Kentucky courts still grappling with records of probes into sexual harassment at universities

From the Kentucky Open Government Coalition

An article in the Wisconsin State Journal reminds us that the issue of access to university records relating to investigations into sexual harassment by faculty and staff has yet to be finally resolved by Kentucky’s courts.

The open records lawsuit pitting Western Kentucky University against the University of Kentucky student newspaper, The Kernel, and it’s own student newspaper, The College Heights Herald, remains in Warren Circuit Court. This follows a 2017 Kentucky attorney general’s ruling that WKU improperly relied on the Family Educational Rights and Privacy Act as the basis for withholding sexual harassment investigative records.

In a separate lawsuit pitting UK against the Kernel, the Kentucky Court of Appeals in 2019 affirmed a 2016 attorney general’s decision, reversed a local judge's opinion, and ultimately rejected UK’s claim that FERPA protects university investigative records into allegations of sexual harassment.

However, the court returned that lawsuit against the Kernel to Fayette Circuit Court for further review on other privacy issues. There it remains.

The court slammed UK for failing to “fulfill its statutory mandates under the Act” and making no “attempt to comply with the Open Records Act in any meaningful way.”

Rejecting the suggestion that the Kernel was motivated by “simple curiosity,” the court recognized that “the public has an interest in the investigatory method used by its public agencies and to know that a publicly funded university has complied with all state and federal laws.”

It criticized the university for taking “the indefensible position that the records are exempt because it says they are and it must be believed.”

The University of Wisconsin case presents similar facts and similar illegal university secrecy. It involves a tenured ecology professor who retired in the midst of an investigation that confirmed allegations of sexual harassment.

Neither the professor nor his victims were satisfied by the university’s investigation and subsequent “cover up.”

Echoing the Kentucky Court of Appeals in the UK v. Kernel case, Frank LaMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former director of the Student Press Law Center, observes: “There’s a compelling public interest in the investigative process. The public needs to be able to see that cases are being taken seriously, processed promptly and dealt with appropriately. If you cannot see the records, the university is left on a ‘trust me’ honor system. We know from experience that the ‘trust me’ honor system doesn’t always work.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, notes that release of redacted records helps the public assess how fair the investigation was to both parties: “This is a case in which a public employee’s misconduct was affirmed by an investigation. The public has a right to know what that misconduct was beyond ‘sexual harassment,’ which could mean anything and include a wide range of behavior.”

Frankfort paper calls Kentucky State's 'gag order' outrageous, at odds with a university's mission

This editorial from The State Journal in Frankfort is published in its entirety because the newspaper's editorials are behind a pay wall.

A gag order is a means, usually issued by a court, for restricting information from being made public.

A judge may not want sensitive information from a closed hearing to be discussed publicly, may need to protect the privacy of victims or minors, or may feel it necessary to keep trade or military secrets from being revealed.

Negatively, however, gag orders may also be used as a form of censorship to limit freedom of expression or freedom of the press.

State Journal editorial cartoon by Linda Boileau

Unbelievably, a type of gag order is apparently in existence at Kentucky State University after being discussed at its Board of Regents meeting Wednesday in Lexington.

Regents discussed that if approached by a student, staff member or faculty member, they should refer them to KSU President Mary Sias, who will in turn speak to Board Chair Karen Bearden to place them on the agenda to speak at a future board meeting.

Furthermore, the board also discussed how to react when approached by a reporter wishing to speak to them about a dissenting vote on an issue. Bearden asked them to respond with “no comment” and inform her about it, so she could contact Sias about the best way to respond.

This discussion by a public university’s board of regents — at any college or university — is not only outrageous, but is completely incongruous with what we hope college students are being taught.

A majority of the regents are not employees of the university. While the board includes a faculty, staff and student representative, the other eight are appointed by the governor. No one is higher on the organizational chart than a member of the Board of Regents. They do not report to the university president, rather the university president reports to them.

A member of a school’s faculty or staff may feel so deeply about an issue he or she wishes to speak to a board member rather than an administrator. If the policy is to tell that person to instead speak to the university president, faculty and staff members would certainly be more reluctant to come forward.

Plus, they may wish to speak in private, not be placed as an item on a future meeting agenda.

The men and women appointed to university boards should be thoughtful, intelligent people. They have offered to serve in a leadership role at an institution of higher learning and they bring together diverse and varied views and backgrounds.

So we refuse to understand why they wouldn’t be allowed to speak — and more importantly wouldn’t want to speak — to faculty, staff or a member of the press.

We know we are outraged by the actions of the board and we believe others should be as well, among them the governor, the taxpayers, the faculty, the staff and the students.

The members of the Board of Regents are not appointed to be puppets and mimes. They are appointed to be independent thinking individuals willing to express their viewpoints.

There are important reasons why laws govern open meetings and open records, especially that the public has the right to know how its tax dollars are being spent.

Similarly, appointed and elected individuals should have every right to speak freely to those they oversee and those who report on their actions.

That the Kentucky State University Board of Regents would essentially decide to say no comment until they ask the university president how they should respond is a slap in the face of all that governing boards should be about.

We suggest the members of the KSU Board of Regents undo this ridiculous policy or let the governor find people willing to intelligently speak to the public that he can appoint to replace them.

C-J says Beshear must set health-and-family cabinet right on child-abuse records, following judge's order

The Courier-Journal published a remarkable editorial Sunday excoriating the Cabinet for Health and Family Services for the high level of secrecy in which it has enveloped cases of children who were killed or nearly killed while its caseworkers were supposed to see that they were protected from harm. Last week a judge ordered the cabinet to pay nearly $1 million in civil penalties and attorneys' fees to the newspapers that have been seeking the records. Rather than excerpt the editorial, we publish it in full, along with photographs of the officials it holds responsible. For larger versions, click on the images.

Appeals court upholds award of attorney fees to reporter, citing city's repeated 'false denials'

The Kentucky Court of Appeals ruled today that the City of Owensboro must pay the legal fees of a newspaper reporter to whom it refused to give copies of complaint forms about the police department's public-information officer.

James Mayse of the Messenger-Inquirer sought records involving Marian Cosgrove, who resigned her job in November 2011 after coming under investigation by the department. He asked for any documents related to any complaint about her, and the city repeatedly said it had no records that would be responsive to his requests.

Mayse appealed to Attorney General Jack Conway, whose office asked for and got the investigative files from the city. Conway ruled that the city must release the initial complaint forms in the file because they are not exempt from the state Open Records Act. The city appealed to Daviess Circuit Court, where Judge Jay Wethington ruled for Mayse. He said the city's denials were "willfully defiant" of the intent of the law and done in "bad faith," so the city should pay Mayse's legal fees.

The city appealed, but gave Mayse the two Professional Standards Complaint Forms, so the appeals court dismissed that part of city's appeal. In granting Mayse attorney fees, the three-judge panel wrote, "The City's response, on three separate occasions, that no record responsive to Mayse's requests for complaints is problematic given the egis of the Open Records Act. In fact, there were two documents labeled "Professional Standards Complaint Forms" in Cosgrove's file from the inception of Mayse's requests. When the attorney general asked repeatedly about the existence of 'any other document,' the city also denied the existence of such documents to the OAG. The circuit court found the city's explanation that the information was incorrectly put on a complaint form and labeled 'internal' was not persuasive and defied the statutory intent of the Open Records Act. In essence, the City repeatedly made false denials of the existence of any complaints regarding Cosgrove." The decision is here.

Ky. high court says police can't just dismiss records requests using prospective-action exemption

The Supreme Court of Kentucky ruled today that law enforcement records are subject to open-records requests even if there is a "prospective law enforcement action," and that to withhold records for that reason, a law-enforcement agency must prove that a premature release of the them would hurt its prospective action.

The state's highest court ruled in a case brought by The Kentucky Enquirer, which wants the investigative file about a murder to which the victim's widow pleaded guilty in 2009 but is now seeking a new trial, alleging she had ineffective counsel. The Gannett Co. newspaper, an edition of The Cincinnati Enquirer, has been seeking the file since the case concluded.

The ruling "is a big step forward for us," Kentucky Press Association counsel Jon Fleischaker told the newspaper organization, which supported the Enquirer's efforts. "The court handed down some guidelines for proof in an open-records case which will be very helpful to us, especially in cases like the pending action against the Cabinet for Health and Family Services. Finally, there is very useful language regarding the imposition of attorney’s fees and the circumstances under which the award of attorney’s fees is appropriate.  Those guidelines will be useful for all of us." For Fleischaker's note and a copy of the decision, click here.

The court "found that although the municipality’s response to The Enquirer request for records was inadequate, it has not been shown to have willfully violated the law, and so does not provide a basis for sanctions," Jim Hannah writes for the newspaper. "The Enquirer had asked that the municipality pay its legal bills in the case. Fort Thomas was ordered to make a good faith effort to identify those records responsive to The Enquirer’s request and either provide them to the newspaper or explain with why, under the law, they are exempt. A Campbell Circuit Court judge would then be asked to review what the city claimed was exempt to ensure the law was being followed." (Read more)

Lawyer Kim Greene wins UK's James Madison Award for service to the First Amendment

Kim Greene, who was one of Kentucky's leading First Amendment lawyers, received the James Madison Award tonight from the Scripps Howard First Amendment Center in the School of Journalism and Telecommunications at the University of Kentucky. The center presents the award for outstanding service to the First Amendment by someone with ties to Kentucky.

Greene, of Louisville, was instrumental in starting the Freedom of Information Hotline for the Kentucky Press Association in 1986. It remains the only such free hotline for newspapers in the U.S. In 1996 she helped start KPA's Legal Defense Fund Hotline. She was named KPA's most valuable member in 2001.

Greene represented many Kentucky newsrooms. Max Heath, who was executive editor of Landmark Community Newspapers, said in his nomination that she was "a velvet hammer" as an attorney, always smooth and professional but firm in her advocacy. She won the First Prize from the Louisville Chapter of the Society of Professional Journalists in 2005 for her First Amendment work.

Greene, a native of Ashland, told the crowd at UK's Young Library Auditorium that she fell in love with the First Amendment when she was in law school, then with journalists who used it to serve the public. "The First Amendment is just that special ingredient that makes our country so different from all others," she said.

Greene told the student journalists in the audience, "there's hardly any more important work in our country that you could be doing." She is married to First Amendment lawyer Jon Fleischaker, won won the Madison Award several years ago.

Grayson, left, speaks with UK accounting
senior Aleksey Graboviy after his speech.
(Kentucky Kernel photo by Tessa Lighty)

The award was presented at the center's annual Celebration of the First Amendment. The annual "State of the First Amendment" address was given by Trey Grayson, director of the Institute on Politics in the John F. Kennedy School of Government at Harvard University and Kentucky's secretary of state from 2004 to 2011.

Grayson spoke on occasional conflicts of the First Amendment with the right to vote, as seen in news-media coverage of voting and the ubiquity of cameras, which pose threats to the privacy of voting, and Kentucky's law on electioneering near voting places, passed after a federal appeals court struck down a ban on electioneering within 500 feet of the polls, with an exception for private property. Current law sets a 300-foot limit with no private-property exception, and "That strikes me as still being a little broad," Grayson said.

Sun gives police letter alleging schools' laxity about weapons, but honors request for anonymity

A newspaper in a Kentucky county that had one of the first mass school shootings gave police a letter it received from a student alleging lax enforcement of rules about weapons on campus, but refused to identify the student, who asked to remain anyonmous. The Paducah Sun gave the McCracken County Sheriff's Department a copy of the letter about Reidland High School on Monday "after a reporter called the department . . . although the name of the author was not included," the paper reported Tuesday in a non-bylined story.

Reidland High School

The story quoted from the letter: “Someone who sits in class with us, who has brought weapons twice ... has yet to be punished for anything.” It "does not mention the person’s name," the story says. "It adds that the person has plotted attack sites around the school area and asks why school administrators are afraid to enforce school rules. The letter does not contain any specific threats of violence, just the student’s observations."

After being told about the letter, police and school officials decided to close the school and the attached Reidland Middle School. “School will not be in session until the threat has been adequately investigated,” Sheriff Jon Hayden wrote on his department's Facebook page. The paper's story is here; the letter is here.

Reidland (A) and Heath (B) schools (Google map)

On Dec. 1, 1997, a student at a high school on the other side of Paducah fired on a group of students at a prayer meeting, killing three and injuring five. He pleaded guilty but mentally ill and was given life in prison with the possibility of parole in 25 years. "A federal appeals court panel is considering whether Heath High School gunman Michael Carneal should be allowed to take back his guilty plea and get a trial," Angela Hatton of WKMS in Murray reports.

The Wednesday, Dec. 19 Sun has a copy of the letter, a story about an unnamed teacher who says she prompted it, and a column from Editor Jim Paxton explaining the paper's handling of the matter: "Newspapers by statute in Kentucky have a right to protect the identity of their sources, just as law enforcement agencies do. Absent that ability, we would never be able to develop the type of information that is reported in today’s lead story about the school threat issue, information we believe most readers will agree sorely needs to see the light of day." Paxton said the paper asked the student's parents if he could speak to the sheriff's department if his confidentiality was protected. "The parents expressed reservations, noting their son is a juvenile. We advised investigators of the parents’ position, but said we would continue to try to broker a resolution that would allow investigators to speak to the student directly."

Paxton says a press release from the sheriff's department at 10:30 p.m. Monday "was at best disingenuous and at worst defamatory. The release was crafted in such a way as to make it appear that the newspaper had received a letter from an individual who had directly threatened the high school and we were refusing to tell authorities his name citing 'journalistic ethics.' The release didn’t say that specifically, but it was clearly intended to be interpreted that way, and it was." That release appeared to be the basis for a story by WPSD-TV, also owned by Paducah-based Paxton Media Group. The county school superintendent sent a similar message to school-district employees.

"The effect was as officials planned," Paxton writes. "People called to cancel subscriptions. Advertisers called threatening to pull out of our newspaper. Profane comments poured onto our Facebook page." And though the paper's First Amendment lawyer said it had an absolute right to withhold the student's name, "we continued working to broker a resolution, and later that morning, our source, his parents, and an adult employee of the school system who we learned was our source’s source agreed to meet here at the newspaper with Sheriff Hayden. While we were in the process of setting that meeting up, a sheriff’s detective showed up in our offices with grand jury subpoenas demanding that Executive Editor Duke Conover and yours truly appear in less than two hours before a grand jury along with the letter disclosing the identity of our source. (In what can only be described as a show of belligerence, the sheriff’s detective undertook to 'read' the subpoena to Conover in Conover’s office while Conover was engaged in a phone call. First, that’s hard to do, since subpoenas mostly have boxes and checkmarks on them. Second, legally, it has no effect. Subpoenas are simply supposed to be delivered, and sheriff’s deputies are well aware of that.)" Paxton, a lawyer, writes that the subpoenas were illegal and "purely an effort to intimidate a news organization. We doubt Kentucky’s attorney discipline board will smile on this exercise."

In the end, Paxton reports, "Our source and others familiar with this matter did meet in our offices with the sheriff, and as today’s lead story indicates, much was learned. Interestingly, some of what was learned was very unflattering to school administrators and others in the school system. Meanwhile, we as a newspaper remain puzzled by the scorched earth approach taken by local officials involved here." (Read more; subscription may be required)

Sheriff Hayden issued a press release Tuesday night saying that the alleged threat was a misinterpretation of two students' conversation about explosions in a video game, which had been investigated and cleared. "Had investigators been provided contact information sooner, this incident could have been cleared up much quicker," Hayden said.

Hustonville officials refuse to release text of proposed ordinances after first reading

Here's one we've never heard before: A city refusing to provide the text of proposed ordinances on which its city council has held first reading. It is happening in Hustonville, the small Lincoln County town on US 127 between Danville and Liberty, reports Ben Kleppinger of The Interior Journal of the county seat of Stanford:

"Hustonville City Council has passed first readings of five ordinances aimed at curtailing certain behaviors within city limits, but the city has refused to release the text of the ordinances to the public. The ordinances were read aloud by Mayor Marc Spivey at the city's Aug. 7 regularly scheduled meeting. City Attorney Carol Hill refused to give the weekly newspaper copies of the ordinances, claiming they are "preliminary documents," and City Clerk Rita Clem denied a written open-records request, saying "The Open Records Act only governs access to the existing records and not to records that will be created in the future."

Kleppinger reports, "Kentucky Press Association Attorney Jeremy Rogers, who specializes in open meetings and open records law, said there's no question ordinances that pass first reading are open record. Rogers said Hustonville's argument that the ordinances do not exist doesn't make any sense because they have all already received first readings. . . . There's nothing preliminary or private or secret about it. They've read it in an open meeting."

The newspaper is appealing denial of its open-records request to Attorney General Jack Conway. The ordinances deal with littering, illegal parking, jaywalking, wearing of masks and one that would ban "formation of any type of line and/or congregating on the sidewalks, streets or any other public property." (Read more)

Editor, lawyer say open-government laws being obeyed more, but the battle will never end

By Al Cross
Institute for Rural Journalism and Community Issues

Public officials in Kentucky are doing better at obeying open-government laws, but many still have a ways to go, but Kentuckians are making increasing use of the laws to hold officials accountable.

So said the chief author of the laws, and one of the leading users of them, in an interview being broadcast on statewide television this week to mark the 20th anniversary this month of the laws' major rewriting. They also said the battle for open government will never end.

"We have to re-educate our local officials every four years about open meetings and open records," John Nelson, executive editor of Danville-based Advocate Communications, told Bill Goodman on "One to One," broadcast on KET Sunday afternoon. The show is airing on KET2 Tuesday, July 24 at 7:30 p.m. ET and Wednesday, July 25 at 7:30 a.m. ET and on KET Sunday night, July 29 at 12:30 a.m. ET. It is available online by clicking here.

Host Bill Goodman shares a laugh with Nelson, center, and Fleischaker

Nelson, a leader in using the Open Records Act, said "We use it or consider using it at least weekly" at the company's papers in Danville, Winchester, Nicholasville and Stanford. He said he has seen recently seen an increasing use of open-government laws by the public, and "I would love to see more citizens become more aware of the law."

The General Assembly passed the laws in the mid-1970s and revised them in 1992. Since them, users of the records law have made some progress in reducing an attitude among public officials that records were "their business, not the public's business," said Jon Fleischaker, a Louisville attorney who helped draft the first laws and was the Kentucky Press Association's chief counsel on the rewrites.

Fleischaker said one powerful aspect of the laws is the ability of anyone to appeal the denial of a record, or access to a meeting, to the state attorney general and get within 20 days a ruling that has the force of law unless overturned in court. He said the process for "a quick and easy determination that is inexpensive" is "close to unique" among the states.

He said the attorney general's office has become increasingly helpful with successive attorneys general: "They're very consumer-friendly, citizen-friendly." He said later that most judges have also been a boon: "The courts in Kentucky have been very favorably inclined toward openness."

A key court decision, opening the donor records of university foundations, stemmed in part from a better definition of "public agency" included in the 1992 rewrite, Fleischaker said. The loser in his lawsuit for The Courier-Journal was the University of Louisville, which claimed privacy but had "wrongly assured" donors they would remain anonymous, he said. "In most of those cases there was a deal being made" with the donor. "That's not a private matter."

KPA and others began pressing for improvement of the laws little more than a decade after their passage because newspapers had become concerned about repeated violations of the laws and difficulty in achieving their goal of open and accountable government.

In 2004 KPA, The Associated Press and journalism schools in the state conducted an "open records audit" by sending strangers to local agencies to request specific records. Nelson, KPA president at the time, said there was "largely a positive outcome, but we did find that there were problems."

Nelson said the "glaring weakness" that remains in the laws is a light penalty for non-compliance. Fleischaker said it is "a very small fine that almost never gets implemented," and "That takes litigation and expense," usually against a public agency that can "go to court at the drop of a hat."

Fleischaker said it is also rare for courts to grant attorneys fees in open-government cases, but noted that the state Cabinet for Health and Family Services was ordered to pay in its dispute with major newspapers and the Todd County Standard about child-abuse fatalities and near-fatalities.

He said the case has "become a procedural nightmare" as the state Court of Appeals considers several procedural questions and the cabinet gives The Courier-Journal and the Lexington Herald-Leader documents that are "being redacted much more than they should be," including "names of people charged in criminal court with murder." He added, "This has nothing to do with children and protection of children; it has to do with protection of people in the cabinet."

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)

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)

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.

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.

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.

Making agency more open gets top priority from attendees at Ky. Summit to End Child Abuse Deaths

"Eliminating secrecy at the Cabinet for Health and Family Services was the top vote-getter" among 250 "judges, lawmakers, child advocates and social workers" in a packed house at the Kentucky Summit to End Child Abuse Deaths yesterday in Louisville, reports Deborah Yetter of The Courier-Journal.

The top recommendations, as listed by Linda Blackford of the Lexington Herald-Leader, were to increase:
 Improve transparency and accountability at the cabinet;
 Increase funds for proven and effective services such court appointed advocates, substance abuse programs, in-home services and parent advocate programs;
 Increase funds for additional social workers and support;
 Improve the system of collaboration among agencies involved in the child welfare system.

"Transparency and accountability became big issues after the Herald-Leader and The Courier-Journal sued the state to get access to case files of children who have died or nearly died as a result of neglect and abuse," Blackford notes in her story.

Jon Fleischaker, left, and Dr. James J. Clark,
associate dean for research at the University
of Kentucky College of Social Work

Top Kentucky news-media lawyer Jon Fleischaker said it was details of the case of murdered Todd County 9-year-old Amy Dye — details "that the cabinet first denied it had, then fought to keep secret — that helped galvanize public outrage over shortcomings of the child welfare system," Yetter reports, quoting Fleischaker: “There is a culture of secrecy that deprives the public of all information. If the public doesn’t know about it, good luck on getting more funding.”

Cabinet Secretary Janie Miller "gave a brief luncheon speech at the summit, saying her agency welcomed the work of the summit," Yetter reports. "Afterward, in an interview, Miller declined to comment on the litigation over access to child abuse records between the cabinet and the state’s two largest newspapers." (Read more)

"Any bill that Kentucky lawmakers pass in the name of children should uphold the spirit and the letter of the state’s open records law," The Courier-Journal says in an editorial.

Judges like bill to open juvenile courts, but it would make reporters' notes subject to inspection

Family Court judges told a legislative committee yesterday that Kentucky's juvenile courts should be made open, to improve scrutiny of the state's bedraggled system of child protection, and endorsed a bill to start that. But the state's leading news-media lawyer, who has been fighting to open the system, objected to a provision in the bill that would make notes taken by anyone in court subject to inspection by the judge. For the story from Beth Musgrave of the Lexington Herald-Leader, click here.

Small, weekly newspaper beats stonewalling state agency in case of adopted child's murder

When a 9-year-old girl was found beaten to death and her adoptive brother was charged with murder, the local newspaper wanted to know what the state child-welfare agency had done, or not done, with the family in the four years Amy Dye, left, had been placed there. The Kentucky Cabinet for Families and Children stonewalled the Todd County Standard, but the small, weekly newspaper fought in court and a judge found that the agency had violated the state open-records law -- and prevented further stonewalling on appeal by putting the records in his ruling.

The records paint "deplorable picture of what happens when those who are assigned to protect a child fail," Editor-Publisher Ryan Craig wrote in his Nov. 9 paper. Franklin Circuit Judge Philip Shepherd of Frankfort "said that Amy was put in the Dye home despite there being a 'substantiated' incident of child abuse prior to her placement" and the case is an "example of the 'potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny'," Craig wrote.

In his Nov. 16 edition, Craig reported that a closer look at the records showed "that the cabinet made a choice within a few days of Amy Dye’s death and a day after the Standard filed an open records request to declare the scope of the investigation in a way that would keep the files from becoming public," by classifying its probe as a "neglect investigation" instead of a "fatality investigation," which by law must be public. His story noted that "Officials with the Cabinet delayed nearly two weeks — violating open-records laws — before even responding to the Standard’s initial request for records. Then when the Standard received a response, it was told there were no files whatsoever on Amy Dye."

The Standard is not online, but we have posted PDFs of its Nov. 9 front and jump pages here and here and its Nov. 16 pages here and here. The photo of Amy is from The Courier-Journal of Louisville, which reported on the case in detail today. For the story by Deborah Yetter, go here.

Attorney general rules Louisville's University Hospital is a public institution

Louisville's University Hospital is a public institution, not a private one, which means the state gets a say about the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System, Attorney General Jack Conway said in an open-records decision Wednesday.

Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.

"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)

The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.