Courts rule against two state agencies

Two Kentucky courts have made pro-transparency rulings recently.

Franklin County Circuit Judge Phillip Shepherd has awarded attorney's fees and court costs to the Lexington Herald-Leader and the Louisville Courier-Journal in a case against the Cabinet for Health and Family Services.

The papers had asked for records related to the death of Kayden Daniels, a toddler under "custody and control" of the cabinet when he died at an alleged meth lab. The court, which had earlier ruled the records had to be released under the Open Records Act, in this follow-up decision took issue with the cabinet's blanket refusal to release individual child fatality reports, labelling it a "willful" and intentional violation of the law. "A party requesting public records who prevails in a judicial action ... at a minimum, should be made whole ... when the denial of access is an intentional policy of the agency rather than administrative oversight, bureaucratic confusion, or negligence," the ruling said. It awarded the two papers a total of $20,737.69 in fees and costs. (Kentucky circuit court decisions are available online only to lawyers and state and local officials, so no link could be provided).

"The court recognizes that the Open Records Act is there for the good of the public as a whole," said media attorney Jeremy Rogers, who represented the Courier-Journal in the case. "This opinion acknowledges the reality that court cases to protect rights under the Open Records Act can be costly. However, the court has properly viewed the law’s provision for attorneys’ fees as an incentive for public agencies to comply with the law and as an incentive for members of the public to vindicate the public’s right to know. As the court wrote, '[w]ithout the provision for statutory attorneys fees, public officials would have a great incentive to deny valid open records requests secure in the knowledge that few, if any, parties will be willing to assume the burden of legal fees necessary to challenge such decisions in court.'"

In a separate case, the state's Supreme Court ruled against the Department of Revenue, which in several instances involving a tax refund appeal had refused to release records in a case filed by Mitzi Wyrick on behalf of Gannett Satellite Information Network, Inc. The department had cited the "civil litigation limitation" on the release of information, which provides for special exceptions in ongoing lawsuits. However, the Supreme Court ruled in this case the department did so in error. "The civil litigation limitation is an explanation of a court's authority to order inspection of documents otherwise exempted from disclosure under KRS 61.878(1)(a)-(n). It is not an exception to an agency's duty to disclose nonexempted records. And it does not allow a court to prevent disclosure of records available to the general public simply because the requesting party is involved in litigation against a public agency," the ruling said. (For the full text, go to http://apps.courts.ky.gov/supremes/sc_opinions.htm, then search 2008-SC-000468-DG.pdf.

Herald-Leader calls on Minton and Supreme Court to deliver on promises of openness

Despite pledges from Kentucky’s chief justice to shed more light on the process of building judicial facilities, the Lexington Herald-Leader says it’s “past time” for John Minton's promises to become reality.

“It's been almost a year since the Herald-Leader began chronicling the astounding building campaign of the Administrative Office of the Courts,” the newspaper said in an editorial over the weekend. “Cloaked in secrecy, riven with conflicts of interest, devoid of competitive bidding, the program has blasted through dozens of historic downtowns and almost a billion taxpayer dollars and is still going.”

The paper notes that Minton inherited the system from retired Chief Justice Joseph Lambert, and "has taken positive steps to protect both the integrity of the state's court system and tax dollars. ... But some of the changes Minton announced last October to ‘shore up public confidence’ have not yet materialized. It's past time for them to become reality.” Minton told the KOG Blog earlier this year that opening up the court construction program was one of his goals in a general review he has ordered of the degree of transparency in the Kentucky court system. He declined to comment on the Herald-Leader’s editorial.

“The most critical [change needed] is opening up AOC's work to public view, and scrutiny,” the paper wrote. “The records of the court system and the AOC have been closed since 1978 when the Supreme Court ruled that they weren't subject to the state open records law. This is a puzzlement. Our system depends upon the integrity of the courts. And nothing encourages integrity like open records.”

The paper said the lack of transparency leads to a “queasiness,” explaining: “First, we're talking about our courts. If they aren't honest and open, is there any hope for clean government in the two other branches? Second, there is a ton of money on the table here. Human nature and Kentucky's long, corrupt history tell us that public money combined with secret dealings is a combustible mixture that yields no good. ... The Supreme Court can undo what it did in 1978. Open the books. Open the process. Restore confidence.”

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

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

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

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

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

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

Court system heading toward more openness, perhaps even in juvenile courts

Leaders of Kentucky's court system are discussing major rules changes to make the courts more transparent, including proposals to make juvenile court more open.

The move is part of a broad plan that could put all court expenditures on line, provide better Internet access to court records and form a citizens’ commission to give the Supreme Court advice on open-courts matters, said Jason Nemes, outgoing head of the Administrative Office of the Courts. The changes would be up to the Kentucky Supreme Court.

Nemes said Chief Justice John Minton Jr. has asked judicial experts to look again at a bill introduced in the 2008 legislative session that would have given judges more discretion in opening child-protection proceedings, as well as other changes to make juvenile courts more transparent. That could include recommendations on opening more juvenile records and giving judges more discretion to open juvenile proceedings.

"There's lots of different ways to do it," Nemes said, noting that some states treat proceedings and records differently.

The Kentucky Press Association unsuccessfully sued in federal court in 2004 to open juvenile courts. The U.S. Court of Appeals for the Sixth Circuit ruled in 2006 that state law already allows judges to grant access to "interested parties" and that judges could admit journalists as interested parties.

A Supreme Court rule detailing how judges could do that would be "a giant step," said John Nelson of Danville, executive editor of The Advocate-Messenger and KPA president when the suit was filed. "Courts have assumed that part of the statute means that they can’t let anybody in except the parties who are affected," he said.

Nelson said the General Assembly took "a baby step" last year in opening docket information on juveniles charged with violent crimes and that an additional small step could be further opening of juvenile dockets.

The Supreme Court ruled in 1978, two years after the Open Records Act was passed, that it did not apply to court records because the legislative branch could not tell the judicial branch what to do. Most court records are generally open as a matter of policy, but Minton wants the court to change the rules as part of what his chief of staff, Katie Quitter, called “a general movement in state government toward transparency.”

Quitter said Minton had been persuaded in part by similar moves in the governor’s office and by Nemes, who will leave his job at the courts' administrative arm on April 3.

“I’m a huge proponent of openness in government,” Nemes said in an interview. He said his office is working on the draft rules, which will be submitted to the Judicial Council, a panel of judges, lawyers and legislators who advise the Supreme Court.

Minton said in an interview that he recently reactivated the council, and "I just thought it would be a good forum in which to vet the whole issue of openness, which I think needs to happen." He said any changes are up to the seven members of the Supreme Court, but "In order for us to be credible, for people to have a basis to trust us, we've got to be more open."

The new rules could apply to Supreme Court agencies, including the Kentucky Bar Association, the Board of Bar Examiners and the Judicial Conduct Commission. For examples of how access to those records is limited, see this story by Andrew Wolfson in The Courier-Journal.