Appeals court allows Christian County cops to keep identifying information on police reports secret

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints," including people charged with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.) Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers," Brown writes. "The newspaper did not dispute the practice of withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating inaction as opposed to action,” he said. “The way you investigate inaction is to go to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests," Brown reports. "This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims. I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.” (Read more)

Paul objects to FCC proposal to make stations put political advertising information online

Many elements of the Tea Party have been outspoken in favor of government transparency, but for the U.S. senators most identified with the movement, that does not extend to making political television expenses more accessible to the public.

Sens. Rand Paul of Kentucky (right), Pat Toomey of Pennsylvania, Jim DeMint of South Carolina and Mike Lee of Utah "have asked the Federal Communications Commission to reconsider its proposal to have TV stations put their political files online," reports John Eggerton of Multichannel News. They were joined by Roy Blunt of Missouri and John Boozman of Arkansas.

The political files, which show who buys the time, how much and when, must be made available for public inspection at a station or cable-company office during regular business hours. The FCC is expected to approve April 27 on a regulation that would require stations in major markets to put the information in an online database. "Broadcasters argue . . . that to maintain an online, real-time system would cost staff time and money better spent on local news and other public service," Eggerton writes.

OPINION: That money could also be spent on executive salaries, shareholder profits or some other thing besides public service. In their letter, the senators said the proposal would carry "heavy compliance costs," but as someone who has inspected many of these files at stations, and is familiar with how the same information is already maintained electronically, it's hard for me to imagine that the compliance costs would be very high. And putting them online would make them much more accessible to rural journalists. –Al Cross, director, Institute for Rural Journalism and Community Issues

UPDATE, April 9: Because of complaints from stations, "The proposal will give smaller stations two more years to start uploading new additions to their files about political ad spending. At the outset, only the affiliates of ABC, CBS, NBC and Fox in the top 50 TV markets will be required to do so," reports Brian Stelter of The New York Times. "The FCC says the initial uploading will cost less than $1,000 for a typical station, and will save the stations money over time by avoiding printing and storage costs. The uploaded files will be searchable — but only inside one file at a time." (Read more)

Corie Wright, senior policy counsel for Free Press, which supports online posting, told Eggerton, "It's baffling that these senators would want to hide public information in dusty filing cabinets when it could be made available to their constituents via the Internet. The public wants and needs to know who's trying to influence them over the public airwaves -- and the FCC appears to be doing the right thing by bringing this antiquated system into the 21st Century."

Eggerton notes, "Putting the political files online is part of a larger FCC effort to move station public files online and into a database managed by the FCC that is more easily searchable by the public." (Read more)

Harrodsburg police officer stingy with information about fatal traffic accident

Five days after a traffic accident killed a prominent Mercer County farmer who was driving his tractor, a Harrodsburg police officer refused to release most details about it, citing moral grounds and a promise to the family of the 21-year-old driver of the other vehicle that "he would keep their son’s name out of the media until after his investigation was complete," Todd Kleffman of the Advocate-Messenger in Danville reported Wednesday.

Only under orders from Police Chief Billy Whitenack did Officer Jeff Pearce identify the 21-year-old as  William Phillips of Boyle County. Pearce still refused to release the name of a passenger in Phillips' vehicle or say what type of vehicle it was. "On Saturday, Mercer County Deputy Coroner Chuck Bugg said the driver of the second vehicle was airlifted from the scene but was unsure of the person’s identity or extent of the injuries," Kleffman reported. Bugg also identified John "Van" Landrum as the decedent "after Harrodsburg police released a statement saying only that one person died as the result of a two-vehicle collision on US 127."

State police are not involved in the investigation. "Pearce said he would not release any more information on the crash until after his investigation is complete, which he said could take between 10 days and a month," Kleffman reported. "Pearce told a reporter releasing information about the crash went against his morals. He also said he promised Phillips’ family he would keep their son’s name out of the media until after his investigation was complete." (Read more)

Bill that would limit release of child-abuse information appears to be dead with one day left

A bill that could increase secrecy of child-abuse records at the Cabinet for Health and Family Services failed to win passage on the next-to-last day of the legislative session and appears to be dead. "Senate Majority Leader Robert Stivers, a Manchester Republican, said some senators had questions about the bill and it appears unlikely to pass," Deborah Yetter of The Courier-Journal reports.

Senate Bill 126, originally a social-work licensing bill, includes in its Section 10 provisions of House Bill 200 to "create an outside panel of experts to review child deaths and serious injuries, with the goal of better detecting those that result from abuse or neglect. It also would create an outside office to review continuing operations of the state’s child welfare system," Yetter writes. "And it would clarify the definition of child abuse to spell out that any adult living in the home or a sibling older than 16 could be considered a perpetrator of abuse.

The bill would also limit what the cabinet must disclose about child-abuse deaths and serious injuries as a result of child abuse, so the Kentucky Press Association lobbied against it. One portion of the bill would prohibit the cabinet from releasing "the name or any identifying information of a child who has suffered a near fatality, or any information on a sibling or children living in the home of the child who suffered a fatality or near fatality," which is defined as an injury that places a child in serious or critical condition.

KPA counsel Jon Fleischaker, chief author of the state Open Records Act, testified before a Senate committee that if the measure had been law when Amy Dye, a 9-year-old Todd County girl, was killed by her adoptive brother, the public may have never known about her death, or that the brother confessed to killing her.

Westrom told Yetter the cabinet insisted on the language. The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information, and the cabinet has appealed. For Yetter's story, click here.

Legislature OKs bill to let county clerks to charge 50 cents a copy, ban scanners, cameras and such

The Kentucky General Assembly has passed and sent to Gov. Steve Beshear a bill that would allow county clerks to charge 50 cents for a copy of any record they have and to ban devices that could be used to make electronic copies in their offices.

The bill would overturn current law, based on the Open Records Act and an attorney general's decision, that limits the cost of copies to the direct cost of producing them, generally no more than 10 cents per page. It would also allow clerks to ban "scanners, cameras, computers, personal copiers, or other devices that may be used by an individual seeking a copy of a document maintained by the clerk."

Those measures were included in a bill that otherwise dealt with delinquent taxes. It was titled "An act relating to governmental revenue functions and declaring an emergency." The emergency clause means the bill would become law when Beshear signs it. If he vetoes it, his veto would appear likely to be overridden when the legislature returns April 12; the Senate passed the bill 37-0 and the House agreed with a minor change and repassed the bill 83-6.

Those voting against the bill were Reps. C.B. Embry, Mike Harmon, Jim Wayne (the only Democrat), David Floyd, Stan Lee and Addia Wuchner. The Kentucky Press Association lobbied against the bill.

Conway says AD district board violated meetings law in dispute between Lewis County officials

Attorney General Jack Conway has ruled the Buffalo Trace Area Development District board violated the state Open Meetings Act in using anonymous paper ballots to elect a citizen member to the board form Lewis County on Feb. 21, Marla Toncray reports for the Ledger Independent of Maysville.

The issue was raised by Lewis County Judge-Executive Thomas Massie, who is running for the Republican nomination for Congress in the 4th District.

Massie filed a complaint with board Chairman Bill Boggs Feb. 28, alleging that Vanceburg Mayor Todd Ruckel and other board members "conducted private conversations with board members in advance of the Feb. 21 meeting to secure the election of the mayor's nominee and defeat the election of the judge's nominee," Toncray reports. Conway did not reach a conclusion on that point, citing "the conflicting evidentiary record."

Massie wrote, "No notice of appointment of a board member was placed on the agenda for the Feb. 21 meeting, yet some members carried proxy votes for absentee members to the meeting." He also "alleged that the board improperly conducted the election by paper ballot rather than by roll call vote, that the paper ballots were reviewed by only three members of the board, and that the vote count was not announced," the decision says.

Boggs said the vote was conducted by paper ballot after a motion for a roll call vote failed for lack of a second. He said the district's bylaws "do not prescribe the means of conducting the election." But Conway's decision noted that the open-meetings law and past decisions require "a public vote of the members in attendance and a record of how each member voted."

Toncray reports, "Massie said Thursday BTADD board members were trying to avoid transparency and then followed the statement by asking how much public business is being conducted in secret at BTADD meetings." Massie told her, "Back room dealings were going on. Our citizens deserve full transparency and protection from these kinds of acts. That's why I filed the complaint." (Read more)

Senate kills, House revives moments later a bill that would curtail child services transparency

A bill opposed by the Kentucky Press Association that could increase secrecy at the Cabinet for Health and Family Services died in a Senate committee on Tuesday then was revived minutes later in the House of Representatives.

House Bill 200, legislation sponsored by Rep. Susan Westrom, D-Lexington, was defeated in the Senate Health and Welfare Committee. Moments later, in what Courier-Journal reporter Deborah Yetter reported was a pre-arranged move, she walked to the bill to the House State Government Committee, where it was added to a different bill and passed unanimously.

Critics of the measure, who say it would sharply curtail public access to details of child-abuse deaths and serious injuries, were outraged, saying the bill gives the cabinet more power to withhold information.

“It’s a secrecy bill,” David Thompson, executive director of the Kentucky Press Association, told the Courier-Journal. “They have played right into the hands of the cabinet.”

Media attorney Jon Fleischaker testified the Senate committee about concerns over the lack of transparency the bill has for cabinet oversight, even though supporters were pushing it as a transparency bill. Portions of the bill would allow the cabinet not to release the county where a death or near-death occurred, nor the name of the hospital where the child was taken.

Fleischaker, an author of the state's open government legislation, testified that if this bill had been in force when Amy Dye, a 9-year-old Todd County girl, was killed, the public may have never known about her death, or that a 17-year-old sibling was charged with, and then confessed to, killing Amy. He's now serving a 50-year sentence.

The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information.

For more on this story, see Deborah Yetter's story here.

Cabinet appeals judge's order that it pay civil penalties and newspaper's legal fees

The state Cabinet for Health and Family Services has appealed a judge's order telling it to pay more than $6,000 in civil penalties and nearly $10,000 in attorney fees for acting in bad faith in resisting release of files related to Amy Dye, the 9-year-old Todd County girl who was murdered by her foster brother last year.

Franklin Circuit Judge Phillip Shepherd ruled that the Todd County Standard was entitled to the fees and fines because the agency violated the state Open Records Act. "That ruling and others like it for the Louisville Courier-Journal and Lexington Herald-Leader are thought to be the first time a state agency had been fined for violating the open record laws since they were adopted in the 1970s," the Standard reports.

"The agency at first denied even having any records on Dye then said it did not have to give the records to the Standard because Dye was killed by a sibling and not a parent," the paper notes.

Perry judge-executive acknowledges fiscal court sometimes ignores Open Meetings Act

The Perry County Fiscal Court has acknowledged violating the Kentucky Open Meetings Act by conducting unannounced meetings because, in the words of Judge-Executive Danny Ray Noble, it is for the good of the county.

“Sometimes we do break the Sunshine Law because we have to,” said Noble at the fiscal court meeting in Hazard Wednesday, according to a story in the Hazard Herald.

The Herald story reported Noble said during the meeting Wednesday that the court would meet with an engineer later in the day outside the official meeting, with a quorum present, to discuss water issues in the county. He noted that the engineer was unable to make the meeting Wednesday morning.

Noble said the court sometimes holds unannounced meetings so magistrates can discuss issues and agree on action before a vote is taken during a regular meeting. He said that he believes this makes them more efficient in public meetings.

The open meetings law, enacted in 1974 and amended in 1992, requires that the "the formation of public policy is public business and shall not be conducted in secret."

The law requires that regular meetings must be scheduled at specified times and places which are convenient to the public, and that notice must be given of regularly scheduled meetings and of special meetings not on the regular schedule, which must be adopted and published.

The law forbids elected officials from meeting secretly unless the legislative body first meets publicly, votes to go into closed session by defining the nature of the discussion, and cites a specific exception in the law that allows a closed session. Typically, the most cited exceptions involve specified personnel issues, a threatened or actual lawsuit or the purchase or sale of property. No votes can be taken in a closed session.

Meeting privately to come to predetermined decisions deprives the public of the debate on important policy matters, an abridgment of citizens' role in a democracy. The Kentucky Supreme Court in 1997 ruled that “The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions.”

Citizens who believe a public agency has violated the open meetings law may file a complaint with the presiding officer outlining the perceived violation and suggesting a corrective course. If the agency denies the complaint, citizens can file the complaint with the Kentucky attorney general, whose ruling has the force of law until appealed to circuit court.

Read the Herald story here. In an editorial, the weekly newspaper called for a halt to the practice, saying the fiscal court was "doing the residents of Perry County a great disservice."

House passes bill allowing county clerks to charge up to 50 cents a page for copies of any record

The state House has passed and sent to the Senate a bill that would allow county clerks to charge up to 50 cents per page for paper copies of any record and let them ban scanners, cameras and other devices that could be used to make electronic copies. An attorney general's opinion limits the charge to 10 cents per page unless the actual cost of producing the copy is greater.

The Kentucky Press Association supported a floor amendment Friday to remove the relatively short provision from the bill, a lengthy measure that otherwise deals with delinquent taxes. The floor amendment lost 73-15 and the bill passed 77-13, indicating that members of the Kentucky County Clerks Association had lobbied it well. For roll-call votes, click here.

KPA Executive Director David Thompson said the group is working with the clerks' association on an amendment "that would make the language specific to certain recorded documents and not generally all public records. Our plan is to amend it in the Senate. We do not want to kill the bill because for 99 percent of the legislation, it's changes in the property tax/delinquent taxes that county clerks need. We have no problem with that part. So we continue seeking changes only in one section that will make it acceptable to the public and the press and then we'll leave them alone."

The importance of the bill to the clerks could be indicated by its title, "An act relating to governmental revenue functions and declaring an emergency." Such a broad title could make it a vehicle for other types of amendments.

Ironically, the bill passed during Sunshine Week and on the 251st birthday of James Madison. For a copy of it, click here.

Weekly newspaper conducts open-records audit of local public agencies

One of the more ambitious Kentucky projects during Sunshine Week, the annual observance that highlights the importance of open government, was a local records audit by the Adair County Community Voice in Columbia. The weekly newspaper engaged eight "average citizens" to seek specific records from eight public agencies and published the generally good findings in last week's paper, with an explanation of the audit and the issues, and an editorial by Editor-Publisher Sharon Burton giving her motives.

Burton wrote that since she started the paper 10 years ago, "We have seen a dramatic improvement in the understanding for openness and the cooperation we receive, so "We didn't do it to harass or put local officials on the spot," but rather "to get a better idea of where we are and where we need to continue educating and informing public officials and the public about the role of government."

The audit found the least cooperation when it asked local law-enforcement agencies for salary information. Burton told us in an email, "Our sheriff's department provided a copy of salaries with the names marked out. Numbers only. lol. Then the secretary called and said we made them sound bad. Love this job." The sheriff's department claimed that the auditor said he didn't need the names; "The auditor said he didn't specify that he needed the names," the story by Burton and Allison Hollon reports. The Kentucky State Police didn't reply to a mailed request.

The Voice does not put most news stories online, but we have posted its front page, Page 2 and Page 3 on the site of the Institute for Rural Journalism and Community Issues. If your newspaper conducted an open records audit for Sunshine Week, please let us know so you can be recognized, too.

Open-records requests: One weekly tells how, another suggests its competitor does it too much

Sunshine Week, which ended yesterday, is designed to increase public awareness of the value of open government and efforts to keep it open. In Kentucky, at least one weekly newspaper made a special effort to spotlight the observance and its issues, noting inconsistency in what local government offices charged for copies of public records. Three counties to the east, another weekly made no mention of Sunshine Week, but created an unusual spectacle of raising questions about open-records requests made by the local, competing daily.

When a woman asked him if the sheriff could charge $5 for a five-page report, Editor-Publisher Ryan Craig of the Todd County Standard in Elkton surveyed his public agencies and reported, "Most of the public offices in Todd County are overcharging for public records." The sheriff''s proposed fee exceeded the allowable 10 cents per page by $4.50. Local police charge 25 cents a page. That's also the figure charged by court clerks. The courts have exempted themselves from the state Open Records Act, but media lawyer Jeremy Rogers told Craig that the fee may have prompted overcharging by agencies that are covered. Craig's story ended with a walk-through of how request records, and how to appeal to the state attorney general's office if a request is denied. The Standard is not online, but the pages with the story are here.

Publisher Jeff Jobe of the weekly Barren County Progress in Glasgow is in competition with the Glasgow Daily Times, as was evident from the top story in Tuesday's edition. The subhead reported that the Times had targeted the city police department since the hiring of a new chief. Most of the front-page story, which also consumed most of an inside page, was a listing of the requests in 2010 and 2011, only one made by the Progress.

"In recent weeks there have been numerous local concerns about the number of open-records requests made to certain agencies, along with speculation about the nature of those requests," the story said, without saying who was concerned or what the speculation was. Jobe filled that vacuum in an editorial, saying the Times appears determined to prove its opinion that the Chief Guy Turcotte is not worthy of the office. "Perhaps someday the GDT will hit pay dirt and Turcotte will go down in flames, but I am certain that with each open-record request that does nothing more than cost the city time in preparing documents, their requests come closer and closer to being considered nothing more than a 'Witch Hunt'." The Progress is mainly behind a pay wall, but we have scanned and posted the editorial here.

Rockcastle County 911 Board failed to prove harm in releasing tape and dispatch log

The Rockcastle County 911 Board violated the state Open Records Act by failing to prove that a tape and dispatch log were exempt from disclosure, the attorney general's office has ruled.

In originally denying the request, the board indicated that the records were “unavailable because of an ongoing investigation.” While this is a valid reason for exempting a public record under KRS 61.878(1)(h), the board did not cite the statute in its denial (violation of the procedural requirements) and also failed to prove that release of the record would harm the Mount Vernon Police Department (violation of the substantive requirements).

After privately reviewing the tape and dispatch log, the attorney general’s office confirmed that the records were of radio communications concerning a traffic stop. However, because the records only contained general information and not primary evidence, the office decided that disclosure would not weaken the board’s case, hinder its investigation, or taint the jury pool. It said the board did not overcome the presumption in the act that records are public.

Kentucky State University joint regent committees failed to follow provisions of Open Meetings Act

The attorney general's office has upheld an appeal by The State Journal of Frankfort and reporter Katheran Wasson that committees of the Kentucky State University Board of Regents violated the state Open Meetings Act earlier this year.

The Finance and Administration Committee and the Audit Committee jointly held a closed session meeting on Jan. 27 to discuss an external audit. Before entering the closed session, the committee failed to pass a formal motion to go into closed session and cite the reason for the session, as required by the act.

Wasson submitted a written complaint describing the violations to the presiding officer of the meeting, Charles Whitehead. In her complaint, she requested that the full board acknowledge, in writing, that the closed committee session violated the law. She also requested that “members of the Finance and Administration and Audit Committees make public any notes, minutes or recordings taken during the closed session," and if no such records were created, Whitehead" make a public, written statement of what transpired during the closed session and what was discussed in detail." Finally, Wasson asked that the board "vow, in writing, to never meet in closed session again without citing a specific statute and taking a formal vote" and that a written statement to this effect "be shared with all members, in case they ever find themselves serving as chairperson of a committee or presiding over a meeting."

Under state law, [KRS 61.815(1)(b)] the following are required as conditions for conducting closed sessions: Notice must be given in an open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific exception authorizing the closed session; closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; no final action may be taken at a closed session; and no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

According to Wasson's transcript of her recording of the meeting, Whitehead said, "I’d like to take this committee into closed session so that, so that, so that – I usually do this, just to hear from the auditors, just so that they can say anything that they might want to say. Can we do that?" Wasson said one committee member then looked at Lori Davis, the university’s general counsel, who approved.

Regents Chairwoman Laura Douglas denied the meeting was illegal and rejected Wasson's remedial steps, saying the committee closed the meeting under an exception that allows closed discussion of on threats to public safety. Attorney General Jack Conway ruled that the exception was clearly inapplicable and the meeting was illegal.

Bill would shield some holders of competitively procured contracts from open-records requests

A state House committee voted yesterday "to change the Kentucky Open Records Act to make private the records of some organizations doing business with government," John Cheves reports for the Lexington Herald-Leader. "Presently, any organization that gets at least 25 percent of its revenue from local or state government must share some records under the act, which is meant to bring transparency to public spending." House Bill 496 would exclude from the calculation money from contracts "obtained through a competitive public procurement process."

The bill's sponsor, Rep. Johnny Bell, D-Glasgow, said it was prompted by letters that Glasgow lawyer John Rogers has been sending highway contractors, who depend largely on state government. Rogers didn't return Cheves's call for comment, but "One of the companies that Rogers has asked for records, Hinkle Contracting Co. of Paris, has alleged in a letter to Attorney General Jack Conway that Rogers is working on behalf of a company called Utility Management Group," which runs Pike County's water and sewer systems. "Conway's office ruled in September that UMG is a public entity under the Open Records Act and must disclose spending information. UMG is appealing in Pike Circuit Court."

Buckner Hinkle Jr. of Hinkle Contracting told Cheves that Rogers is trying to "goad other contractors to support UMG" in the lawsuit. "Bell said he is not involved with UMG, and his bill is not intended to protect UMG from public disclosure," Cheves reports.

Kentucky Press Association Executive Director David Thompson said KPA does not oppose the bill because Bell changed it to say that the 25 percent rules applies to any fiscal year, not "the current fiscal year." Current law leaves that point unclear.

Zambia looks to Kentucky for help in passing a Freedom of Information Act

Kentucky’s Open Records Act "may serve as a model for one being drafted in Zambia, a longstanding democracy in Southern Africa," University of Kentucky journalism professor Kakie Urch reports on bluecoast live, the blog she runs for UK students' multimedia projects.

Eight Zambians interested in freedom of information visited Frankfort Monday as part of a State Department-sponsored trip to the U.S. On Friday, they had meetings in Louisville, where they were based during their time in Kentucky. Their guide Monday was Al Cross, director of the UK journalism school's Institute for Rural Journalism and Community Issues, who has traveled twice to Zambia to help journalists there.


Monday's first meeting was at the attorney general's office, where Assistant Attorney General Amye Bensenhaver, far right in photo, explained the office's role in open-meetings and open-records appeals. John Nelson, editor of the Advocate-Messenger in Danville and The Winchester Sun, is shown talking about the statewide open-records audit conducted when he was KPA president and the special section about the audit and other open-government topics that was inserted into all Kentucky newspapers. David Thompson, executive director of the Kentucky Press Association and the longest-tenured state press group head in the U.S., talked about the group's open-government work and other newspaper issues. He also took the photo above and posted an item on the KPA blog.

Dr. Mike Farrell, associate professor of journalism at UK, talked about open-government issues and the work of the Scripps Howard First Amendment Center, which he directs (and which publishes the KOG Blog). UK assistant professor Kakie Urch discussed the coming opportunities in digital media in Africa and accompanied the group on visits to the House budget committee and the Tobacco Settlement Oversight Committee, where they posed for a picture with the committee.

Between meetings the group encountered and spoke briefly with Lt. Gov. Jerry Abramson and Jack Brammer of the Lexington Herald-Leader, the longest-tenured journalist in Frankfort. The final stops at the state Capitol were in the Senate and House, where the group was recognized with floor privileges and a legislative citation, respectively. They and Profs. Cross and Urch posed for a photo with Sen. Julian Carroll, D-Frankfort, who was governor when the Open Records Act was passed in 1976 and lieutenant governor (a job that then included presiding over the Senate) when the Open Meetings Act was passed in 1974.

Left to right: Al Cross, Kakie Urch, Morden Mayembe (FOIA task team, Ministry of Information), Donte Taylor (U.S. Department of State), Anthony Mukwita (editor/deputy managing director, Zambia Daily Mail), Julian Carroll, Suzen Kantantamalundu (research and planning director, Ministry of Home Affairs), Elizabeth Chanda (communications lecturer, University of Zambia), James Banda (president, Law Association of Zambia), Masuzyo Ndhlovu (public relations officer, Zambia National Broadcasting Corp.), Belina Musopelo (legislative drafter, Ministry of Justice), Daniel Sikazwe (chair, Media Institute of Southern Africa-Zambia), Concepcion Vasquez (State Department).

Press association opposes family-court bill that would set up prior restraint confrontations

The Kentucky Press Association is opposing a proposal that purports to open the state's family court system but would actually fall far short of that promise.

House Bill 239, which was approved last week without dissent and sent to the Senate, would set up a pilot project in state courts that deal with dependency, neglect and abuse proceedings or termination of parental rights. The press association has for years encouraged the state to open family court to the public and the media.

But KPA Executive Director David Thompson, in an email to the association's members, characterized the project as "more of a closed court, once it's open," and said the proposal clearly would violate the First Amendment prohibition of prior restraint on news coverage.

Under the plan approved by the House, any person – a private citizen or a journalist – attending a hearing would be prohibited from naming any individual involved in the court proceeding or giving any information that would lead to the identity of any individual. That would include identifying a witness who testified at the proceeding. That prohibition would be in force "outside of the court room."

The plan also allows anyone attending the hearing to take written notes, but it gives the judge or court official the right to inspect those written notes before the notes are taken from the court room.

"There is no openness when the public and the media are gagged, and written notes sanitized by court officials," Thompson said.

The Supreme Court of the United States ruled in 1976 in Nebraska Press Association v. Judge Stuart that a judge's order that journalists who attended a preliminary hearing could not report anything they heard until the trial started was an unconstitutional prior restraint.

The court in 1989 in Florida Star v. B.J.F. ruled unconstitutional a Florida law that prohibited the publication of a rape victim’s name by the news media.

"Numerous legislators have referred to opening family courts as a way to give more transparency to the public about issues involving the Cabinet for Health and Family Services. Nothing needs to be said about how important that is. But House Bill 239 has not become that vehicle," Thompson wrote.

Judge orders Cabinet for Health and Family Services to speed up its release of child-abuse records

The state Cabinet for Health and Family Services has been given 90 days to release thousands of pages pertaining to about 180 cases of children who died or were badly injured from abuse or neglect. The order was issued Thursday by Franklin Circuit Judge Phillip Shepherd, who called the cabinet's reluctance to comply with state open records laws an "utter failure," reports Deborah Yetter of The Courier-Journal. The ruling is the latest in the cabinet's fight with the Louisville newspaper and the Lexington Herald-Leader.

Shepherd's ruling replaces a previous order that told the cabinet to release 1,000 pages a week, which it started doing Jan. 27. The documents released so far — which have been "heavily redacted" at the cabinet's discretion and against Shepherd's ruling — represent 15 cases. The cabinet argued it should not be obligated to release the records since it is appealing Shepherd's decision, but the judge rejected that argument. He also said the cabinet had to list reasons for why it was redacting some information "and be prepared to defend them in court after releasing the files," Yetter reports. (Read more)

Policy won't cut it: AG says public defender has to disclose cases she handled in certain time period

The attorney general’s office recently found that the Department of Public Advocacy improperly withheld records in responding to a request for documents identifying a DPA attorney's cases by case name for March and April of 2010 and their trial dates.

Attorney General Jack Conway said the DPA, in its Dec. 19 response to James Potter, violated the Act procedurally and substantively. Procedurally, the response did not cite a specific exception to the Open Records Act. Substantively, the DPA relied heavily on a policy – based upon the Rules of Professional Conduct for lawyers and an ethics opinion from the Kentucky Bar Association Ethics Hotline Committee – not to disclose lists of client names absent a lawful order or other legal requirement to do so. The policy says “Specific case information is not to be shared, but generally case totals or trend data not identifying a particular client may be shared.”

The attorney general's office considered those arguments in a 2002 decision (02-ORD-103) and concluded that disclosure of the names of clients represent by a named DPA attorney would violate neither attorney-client privilege nor the client’s privacy. It said that when represented by DPA counsel in open court, clients cannot expect confidentiality.

On an aside, the DPA made a supplemental response that tried to justify the denial on the basis that the information that Potter requested, while it existed in a database, was not a regular report generated by the DPA. Conway said that argument was procedurally deficient because the open-records law makes clear that a public agency has discretion to tailor the format of existing records to conform to the parameters of a specific request. He said the DPA must produce a report for Potter or give him access to the entire Kentucky Unified Criminal Justice Information System database after redacting any statutorily protected information.

Judge urges governor to side with openness, says appeal of other judge's ruling is to protect cabinet

A veteran Kentucky circuit court judge has taken issue with Gov. Steve Beshear's recent opinion piece published in a number of Kentucky newspapers that defended his administration's appeal of a court decision that ordered some child abuse records be open to the public.

Judge Tyler Gill, circuit judge in Todd and Logan counties for 17 years, disputes some of the governor's contentions in a column published in The Courier-Journal today. He concludes after his years on the bench that openness and accountability are the better policies.

"Openness should always be the rule where government is involved and secrecy the rare and carefully considered exception to that rule," Gill writes. "I have come to believe that secrecy in courts of law should be eliminated in every adversarial action initiated by any agency of the state. Non-adversarial actions, such as private uncontested adoptions or adoptions after parental rights have previously been terminated, should remain confidential.

He was critical of the governor's support of the state's appeal of a Franklin Circuit Court decision ordering the Cabinet for Health and Family Services to release with minimal redacted information its records of children who died or nearly died while under protection of the cabinet.

"I have also come to believe that confidentiality imposed by our statutes is more often used to hide state incompetence or misconduct than to protect the citizens of Kentucky. Do not be misled. The cabinet’s appeal of the Franklin Circuit Court ruling is not a high-minded effort to protect the privacy of persons who report child abuse. It is to protect the cabinet."

Gill also cited a case he presided over in 2008 in which he said a lawyer for the cabinet was working against the interests of a patient committed to its care. He argued that openness was the only way to make the cabinet accountable for its actions.

"While we can always find some downside to open government, the consequences of government secrecy are far worse. We need only look to the courts and governments of totalitarian regimes such as China, North Korea, Iran or Cuba for this lesson."

He ended by urging the governor to work to open records and not close them. "The governor concluded his article by saying that he would continue to battle in court alongside the cabinet and its lawyers. I urge Gov. Beshear to stop listening to the cabinet’s lawyers and to start battling for the people of Kentucky. Our children deserve an open and accountable government."

Read his full column here.