(Editor's Note: This post has been edited to reflect that both candidates for Kentucky attorney general responded to a questionnaire from the Kentucky Open Government Coalition.)

The November 5 election for Attorney General will decide the future of Kentucky's open government laws. And now, more than ever, what we don't know can hurt us.

The candidates for Attorney General, Republican Daniel Cameron and Democrat Greg Stumbo, have been extensively questioned on topics ranging from battles with opioid manufacturers to battles with lawmakers over unconstitutional legislation; from "constructive partnerships" with the Office of the Governor to an independent office that provides much needed checks and balances in the executive branch.

But the candidates have not been publicly questioned on how they intend to discharge the role assigned to the Attorney General by statute and unique to his office: protecting and preserving the public's right to know through fair and objective interpretation of the Kentucky Open Meetings and Open Records Acts.

Both candidates have responded to the Kentucky Open Government Coalition questionnaire regarding the Kentucky Open Meetings and Open Records Acts.

What, then, is the role of the Attorney General under the Open Meetings and Open Records Acts?

The Kentucky Attorney General acts as a first line of review in legal disputes between the public and public agencies involving access to public meetings and records.

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

Any member of the public who believes that a public agency has violated his or her statutory right to attend a public meeting, or to obtain a public record, may challenge the agency's actions by filing an appeal with the Kentucky Attorney General.

It's a simple process initiated by the submission of the open meetings complaint and agency denial, or open records request and agency denial, to the Attorney General. There is no fee for filing an appeal and no lawyers are required. Based on the documents submitted to him, the Attorney General must issue a decision stating whether the agency violated the Open Meetings or Open Records Act within 10 to 20 business days, respectively.

If not appealed to the courts, these open meetings or open records decisions – some 250 to 300 each year -- have the force and effect of law. Unappealed decisions are not advisory. They bind the parties.

The courts – relieved of a substantial burden in reviewing most of these legal disputes – value the Attorney General's interpretation of the Open Meetings and Open Records Acts in those cases that reach them. The courts have held that the Attorney General's decisions are "highly persuasive" and should be given "great weight." They regularly quote, with favor, Attorney General's decisions that are appealed to them.

https://www.courtlistener.com/opinion/2461350/york-v-com/

In the recent dispute between the Cabinet for Economic Development and the Courier Journal involving access to records of Braidy Industries, the Kentucky Court of Appeals "adopted" the Attorney General's open records decision and affirmed the Courier's -- and the public's -- right of access to shareholder identities, quoting verbatim 12 full pages of the OAG's open records decision in its opinion.

https://law.justia.com/cases/kentucky/court-of-appeals/2019/2018-ca-001…

The body of open records and open meetings law that has developed over time is the guidepost for resolution of legal disputes. Attorneys General, past and present, have made a substantial contribution to it.

The candidate elected to that office must understand that he cannot ignore this well-developed body of law that reflects a judicially recognized bias favoring openness and a legislative presumption that "the formation of public policy is public business."

https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-498-dg-1…

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23042

Stated simply, the Office of the Attorney General may be a political one, but the open records and open meetings duties of the office must not be politicized.

The next Attorney General cannot subordinate the public's interest in transparent and accountable government to his own self-interest or personal agenda.

Failure to go on the record, as in Daniel Cameron's case, suggests a lack of candor that is inimical to Kentucky's open government laws.

We stand at a crossroad as we elect a new attorney general. Our laws are under legislative attack, and the level of public agency compliance has reached a new low. The next Attorney General will hold office for four to eight years. Kentucky's open government laws will live beyond his term of office, as robust -- we hope – on the day he leaves office as the day he takes office.

Mr. Stumbo has made clear his intention to ensure that this is the case. Mr. Cameron has not.

OPEN GOVERNMENT QUESTIONNAIRE FOR ATTORNEY GENERAL CANDIDATES

GREG STUMBO RESPONSE:

Coalition: How will you commit office resources to ensure that the Office of the Attorney General fulfills its statutory duties and meets statutory deadlines for issuing open meetings and open records decisions?

Stumbo: As I did during my prior term, I will staff the office or personnel responsible for meeting the statutory requirements for Open Records Act responses by the OAG. Prompt response to constituent requests will be an emphasis for my office.

Coalition: Do you believe that the attorney general should follow precedent established by the office and the courts in interpreting and applying the open meetings and open records laws?

Stumbo: Legal precedent is important to lawyers in many facets of their job. As Attorney General I will ensure that staff addressing or reviewing open records and open meetings issues are aware of precedent and make diligent search of updates to law or understanding across Kentucky and in sister states.

Coalition: The attorney general intervened in three cases in 2016 to defend the authority of the Attorney General's Office under KRS 61.880(2)(c) to request copies of disputed records for in camera inspection in open records appeals. Two of those cases, Kentucky Kernel v. University of Kentucky and Western Kentucky University v. Kentucky Kernel, are unlikely to be resolved by the end of 2019. Will you pursue both of these cases to defend the authority of the Attorney General's Office under KRS 61.880(2)(c). Please explain your reasons for pursuing, or not pursuing, these cases.

Stumbo: My office and staff will review those cases and act to fully defend the Attorney General's authority to request and inspect records under the Open Records Act parameters. I believe that the Attorney General should continue to have oversight over open communications and transparent government.

Coalition: What resources, if any, will you commit to improving open meetings and records compliance by public officials and increasing public awareness of Kentucky's open government laws?

Stumbo: Educating the public about their rights as outlined under Kentucky law will be important to my office. Citizens should know how the law protects them and each division in the Office of Attorney General should be responsible for educational outreach to organizations, local and city governments and the members of the public they serve. The Office of Attorney General must invest time in providing Kentuckians with the information they need to have the laws best serve them.

Coalition: If legislation is proposed that reduces the public's existing rights under the open meetings and records law, should the attorney general advocate to preserve the laws?

Stumbo: Bills and proposed laws that affect the rights of the public to understand and be involved in their government. All such bills should be reviewed by the Office of Attorney General. Within the parameters set by the Kentucky Constitution, my office will work with the legislature and the public to protect open government and transparency.

DANIEL CAMERON RESPONSES:

1. How will you commit office resources to ensure that the Office of the Attorney General fulfills its statutory duties and meets statutory deadlines for issuing open meetings and open records decisions?

Cameron: I believe in open meetings and records and recognize the important role that the Office of the Attorney General plays in ensuring transparency among public officials. I would place a priority on meeting the statutory deadlines for these decisions and allocate the resources as necessary and as they are available to ensure compliance.

2. Do you believe that the Attorney General should follow precedent established by the office and the courts in interpreting and applying the open meetings and open records laws?

Cameron: I believe that the role of the Attorney General is to enforce the laws that are passed by the General Assembly, signed into law by the Governor, and interpreted by the courts. I will of course review those precedents after being elected Attorney General, but that review would be colored by my belief that public records and open meetings laws are important to holding public officials accountable.

3. The Attorney General intervened in three cases in 2016 to defend the authority of the Attorney General's office under KRS 61.880(2)(c) to request copes of disputed records for in camera inspection in open records appeals. Two of those cases, Kentucky Kernel v. University of Kentucky and Western Kentucky University v. Kentucky Kernel, are unlikely to be resolved by the end of 2019. Will you pursue both of these cases to defend the authority of the Attorney General's Office under KRS 61.880(2)(c). Please explain your reasons for pursing, or not pursing, these cases.

Cameron: I take seriously the responsibility of the office to enforce and defend the laws passed by the General Assembly and the Constitution of the Commonwealth of Kentucky. As with any pending litigation, I will reserve final judgement until I have had the opportunity to diligently review it, along with all supporting information once I am elected Attorney General. However, I generally support open records and meetings laws and will advocate to protect the authority of the Attorney General's Office.

4. What resources, if any, will you commit to improving open meetings and records compliance by public officials and increasing public awareness of Kentucky's open government laws?

Cameron: I believe that compliance with open meetings and records laws are critical to holding ourpublic officials accountable and maintaining a functioning democracy. If elected, our office will engage and act as a resource for public officials to ensure they understand the standards that the law requires them to meet. We will also ensure that the public has access to these standards, so they have the information needed to hold their elected officials accountable. Under my leadership, we will enforce the law, and any those who flaunt open meeting and records requirements to betray the public trust will be held accountable.

5. If legislation is proposed that reduces the public's existing rights under the open meetings and records law, should the Attorney General advocate to preserve the laws?

Cameron: I will be an advocate for transparency and integrity among public offices and would express my support for open meetings and records to the legislature and the governor.