Dear General Beshear:

The Kentucky Open Government Coalition appreciates your administration's recognition of the importance of Kentucky's Sunshine Laws.

After getting off to a shakey start, you committed yourself and your staff to ensuring that the statutory deadlines for issuing open records and meetings decisions was met.

This followed years of your immediate predecessor's utter failure to do so. The fault did not lie with the open records/meetings merit staffers in the Capitol. They submitted draft open records and meetings decisions for review within the internal deadlines established by your predecessor. Sadly, his staff —and apparently he — attached no value to open government and simply ignored the statutory deadlines — ten days for open meetings decisions and 20 to 50 days for open records decisions turned into months.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

You came to understand the importance and value of a veteran open records/meetings staff whose knowledge and expertise exceeded yours and that of your management team. You afforded the staff considerable latitude in interpreting and applying the open meetings and records laws. There is little, if any, evidence of politicization of the open meetings or records decisions issued after September, 2016.

We are grateful.

We are also immensely grateful for your willingness to intervene in a lawsuit between some of the state's universities and their student newspapers to defend your staff's ability to meaningfully exercise its authority under the law to request copies of disputed public records for confidential inspection from public agencies whose actions are challenged in open records appeals . It was a courageous, and unprecedented, step.

https://amp.kentucky.com/news/politics-government/article230522334.html

Unfortunately, that litigation is still pending. We trust that your successor will understand its importance and see the litigation through to a successful conclusion and that you will do everything in your power to ensure that he does. Without this authority, the open records/meetings staff is severely handicapped in its ability to discharge its statutory duties.

In the meantime, thank you for authorizing your staff to rule against agencies that refuse to comply with requests to review disputed records, or to provide "additional documentation for substantiation" of their

position. This practice, long advocated by the open records/meetings merit staff, properly assigns the burden to the agencies to sustain their denials of records requests.

Noncompliance with the staff's request for disputed records for confidential inspection is increasing at an alarming rate. We trust that your successor will continue to observe this practice while the issue remains in the courts — and beyond, if necessary.

There are a few loose ends that remain to be "tied up" to secure your office's open government role in the future and safely transfer it to your successor.

We've linked to statutes governing certification of expiring state regulations enacted before 2013 and aimed at "sunsetting" those that are outdated and unused.

In 1995, the open records/meetings staff received approval from Attorney General Chris Gorman to promulgate regulations governing the appeals process in the attorney general's office. These regulations establish the parameters for internal practice and are exceedingly important. They ensure uniformity and fairness in the appeals process.

https://apps.legislature.ky.gov/law/kar/040/001/030.pdf

Although the deadline for certification of pre-2013 regulations was extended to February 28, 2020, in the last legislative session, it will require minimal effort on the part of your staff to certify the regulations governing open records/meetings and secure their future. There's even an opportunity to amend and improve them.

We have a few suggestions for improvements if you'd like to discuss them.

But certification must be a priority. The new attorney general will just be settling into office when the deadline for certification expires and with it the regulations that have governed office practice since 1995.

At last check with LRC, the open records/meetings regulations had not been certified. You will do a great service to the appeals process, the office, and the public if you certify the regulations now rather than later.

And there's still the little matter of the open records decision issued by your predecessor on his last day in office. Inexplicably, and despite the vigorous opposition of his open records/meeting staff, he determined that communication concerning public business that is conducted on a public official's or employee's personal device or private account is not public record and therefore not governed by the open records law.

https://ag.ky.gov/orom/20151/15ORD226.doc

There is no support in Kentucky's law for the decision, and it has been rejected in nearly every state.

In 2017 there was even a failed attempt to "codify" this legally unprincipled interpretation of the open records law by creating a new exception to the law.

https://www.kentucky.com/news/politics-government/article206372469.html

If the opportunity presents itself, please seize it by fully and finally reversing the 2015 open records decision issued by your predecessor. It poses a grave threat to both open records and open meetings. The open records/meetings staff has done as much as it can do to minimize the harm your predecessor did — short of officially overruling the decision.

And one more thing. If elected, please commit your administration to transparency and accountability in both word *and deed*.

These are desperate times for Kentucky open government laws. Agency resistance and noncompliance — especially at the state level — has never been greater. The costs in judicial resources and taxpayer dollars is unprecedented. The laws have also come under legislative assault in the last two regular sessions.

https://www.google.com/amp/s/amp.courier-journal.com/amp/3006402002

If elected, you can send a clear and unequivocal message of support for open government by reversing this course. Your leadership can restore the much needed recognition of the presumption of openness — and the importance of the public's right to know — that has been ignored far too long.

Respectfully,

The Kentucky Open Government Coalition