan. The Voice Web site is at http://newspaper.tmcvoice.com/.

Senator reintroduces bill on 911 calls

A Northern Kentucky state senator has reintroduced a bill for the upcoming legislative session to prohibit the broadcast of 911 recordings.

Sen. John Schickel, R-Union, has argued that the bill would protect the identity of people making 911 calls, although identifying information would still be available in transcripts.

The Society of Professional Journalists published a letter Tuesday urging a similar bill in Ohio be withdrawn, saying it would diminish the news media's ability to report on breaking events.

"If audio recordings are banned from the public airwaves then it will be virtually impossible for citizens to hear how calls are being handled and effectively hold emergency response centers accountable," the SPJ letter said. "Ohio courts traditionally have ruled in favor of disclosure of 911 tapes for all to hear for good reason - it ensures the public trust in its institutions regarding the safety and welfare of citizens."

When Schickel introduced the bill in the 2009 session, he said he wanted to prevent news outlets from attracting viewers by broadcasting the frantic, sometimes final pleas of victims. The bill passed the Senate in the 2009 session but failed to pass the House.

Last year, the Kentucky bill was opposed by the Kentucky Press Association and the Kentucky Broadcasters Association, even though both organizations noted that such calls are rarely actually broadcast. In Kentucky, 911 calls are currently public records, available to reporters and ordinary citizens alike.

The bill, SB 308, would "restrict the availability of recordings of 911 communications to releases by court order," but would allow written transcripts.

Kentucky court system spending data now on searchable state Web site; salary data later

Kentucky courts recently joined the "e-Transparency initiative" launched by the executive branch of state government this year. Judicial Branch expenditures and contracts are now posted at www.opendoor.ky.gov. (Click on Start Your Search at OpenDoor, then on Expenditure Search and then select Judicial Branch under Expenditure Search.)

There is a searchable database of line-item expenditures by the courts going back to January 2007. Salary information will be added in coming months, the office of Chief Justice John D. Minton Jr. said in a news release. “I’m pleased to join the Executive Branch in providing comprehensive financial information on the OpenDoor website,” Minton said. “This is part of our ongoing effort to increase the court system’s accountability to Kentucky taxpayers.”

The Judicial Branch is comprised of four levels of state courts – the Supreme Court, the Court of Appeals, Circuit Court and District Court. The Administrative Office of the Courts supports the activities of approximately 3,800 Kentucky Court of Justice employees, including the elected justices, judges and circuit court clerks.

Louisville judges say juvenile case of soldier guilty in military homicide should be opened

In the latest move toward opening of juvenile courts in Kentucky, a Louisville judge has affirmed a lower court's ruling that a newspaper could "inspect the homicide case of a 12-year-old boy charged a dozen years later with murdering a fellow ex-soldier in Colorado," reports The Courier-Journal, which sought the rulings. The paper's lawyer, Jon Fleischaker, said the case could help persuade other judges to open certain juvenile cases.

The case "captured national media attention as an example of the horrific crimes committed by some Iraq war veterans," Andrew Wolfson writes, adding that the newspaper wants to see if the juvenile case "was properly handled" and whether the perpetrator, Kenneth Eastridge, "should have been prohibited from enlisting later in the Army."

The judges said "the usual protection of the confidentiality of minors in criminal cases was outweighed by the fact that Eastridge was now an adult, the severity of the current murder charge and the public interest in learning from his case," Wolfson reports. "Assistant Public Defender J. David Niehaus said he will ask the state Court of Appeals to hear the case." (Read more)

Attorney general says state police broke records law, unemployment board broke meetings law

Kentucky State Police should have released information, including 911 tapes, on the death of William Sparkman in the Daniel Boone National Forest when requested by a reporter for The Associated Press, the state's attorney general has ruled.

While the state Open Records Act allows police to withhold information in cases under investigation, they must specify exactly what harm would be done by releasing it, the ruling said. Since they did not do so in this case, they violated the law, it said.

In another ruiling, the attorney general said the state's Unemployment Insurance Task Force violated the Kentucky Open Meetings Act. The office ruled in favor of The Courier-Journal, which had complained that the task force excluded the press and public when it split into several small groups to consider changes to the state's unemployment insurance program.

Full texts of these and other decisions issued Monday can be found via the Links of Interest at the bottom of ther KOG Blog.

Key lawmaker, advocacy group back opening records of severe child abuse and neglect

Kentucky, which leads the nation in deaths of abused and neglected children, should open its records in such cases and those involving severe injuries, the chairman of the state House Health and Welfare Committee and the head of Kentucky Youth Advocates said yesterday.

"State Rep. Tom Burch, D-Louisville, said Friday he will introduce legislation in the 2010 General Assembly that would require state child-protection officials to release their records on children who died or were severely injured as a result of abuse or neglect," reports the Lexington Herald-Leader. Burch told the newspaper that it's possible state employees "didn't do their job right or they had heavy caseloads and didn't have time to look at the case sufficiently."

House Speaker Greg Stumbo told the paper, ""The House is more than willing to look for ways to make life safer for our youngest citizens, and if Rep. Burch believes this is an effective approach to take, I expect the chamber will be supportive of his efforts." Stumbo and Burch are Democrats; the Senate is controlled by Republicans, and Senate President David Williams said he would have to see the legislation before commenting.

KYA Executive Director Terry Brooks, said his group would support the bill and a separate measure to open at least some proceedings in Family Court. "The current undue emphasis on confidentiality only hides issues in the child-welfare system," he told the Herald-Leader. "Broader public exposure is a beginning step to fixing many of the issues that afflict child protection. It is a tough proposition but the right balance can be found between privacy rights, system accountability and disclosure for the sake of system improvements." (Read more)

Chief Justice continues to support legislation to open some Family Court proceedings

Kentucky Chief Justice John Minton Jr. would support another effort by the legislature to open family court proceedings to the public, according to a statement from his office to Kentucky Citizens for Open Government.

Reacting to The Courier-Journal's reporting on Family Court proceedings in Jefferson County, Minton's statement said he supported Judge Joan Byer's decision to allow access to a Courier-Journal reporter with the permission of the parties and the condition that no one be identified. Under court rules, Family Court proceedings are normally closed to the public, because they often involve juveniles, but judges have discretion to open them.

“We have a number of judges who work daily in the system who have openly expressed their support for allowing the public to see what is going on in certain types of juvenile proceedings," Minton said. "These judges are attempting to follow model programs that have been successful across the country and to bring best practices to the courts of Kentucky. I support the work of these judges and encourage their efforts to provide greater accessibility."

Minton noted that the General Assembly declined last year to pass a bill setting up a pilot project to open some Family Court proceedings. "I would support similar legislation if introduced again,” he said.

UPDATE, Dec. 19: Yetter picked up on Minton's statement to KCOG and the KOG Blog and wrote a front-page story quoting him and legislators on the issue: "Rep. Susan Westrom, D-Lexington, a co-sponsor of the 2008 bill, said she’s willing to try again given the extent of problems that appear to beset the state’s child-protection system. Opening the courts might be a step toward shedding some light on the state’s overall system of protecting children from neglect and abuse, she said." Yetter notes, "Half the 50 states — including Indiana, Tennessee and Ohio — permit some access to juvenile and family courts, according to a 2008 joint report by the Children’s Advocacy Institute at the University of San Diego Law School and First Star, a Washington child advocacy group."

State police should release first page of report on death investigation, attorney general rules

The Kentucky State Police violated the state open-records law in denying the Kentucky New Era's request for an initial report on the September death of a Mayfield woman, the state attorney general's office has ruled in an appeal filed by the Hopkinsville newspaper.

The police denied News Editor Julia Hunter's request on grounds that the investigation was still active, and KSP lawyer told the attorney general's office that the police do not "create initial offense reports or incident reports," an assertion that appears in boldface type in the decision, perhaps because it was so surprising, or unbelieveable.

Attorney General Jack Conway said the first page of the KSP's standard report form is the functional equivalent of an "initial offense report," which is supposed to be public. "As a general policy matter, this office recognizes that the public has the right to know when crimes are being committed in their community and to obtain information, through the Open Records Act, which would establish whether or not law enforcement agencies are actively investigating those crimes and pursuing wrongdoers," the ruling said, noting that there is "no other initiating document by which the public can be informed of the existence of this investigation."

The decision said "KSP has not demonstrated with specificity the harm that would result from disclosure of any information" in the report, so it should redact any information exempt from mandatory disclosure, then release the report. Hunter noted in her appeal that the police issued a news release that gave basic facts about the incident, so "It seems improbable the release of the report would jeopardize an investigation."

The full text of this and other attorney general rulings issued Tuesday can be found via Links of Interest at the bottom of the KOG Blog.

Judge: Board improperly closed superintendent's evaluation, must pay paper attorneys' fees, fine

The Jefferson County Board of Education violated the Kentucky Open Meetings Act when it decided to conduct Superintendent Sheldon Berman's annual evaluation behind closed doors, Jefferson Circuit Court Judge Irv Maze ruled Monday. "While it may have been more convenient for the Board and Superintendent to have this discussion held in private," the reasons for doing so given by the board "do not justify closing the meeting to the public."

The Courier-Journal reported Tuesday that the board had decided not to appeal the ruling. Maze cited a 2008 ruling in the case, by Attorney General Jack Conway, that such evaluations must be public unless they might lead to discipline or dismissal. The board tried to make such a justificiation, but only after it had already decided to close the meeting. Ruling the action a "willful" violation of the law, the judge ordered the the board to pay attorney's fees to the newspaper, which had to pay lawyers to deal with the board's appeal of Conway's ruling, plus a $100 penalty.

"This Court is mindful that it is often difficult to discuss matters such as these in public," Maze wrote, but exceptions to the open-meetings law "should be obvious and not manufactured in order to work around the law." While not controlling outside Jefferson County, Maze's decision upholds an attorney general's decision that does have statewide import, so it's a good tool for reporters and editors anywhere in Kentucky to use in arguments against closing such meetings. To read the decision, click here. To download it as a Word document, also from the Web site of the Institute for Rural Journalism and Community Issues, click here.

Courier-Journal reporter, photographer get a rare look at Family Court in Jefferson County

The Courier-Journal recently persuaded a Jefferson County Family Court judge to ease Kentucky's strict confidentiality rules long enough to allow reporter Deborah Yetter to research and write a rare report on, and photographer Matt Stone to take pictures of, the court's operations.

The report, the third part of a series on child abuse in the state, was published Tuesday. The story took a close look at several cases involving abused and abandoned children. Judge Joan Byer allowed access "with permission of the parties in the courtroom, as long as children and families weren't identified," Yetter wrote. "Byer said she exercised her discretion to do that because she believes, in most cases, the courts should be open and the public needs to understand what's going on with child welfare." Byer said the system is overburdened and caseworkers are under intense pressure to keep cases closed. (Photo by Matt Stone)

The report included several sidebars, one of which noted that the confidentiality rules usually followed in family court cases exceeded the requirements set by state law, and the practice of some other states. It also quoted childrens' advocates and others as saying excessive secrecy hides faults in the system. The main story can be found here. The sidebar on confidentiality rules is here.

Federal government sets new transparency goals

The Obama adminstration has made a major move toward realizing the president's promise, upon taking office, of more transparency in government. This has impact not just in Washington, but at the state and local offices of federal agencies.

All federal agencies have been ordered to carry out specific tasks and meet deadlines to increase public access to government information. The Office of Management and Budget last week issued an 11-page directive that also calls for agencies to use technology to distribute information, without waiting for people to file Freedom of Information Act requests.

The directive says that in order "to create an unprecendented and sustained level of openness and accountability in every agency, senior leaders should strive to incorporate the values of transparency, participation and collaboration into the ongoing work of their agency."

Among the tasks set out for federal agencies to meet in the first 45 days are:

-- Publish three "high-value" sets of data that have not previously been released in a downloadable format. (This could produce several local news stories, since federal agencies amass a huge amount of data.)

-- Designate a high-level official to be accountable for spending data made available to the public.

-- Form a new working group of senior officials to address transparency and accountablity issues.

The order also sets out other tasks to be accomplished in 60 or 120 days, including more open-goverment Web sites and plans for more transparency.

The full text of the OMB order can be found here.

City utility bills public if they aren't for persons, attorney general rules in Danville case

Individual billing data at a city utility is public if it doesn't reveal information about individual persons, the state attorney general's office has ruled.

The open records decision, which has the force of law but could be appealed, was requested by Clay Moore of Danville, who often requests records from public agencies in Boyle County but has never fild an appeal with the attorney general, for whcih there is no charge. He asked the city water and sewer department for bills of Centre College,Ephraim McDowell Regional Medical Center and Central Kentucky Ambulatory Surgery Center LLC.

The agency declined to release the records, citing a 1996 attorney general's decision. The latest decision overturned that one, saying it was “erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users. . . . The interest of the public in ensuring that the department has, and fairly enforces, a uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.”

The 1996 decision was issued when Ben Chandler, now 6th District U.S. representative, was attorney general. The latest decision, which said the office has the right to change its mind, was written by Assistant Attorney General Amye Bensenhaver and approved by Attorney General Jack Conway. Moore "said Monday he is pleased with the ruling and wants to obtain the information to verify whether the large utility customers in question are being billed properly for their usage," reported David Brock of The Advocate-Messenger. (Read more)

Appeals court sides with newspaper, rejecting Lexington council's plan to close meeting

One of the more routinely abused exceptions to the Kentucky Open Meetings Act is the one that allows closed sessions for "proposed or pending litigation." Today the state Court of Appeals upheld a lower-court ruling that kept the Lexington-Fayette Urban County Council from using that as an excuse to close a meeting "to discuss the city's response to a request before the state Public Service Commission by Kentucky American Water to build a $162 million treatment plant and pipeline," reports Andy Mead of the Lexington Herald-Leader.

The Herald-Leader objected to the closure, prompting a hearing in which Circuit Judge Sheila Isaac agreed with the newspaper and ordered the meeting to remain open. "The city later asked Isaac to reconsider, but the judge dismissed the case without ruling on the litigation exception' issue," Mead reports. "The city took the case to the appeals court, seeking a blanket ruling that the exception applies in all administrative proceedings."

The unanimous three-judge panel noted that the law requires its exceptions to be "strictly construed," and "said that the city failed to show that the same set of circumstances would occur again," Mead reports. (Read more)

AG slaps Nelson ethics board, says Murray economic-development entity isn't public

The state attorney general’s office has ruled for the second time in a month that the Joint Board of Ethics for Bardstown, Fairfield and Nelson County has violated the Open Records Act.

The latest ruling came in a follow-up to last month’s citation of the board for denying records requested by local resident Marge Brumley about an ethics complaint she filed with the board. Brumley’s husband, Kevin, then asked to see records regarding the disposition of that ethics complaint, which the board refused, citing a local ordinance about cases that had not been finally determined.

The attorney general’s ruling said such ordinances “are of no legal effect to the extent they purport to override the unambiguous legislative policy supported by the Open Records Act.” The ruling also said that “final action” in such cases included a decision to take no action, which the board had done.

Attorney General Jack Conway also ruled in No. 09-ORD-192 that the record does not support the conclusion that the Murray-Calloway County Economic Development Corp. is a public agency because it has received only 20.57 percent of the funds it has expended in the Commonwealth in the current fiscal year from state or local authority funds. The decision "said that the EDC would have met that definition in fiscal year 2008 because it received a $1.6 million from the state," Hawkins Teague of the Murray Ledger and Times reports. The threshold for being a public agency is 25 percent. Lexington attorney Matthew Malone had requested records relating to EDC President Mark Manning's arrest on a DUI charge he received while in Frankfort. "Manning pleaded guilty to the charge and paid a fine," Teague reports. "He also issued a statement in August apologizing for his actions." (Read more)

Conway also said the McCracken County Jail violated the Open Records Act by failing to respond to an inmate’s request for records, and to the attorney general’s inquiry in the case. The inaction “cannot be allowed to continue,” and the jail remains in violation of the act, the ruling said. Here are other recent attorney general’s rulings on open-government issues, including two involving Butler County government:

09-ORD-191: Butler County Fiscal Court violated procedural requirements of the Open Records Act in responding to request for records relating to a magistrate's expense reimbursement, health, insurance, retirement, and timesheets. Although paucity of records produced raises questions about recordkeeping practices, such practices are beyond the scope of the AG's review under KRS 61.880(2).

09-ORD-187: Because the Butler County Sheriff's Department mailed a written response to a request within three business days, and the AG's office cannot resolve the related factual issue which prompted the appeal, the Attorney General has no basis upon which to find a violation of KRS 61.880(1). The Department violated KRS 61.872(4) in failing to provide requester with contact information for the official custodian of the agency in possession of certain records which are partially responsive.

09-OMD-188: The state Board of Chiropractic Examiners did not violate KRS 61.815 regarding required notice for a closed session when general notice of the nature of the business was given. Under 05-OMD-017, discussions of a quasi-judicial body at the charging stage are "deliberations" within the meaning of KRS 61.810(1)(j). One board member's whispering did not violate the Act unless it pertained to public business. KRS 61.840 does not guarantee that persons videotaping a public meeting may place cameras and microphones wherever they wish, or that the faces of all members be turned toward the public at all times when discussions are audible to those present.

Full texts of the decisions can be found through Links of Interest at the bottom of the KOG Blog.

Attorney general rules against city, county agencies

The Kentucky Attorney General’s office has cited several county and city agencies for holding closed sessions or meetings or refusing requests for public records in a batch of rulings.

The office ruled:

• A planning committee formed by Shelby County Fiscal Court and the cities of Shelbyville and Simpsonville violated the Open Meetings Act by conducting non-public meetings without notice or minutes. The committee had been created by official action.

• The Joint Board of Ethics for the cities of Bardstown and Fairfield and Nelson County failed to observe requirements for conducting closed sessions and failed to respond to an open meetings complaint.

• Laurel County Fiscal Court was late in responding to a request for public records and wrong in refusing records of a closed session on jail personnel.

• The Webster County Board of Education violated the Open Meetings Act in failing to strictly comply with legal requirements before going into closed session.

• The city of Raceland subverted the intent of the Open Records Act by representing that charges would be made for staff time spent on an open records request.

• Madison County Fiscal Court violated the Open Meetings Act in relation to a September 22 meeting of a quorum of its members or a series of less than quorum meetings where the members attending collectively constituted a quorum and where public business was discussed.

• Kentucky Community and Technical College System improperly relied on KRS 61.878(1)(a) and (i) in denying a request for evaluations and performance improvement plans relating to public officials whose conduct had been questioned. The ruling also said KCTCS's inability to produce correspondence exchanged by the chancellor and the president for a two-month period suggests record management issue, and referred the matter to the Department for Libraries and Archives.

The attorney general’s office also ruled in favor of the Office of the Commonwealth’s Attorney for the 30th Judicial District, Campbell County Fiscal Court, Western Kentucky Correctional Complex, Kentucky State Reformatory, Pike County Circuit Court Clerk and Louisville Metro Department of Corrections in separate open records and open meetings complaints.

Full texts of the opinions can be found through the Links of Interest below.