Agencies told their forms are improper

The office of Attorney General Jack Conway issued two opinions last week criticizing public bodies for denying records inappropriately.

The city of Carrollton violated the Open Records Law when it required a citizen seeking public records to fill out a city form for the request.

Salome Frances Spenneberg Kist in February requested records concerning specific properties in the city. The opinion, issued May 23, said the city cannot require requesters to use a city form. The opinion also criticized the city for failing to respond to Ms. Kist within three days, as the law requires.

The decision quoted a 1994 Attorney General’s opinion: “While the public agency may require a written application, as opposed to an oral request, there is nothing in the (open records) statute which authorizes a public agency to reject a request simply because the requester did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.”

In a separate opinion, the office held that the Housing Authority of Morgantown, Butler County, violated the law by asking Robert Cron why he was requesting records and by requiring him to fill out a form.

The opinion quotes a 2006 opinion of the attorney general which held “KRS 61.872(2) does not authorize public agencies to inquire into a requester’s motives in seeking access to public records, or to consider those motives in determining whether the records should be released.”

The office also ruled against a state prisoner who requested legal statutes from the Kentucky State Law Library. The attorney general’s office has previously held that the court system, including the law library, is not bound by the provisions of the Open Records Act.

Inmates lose open-records requests

The Attorney General’s office has upheld the denial of records in two separate cases involving inmates in state prison, ruling the requested documents were exempt under the state’s Open Records Act.

The office of Clifford R. Duvall, commonwealth attorney for Lewis and Greenup counties in northeastern Kentucky, denied Wayne C. Murphy’s request to view the transcripts of a grand jury proceeding. That record is exempt from release under the state’s Open Records Act and under court rules established by the Kentucky Supreme Court. The attorney general ruled that Duvall correctly denied the request.

Murphy, according to the Ashland Independent, was convicted in November 2006 of the rape and brutal bludgeoning of a video store manager in Russell in 2004. The records he sought involved his girlfriend, Tracy L. Chaffins, indicted as the lookout in the incident. Before her trial, she took her own life, according to police.

In a related opinion, the attorney general held that the Greenup County jailer had violated the Open Records Act by failing to respond to Murphy’s request for all records related to the incarceration of William D. Mollett. The opinion also noted that because Murphy is an inmate at Eastern Kentucky Correctional Complex, the jailer could deny his request if Murphy did not have enough money in his account to cover the copy charges.

In a separate case involving an inmate, the attorney general’s office upheld the decision of the Kentucky State Penitentiary denying an open records request of inmate Anthony Sadler because of his inability to pay for copies of those records.

“The Open Records Act contains no provision for waiver of the prepayment requirements … and (the prison) did not violate the Act in denying Mr. Sadler’s request on the basis that he has insufficient funds in his inmate account to defray the cost of copies. The facility’s actions may work a hardship on Mr. Sadler but are consistent with the Open Records Act and the rule announced in Friend v. Rees,” decided by the state Court of Appeals in 1985.

The office also upheld the denial of a request for records of the Calloway Circuit Court Clerk, based upon a 1978 decision of the state Supreme Court that records held by the court system are not subject to legislative action. In 1998, the attorney general’s office interpreted that to mean court records are not subject to the Open Records Act.

State high court makes clear that contempt proceedings against jurors must be public

In a ruling that could clear up what it called "continuing confusion" among Kentucky judges, the state Supreme Court has ruled unanimously that criminal contempt-of-court hearings for jurors must be open to the public.

The court ruled that Susan Schultz Gibson, a circuit judge in Jefferson County, "should have allowed the public and media access to a contempt-of-court hearing for a juror" whom she suspected of violating her order to avoid publicity about the case last year, Jason Riley wrote for The Courier-Journal. He and the newspaper were the plaintiffs in the case.

"The ruling overturns a state Court of Appeals ruling that found the issue was moot, since the case was over and no one was asking for the hearing to be held again," Riley wrote. "The high court, however, said the issue must be settled so it does not reoccur." The newspaper's attorney, Jon Fleischaker, told Riley, “It's an important decision for the precise reason we were concerned it could happen again.” (Read more)

City must give plaintiff contracts, personnel files

A city-owned arena can't refuse to release information about its contracts and personnel just because that might put it and its contractor at a disadvantage with competing, private facilities, the attorney general's office ruled in a recent open-records opinion.

The records are being sought by Tad Thomas, attorney for Walter Richard Brotherton, who has filed a federal lawsuit against the city of Corbin, Victory Sports and the man who drove a motorcycle that struck Brotherton at a motocross event at The Arena Jan. 15, Michele Baker of the Corbin Times-Tribune reports.

Attorney General Jack Conway said the city failed to prove that the records are “generally regarded as confidential or proprietary” or that “disclosure would prevent an unfair commercial advantage to competitors” of Victory Sports. "The office also stated the City of Corbin violated the Open Records Act in denying access to public personnel files in their entirety," Baker writes. The city is considering an appeal to Whitley Circuit Court.

AG says Adair County hospital board violated open-meetings law , as newspaper alleged

Adair County Hospital's board of directors was wrong to hold a closed-session discussion about the future of an interim CEO because the discussion was about his retention, not posible discipline or dismissal, the Kentucky attorney general's office found. It also concluded the hospital board did not have sufficient cause to discuss a report by Spectrum Health Partners in private.

Adair County Community Voice Publisher Sharon Barton submitted a written complaint to the board chairman March 30 alleging the violations. To remedy the matter, she asked for a copy of the PowerPoint presentation that had been viewed during the meeting as well as any minutes, notes, records and any other documents that had been reviewed.

The board replied that it was "clearly entitled to discuss this issue in executive session" because it was a personnel issue and so exempt from public discussion.

Assistant Attorney General Amye Bensenhaver disagreed, saying the personnel exemption applies only to discussions that might lead to the appointment, discipline or dismissal of an employee, member or student. "This exception shall not be interpreted to permit discussion of general personnel matters in secret," she wrote. "The board acknowledges that the closed session discussion focused on securing the continued employment of the interim CEO and not on reviewing the comparative qualifications of competing applicants for the purpose of identifying the best qualified applicant to fill a vacant position. Although the potential for reputational damage exists where several individuals apply for a position and some must be eliminated based on their lesser qualifications, such potential does not exist where the discussion relates to the continued employment of a current employee."

Bensenhaver also said the board should not have discussed the Spectrum report in closed session. The board was obligated to give notice "in regular open meeting ... of the general nature of the business to be discussed in closed session," she wrote. In correspondence, the board said that the report "contained information on specific individuals that might lead to discipline or dismissal" or might lead to litigation. "Even with this additional information, we believe the board's ... compliance fell short of the statutory requirements," Bensenhaver wrote on behalf of Attorney General Jack Conway.

AG says U of L physician groups tied to Passport must release salaries, other financial data

Two groups representing the University of Louisville's faculty physicians have been deemed public agencies and are subject to the state open-records law, Attorney General Jack Conway has ruled. He said the groups violated the Open Records Act when they denied a request by The Courier-Journal's Tom Loftus for five years' worth of records showing employee salaries, sources of income and expenses. U of L doctors have a majority on the board of Passport Health Plan, which manages the Medicaid program for Jefferson and 15 surrounding counties.

The matter concerns the University Physicians Association and the University of Louisville Physicians. In December, Loftus requested the salary and expense documents after state Sen. Tim Shaughnessy of Louisville, right, asked the state Cabinet for Health and Family Services to "examine the flow of Medicaid funds from the state through Passport to UPA," Loftus writes. State Auditor Crit Luallen did not look into the issue in her November report, which pointedly criticized Passport for excessive spending and conflicts of interest.

Though the physician groups contended they were non-profit corporations, Conway said UPA is a public agency "because it was established and created, and is controlled, by the University of Louisville School of Medicine," Conway concludes. "In all material respects, ULP mirrors UPA in the manner of its establishment, creation and control ... We are not prepared to casually dismiss these facts as 'coincidence born of practicality,' and instead find that ULP and the School of Medicine 'act as one and the same.'"

In its articles of incorporation, UPA says its mission is "to further the research mission and teaching of the praction of medicine at the University." Moreover, UPA and ULP were established and continue to be run by U of L medical school administrators, department chairs and professors. "We agree with The Courier-Journal that the suggestion that these physician administrators and/or professors, each the chair or interim chair of their respective medical school departments, came together of their own accord, and as private actors to establish and create UPA defies logic."

Shaughnessy was impressed with the findings. "It causes me to ask: How could they think they are not a public entity? What remains to be seen is whether the university accepts this ruling or continues its arguments that it is not subject to public openness." (Read more)

Budget deal hits federal transparency websites

"Government transparency websites likely will be scaled back or even eliminated as a result of a 75 percent budget cut that congressional leaders and the White House agreed to last week," William Matthews of GovExec.com writes for National Journal.

The $34 million Electronic Government Fund, being cut to $8 million, "supports websites such as http://www.usaspending.gov/ and the IT Dashboard, which provide public access to vast amounts of information on how the government spends money," Matthews writes. "Another transparency site, http://www.data.gov/, also is endangered, transparency advocates said. The site offers access to 380,000 government agency data sets as diverse as climate change statistics and export licensing records." (Read more)

Two Danville city commissioners walk out during closed session, refuse to comment

Two Danville city commissioners walked out of a closed-door meeting last night, leaving the other two and the mayor to discuss a personnel matter that the absentees either didn't want discussed or thought should be discussed in public.

Kevin Caudill and J.H. Atkins, who voted against holding the closed session, left it after 45 minutes and "refused comment on either the purpose of the meeting or their reasons for leaving," David Brock reports for The Advocate-Messenger. "When the remaining commission members returned from executive session about 20 minutes later, no action was taken."

The Advocate-Messenger quoted from the personnel exception to the state Open Records Act: “Discussions or hearings which might lead to the appointment, discipline or dismissal of an individual employee, member or student without restricting that employee’s, member’s or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.” Then the paper added in conclusion: "The lengthy closed-door session was not the first in which one of the stated subjects was possible firing and no action was subsequently taken." To read the full story, click here.

National open-government blog is started

Charles Davis, associate professor of journalism at the University of Missouri, has started a blog about freedom of information and open government, and is updating it several times a day. Davis is a former executive director of the National Freedom of Information Coalition. The blog is The Art of Access.

Passport Health Plan drops secrecy; governor calls on corrections non-profit to do likewise

Passport Health Plan, the managed-care organization for Medicaid in the Louisville area, announced today that it would no longer fight to keep its records secret, deciding not to appeal a ruling by Attorney General Jack Conway that it had to give records to The Courier-Journal because most of its money comes from the state.

"The announcement came the same day Gov. Steve Beshear said he wants Dismas Charities Inc., a halfway-house company that stymied a state audit by refusing to fully release its financial information, to open its records as well," reports Deborah Yetter of the Louisville newspaper, which "has published stories detailing questionable spending by both Passport and Dismas, and legislators and state officials have demanded greater accountability from both." Louisville-based Dismas says it gets 22 percent of its funds from the state, 3 points short of the threshold for being subject to the open-records law.

Passport's interim CEO, Mark Carter, said in an article on the paper's op-ed page that the decision "was not based upon legal advice but was made as part of the continuing evolution, perhaps even transformation, of the plan." He said state Auditor Crit Luallen's scathing report on the plan "has served as a very beneficial wake-up call to our organization."

Luallen "was rebuffed in her attempt to audit Dismas," and yesterday "said outside companies that do state business must be held accountable for their use of tax dollars," Yetter writes. Today the state issued a request for proposals to expand Medicaid managed care to other parts of the state. Luallen told Yetter, “I think if government is going to privatize services … we have to have a higher level of accountability, not a lower level of accountability.” (Read more)

AG tells Kentucky Retirement Systems to reveal its salaries, which even its board doesn't know

Attorney General Jack Conway told Kentucky Retirement Systems administrators yesterday that it must reveal how much employees are paid. They had refused a Feb. 10 request by Eva Smith-Carroll of Frankfort for "current payroll records."

“All the other state employee salaries are posted online. It wasn’t clear to me why this one agency should not have to disclose the size of its salaries,” Smith-Carroll told John Cheves of the Lexington Herald-Leader, who writes: “Robert Wilcher, a member of the KRS board of trustees, said he and his colleagues hadn’t heard about the case until after KRS management denied Smith-Carroll’s request. KRS executives have not disclosed their pay to the board, either, Wilcher said.”

Because it deals with open records, Conway's opinion has the force of law, but the retirement systems can appeal it to Franklin Circuit Court within 30 days. "KRS general counsel Schuyler Olt declined to comment Tuesday," Cheves writes. UPDATE, April 22: The salaries have been posted online, Cheves reports: "The new board chairwoman, Jennifer Elliott, on Friday said the board insisted that KRS salaries be posted online as quickly as possible." Elliott told Cheves, “We had not previously been aware that the system failed to turn over this information when requested. The board as a whole wants us to be transparent.”
UPDATE, April 7: One salary just became moot. In an apparently unrelated move, the KRS board fired its executive director and elected a new chairman, reports Tom Loftus of The Courier-Journal reports.

AG says Bowling Green should have given paper names of applicants for commission seat

Attorney General Jack Conway has ruled that Bowling Green officials should not have kept secret the names of people who wanted the City Commission to appoint them to a vacant seat on the commission, which has since been filled.

The opinion was issued to the Bowling Green Daily News, which wanted the names before the seat was filled and appealed the denial to Conway. In its story, the newspaper highlighted the reasoning of Assistant Attorney General Amye Bensenhaver: “The public interest in the identities of persons seeking appointment to elective office is often greater than that of the public interest in the identities of persons seeking public employment,” which may be considered confidential.

The city argued that making the applicants' names and resumes public “may work to prevent others from submitting resumes should this process be followed again,” but the attorney general's office said the applicants “forfeited a greater measure of their personal privacy when they ‘threw their hats in the ring’.” For the story on Conway's decision, by the Daily News' Andrew Robinson, click here.

Inmate wins one, loses one in open-records cases; AG reminds agency of its responsibilities

An inmate at the Kentucky State Reformatory at LaGrange was unfairly denied access to a record he requested, according to an opinion issued March 14 by the attorney general's office. The same inmate lost another appeal because the office found no evidence that the record he requested exists -- a common reason for denying open-records appeals. But his winning case reminded agencies they they may have to look in more than one place for records that are requested.

Uriah Pasha sought copies of reports related to an incident that resulted in his segregation from other inmates. The reformatory and the Justice Cabinet denied his request, saying no such reports existed in his institutional file. However, the attorney general's office found that the state's Corrections Policies and Procedures manual provides that an “alleged violation of rules and regulations shall be fairly processed,” and that the “inmate’s due process rights shall be fully protected,” and the cabinet later acknowledged that a corrections officer filed a report on the incident. In its decision, which has the force of law, the attorney general said Pasha is entitled to a copy.

The decision said the reformatory's "response was deficient insofar as it failed to acknowledge the existence of at least one arguably responsive record, and the cabinet only partially mitigated this error in its supplemental response. It is incumbent on KSR to conduct a search for responsive records that extends beyond Mr. Pasha’s institutional file and to provide him with any nonexempt responsive records that search yields. If the search yields no additional responsive records, it is incumbent on KSR to so advise Mr. Pasha and to provide a plausible explanation for the nonexistence of records contemplated by its own policies and procedures."

In the other appeal, the attorney general found no evidence that the records Pasha sought, a behavior control report supposedly written by a staff psychologist, existed. A public agency is not required by the Open Records Act to create records that do not exist to meet a citizen's request. Many inmate appeals are rejected on these grounds, but Pasha's successful appeal is a reminder that public agencies have a responsibility to look for records and, if they do not exist, explain why.

The text of any open-government decision by the attorney general is available via the link at the bottom of the KOG Blog.

Judge rules Passport managed-care plan for Medicaid is subject to Open Records Act

As Kentucky prepares to put more of its Medicaid program under a managed-care system to save money, a judge has ruled that the contractor running the program's only managed-care plan is a public agency subject to the state Open Records Act.

Ruling in a lawsuit filed by The Courier-Journal, Jefferson Circuit Judge Susan Schultz Gibson wrote, "Since Passport exists for the purpose of administering the Medicaid program on behalf of the Commonwealth, the sought records all appear to relate to Passport’s state-related operations."

Passport, which can appeal the ruling, declined to comment. A consortium of Louisville-area hospitals, physicians and other health care providers, it serves about 165,000 poor and disabled Medicaid patients in 16 counties in the Louisville region under a $740 million annual contract. The state administers the program but most of its money comes from the federal government.

"While it has been praised by lawmakers for providing good care and saving the state money, it came under fire last year after a critical audit by state Auditor Crit Luallen," Deborah Yetter writes for the Louisville newspaper. "The audit blasted Passport management for spending on meals, travel and lobbying, and it questioned the transfer of about $30 million in reserve funds to University Hospital and other physician groups and hospitals involved in Passport operations." (Read more)

Family-services cabinet gets a runner-up national Black Hole Award for secrecy

The state Cabinet for Health and Family Services' insistence on secrecy about deaths of childred for which it has responsibility has made it a runner-up in the Society of Professional Journalists' new Black Hole Award. SPJ says it created the award "to highlight the most heinous violations of the public's right to know." The award went to the Utah Legislature, which excluded electronic records from the state open-records law.

SPJ says the cabinet "has embarked on a campaign of obfuscation aimed at preventing the public from learning the details about the death of a toddler under the cabinet’s supervision. . . . The infant died in May 2009 after drinking drain cleaner at what police have described as a methamphetamine lab." SPJ notes that the cabinet "has a blanket policy of refusing to disclose all information in child abuse and neglect cases" and quotes Franklin Circuit Judge Philip Shepherd, who said its bias in favor of confidentiality seems to be driven more by the culture of the agency, "which seeks to avoid public scrutiny," than by the law.

The cabinet failed to conduct an internal review of the death, as required by law. The Courier-Journal and the Lexington Herald-Leader asked Shepherd to require the cabinet to produce related records; most of what the cabinet produced was redacted, and the judge ordered it to return with the entire unredacted record so that he could decide what would be released. Then the cabinet issued emergency regulations with the force of law to restrict access to such records. The papers filed suit again, asking Shepherd to strike down the regulations and order the cabinet to release the records. The cabinet has petitioned to move the lawsuit to federal court, arguing that federal law prohibits the cabinet from releasing information about children who die in its care. SPJ asks, "What is more egregious than a state government refusing to provide answers to the people of the state about the death of a child in its custody?"

Obama administration failing to meet open government goals, Knight survey finds

The Obama administration is failing to fulfill its promise of improving Freedom of Information responsiveness by federal agencies, according to a Knight Open Government Survey by the National Security Archive, released March 13 for Sunshine Week.

In a news release, the Knight Foundation reported that fewer than half of the federal agencies have complied with a presidential memorandum Barack Obama signed in January 2009 instructing federal agencies to “usher in a new era of open government.”

The Knight Open Government Survey found that 49 of the 90 agencies had made concrete changes in their procedures to process requests for government records covered by the Freedom of Information Act. A year earlier, the number was 13. The news release said after the 2010 survey was released "The resulting national headlines sparked a new White House call to all agencies to show concrete change."

“At this rate, the president’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office,” commented Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, which funded the study. “Freedom of information laws exist to help all of us get the information we need for this open society to function. Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws.”

Read the entire report here.

Sunshine Week is March 13-19

Sunshine Week, the annual event that reminds Americans of the virtue of open government, citizen access and oversight, and journalists' role in keeping citizens informed about their governments, is in progress. Promotional materials for Sunshine Week are donwnloadable at http://www.sunshineweek.org/. They include logos, editorial cartoons, other graphics and op-ed pieces on freedom of information and open government.

West Virginia Legislature sends governor a shield law that protects student journalists

Our adjoining state of West Virginia is on the verge of getting a reporter's privilege law, which journalists usually call a shield law. The state legislature passed the bill over the weekend and sent it to Gov. Earl Ray Tomblin. The state has been one of several in which journalists can cite previous court decisions, but not a statute to avoid revealing sources to which they have promised confidentiality. The District of Columbia, Kentucky and 38 other states have shield statutes; only Wyoming has no reporter's privilege in its Constitution, court decisions or statutes.

"The measure provides West Virginia reporters with a qualified reporter's privilege to refuse to disclose confidential sources, and documents that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings," says the Reporters Committee for Freedom of the Press. With on exception, the law does not protect unpaid journalists; it defines "reporter" as someone who gathers and disseminates information to the public "for a portion of the person's livelihood."

The exception is that the law does cover student journalists. "This language puts West Virginia at the very forefront of the country in recognizing the value of student journalism and the importance of protecting students who are increasingly doing professional-caliber work," said Frank LoMonte, executive director of the Student Press Law Center. For background from the Reporters Committee on West Virginia case law and the bill's path through the Legislature, click here.

States can't reveal drug costs because federal law makes them secret; Montana governor blames drug lobby, Ky. contractor

When Montana journalists asked Gov. Brian Schweitzer to reveal the prices the state pays for drugs in government health care programs, he said he wanted to tell them, but had to refuse because federal law keeps the information secret. Congress is "bought and paid for" by drug manufacturers, said Schweitzer, a conservative Democrat with a maverick streak. "Congress has created a system so that even the states, which buy tens of millions of dollars worth of these drugs, have no idea what we pay on a per-unit basis."

"Actually, Schweitzer does know what the state pays — but, before acquiring the information last summer, had to have his chief counsel sign a written agreement not to disclose it publicly," Mike Dennison of the Billings Gazette reports. "Schweitzer said the drug industry wants to keep secret the rebates it gives to states buying drugs for public programs, because it doesn't want regular retail customers to know how much more they're paying for drugs."

Schweitzer obtained the information last summer when he was trying to compare what the federal-state Medicaid program for the poor and disabled was paying for drugs compared to the cost in Canada. Montana news outlets argued that the state open-records law requires him to release "documents in his possession that list public money paid out or received by the state," Dennison reports. But the governor's chief legal counsel "said federal law bars disclosure of the information requested by the news organizations, and that federal law pre-empts Montana's open-records laws."

Also, "Magellan Medicaid Services, the Virginia-based contractor that negotiates additional drug rebates for the state Medicaid program, also claimed that the rebate information is a trade secret protected from public disclosure," Dennison reports. MMS, which works for several states including Kentucky, said revealing the information would hamper its ability to compete with other companies doing the work." It seems to us that if all such information from all states were released, that wouldn't be a problem.

Let's observe Sunshine Week March 13-19

It's time to plan your observance of Sunshine Week, the annual event that reminds Americans of the virtue of open government, citizen access and oversight, and journalists' role in keeping citizens informed about their governments. Today we saw a new way to make readers, listeners and viewers remember it.

"It may be just a coincidence but the combination is apropos: Sunshine Week begins Sunday, March 13, the same day that Daylight Saving Time returns," the Arkansas Publishers Association notes in its latest Arkansas Publisher Weekly. Perhaps Sunshine Week could be promoted in conjunction with the annual reminder to move clocks forward.

Sunshine Week has coincided with the start of DST since a change in the federal time law a few years ago. The week has been built around national Freedom of Information Day, March 16, the birthday of James Madison, our fourth president and author of the First Amendment.

Promotional materials for Sunshine Week are donwnloadable at http://www.sunshineweek.org/. They include logos, editorial cartoons, other graphics and op-ed pieces on freedom of information and open government.