The dissent in a Kansas Supreme Court opinion issued last week reminds us of a classic comic strip as well as a recurring open records problem.

https://kansasreflector.com/2021/07/02/supreme-court-dissent-open-recor…

The Court dismissed an open records appeal involving records withheld by a public agency because the records were subsequently disclosed by another agency.

In a dissent joined by three other justices, Kansas Supreme Court Justice Dan Biles criticized the majority opinion:

"Like Lucy in the cartoon series, dodgy government officials will be able to avoid a bad legal outcome by simply pulling the football away from Charlie Brown at the last possible minute. And this scenario can repeat itself to stop inconvenient litigation by concerned citizens under the guise of creating an instant lack of traditional standing while preserving an illegal policy that denies the public access to their government's records."

The majority opinion left the underlying records access issue unresolved. The requester lost "standing" to pursue his appeal when he obtained the disputed record from a separate agency.

"When a party loses standing, courts lose jurisdiction," the majority said. "And, without jurisdiction, we must dismiss the appeal."

Kentucky's courts have not addressed this issue, but the Kentucky Attorney General — to the frustration of open records requester "Charlie Browns" denied or delayed access to public records by public agency "Lucys" — regularly has.

Think of Louisville Metro Police Department's pattern of months' long delays in producing public records.

In many cases, requesters are initially denied access to the records they request or are put on indefinite hold as the agency delays access.

Charlie Brown files an open records appeal to the Attorney General. Lucy receives notice of the appeal and pulls the football away by releasing the records before the Attorney General issues an open records decision.

Charlie Brown and Lucy receive a letter from the Attorney General advising them that the appeal has been mooted and the underlying records access issue is never resolved.

Under a regulation promulgated in 1995, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."

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

In many cases, Charlie Brown and Lucy are satisfied by this resolution.

But not all Charlie Browns are satisfied. As in Kansas, "this scenario can repeat itself to stop inconvenient litigation by concerned citizens under the guise of creating an instant lack of traditional standing while preserving an illegal policy that denies the public access to their government's records."

One solution to this problem would be to amend the Kentucky regulation authorizing the "mooting" of appeals in which "the requested documents are made available to the complaining party after a complaint is made," by making it permissive rather than mandatory — changing the "shall" to "may."

The Attorney General is not constrained by jurisdictional "standing" requirements. This revision would provide latitude to the Attorney General to review a "moot" appeal where there is a consistent pattern of agency misconduct warranting review and a decision finding a violation or subversion of intent of the open records law.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51394

The current regulation incentivizes noncompliant Lucys — who face no consequences for pulling the football away at the last minute — and frustrates Charlie Browns — who trust that by filing an appeal Lucy will not be permitted to "preserve an illegal policy that denies the public access to their government's records."