News of a seventh charge against an embattled Marshall/Calloway County circuit court judge — facing discipline from the Judicial Conduct Commission — continues to raise eyebrows.

And this charge has public records access implications. 

In April, the Administration Office of the Courts denied a records request filed by public radio affiliate WKMS for a copy of a video of the interior of the Marshall County Courthouse.

The video was believed to show Judge Jamie Jameson “walking around the courthouse in his underwear.” 

https://wfpl.org/ky-judge-accused-of-attempting-to-pressure-public-radi…

The new disciplinary charge leveled by the Judicial Conduct Commission stems from Jameson’s attempt to use his influence to “kill” the  bizarre story to which the video related by contacting “higher-ups at Murray State University, which holds the license for WKMS.”

The Judicial Conduct Commission charges that Jameson:

“told [WKMS station manager Chad] Lampe you had already spoken to the President of the University and you told Mr. Lampe the President was not happy. You asked Mr. Lampe to confirm that the news station was not going to run a story about the camera footage of you walking around in the courthouse in your underwear.”

Picking up the story, Louisville public radio affiliate WFPL reports:

“WKMS news director Derek Operle said he had already decided not to appeal the records request denial when he got a call from Lampe, saying he had spoken to the judge.”

This is where public records access enters the story. 

Although the Judicial Conduct Commission characterized the WKMS request as an “Open Records Act request,” the request was not treated as such by the Administrative Office of the Courts. 

Kentucky’s courts and judicial agencies are identified as “public agencies” at KRS 61.870(1)(e) of the Open Records Act. But they removed themselves from the application of the Act in a 1978 case, expressing the opinion that “the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation.” 

https://law.justia.com/cases/kentucky/supreme-court/1978/570-s-w-2d-617…

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390

In the wake of a scathing AOC audit by Auditor of Public Accounts Mike Harmon, Kentucky Supreme Court Chief Justice John Minton announced a major change in policy  in 2017.  The Supreme Court unanimously approved a rule opening the records of the Administrative Office of the Courts to limited public access. 

https://amp.courier-journal.com/amp/559191001

https://kycourts.gov/Courts/Supreme-Court/Supreme%20Court%20Orders/2017…

https://kycourts.gov/Pages/open-records-request.aspx

The Supreme Court rule establishing limited rights of public access to administrative records imposes less stringent requirements on AOC than the open records law imposes on other state and local public agencies.

(The General Assembly and Legislative Research Commission have also excluded themselves from the open records law. In 2021, the legislature statutorily exempted itself and its administrative arm, the LRC, from law, imposing even less stringent requirements on itself than the courts imposed on AOC in 2017. See, https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51395)

The Supreme Court rule provides for written requests for “specifically” described records that “include identifiers to assist the custodian” — more onerous requirements on records requesters not found in the open records law. It contains an exception for:

“Documents, records, or information including, but not limited to, security plans or security recordings, the disclosure of which could jeopardize the safety of judges, court staff, jurors, or the public, or could jeopardize the integrity of the court’s facilities, records, or the court’s administration of justice and its operations[.]”

This, presumably, was the basis on which AOC denied the WKMS request for video footage of the disrobed judge. It was the basis on which AOC denied WPSD-TV anchor Todd Faulkner’s April 5 request for the same video footage.

And it was the basis for AOC’s denial of an entirely unrelated July 8 request for video footage of the “the [Spencer] Circuit Court Annex building,

specifically the interior of the building where the court security guard is stationed at the front door entrance” filed by Lawrence Trageser — a controversial open government “watchdog.”

Although WKMS elected to forego an appeal of AOC’s denial, WPSD anchor Todd Faulkner and “Spencer County Watchdog” Lawrence Trageser requested reconsideration of AOC’s denial by Chief Justice Minton — as provided for by the Supreme Court Rule. 

In both instances, their requests for reconsideration were denied. Justice Minton explained that, in each case, the request was “denied because releasing the security footage could jeopardize the safety of court officials and employees and the integrity” of the respective judicial facilities. 

Essentially, a restatement of the exception in the Supreme Court rule without elaboration. 

Trageser took his appeal one step further under the Supreme Court Rule, requesting reconsideration by the full Supreme Court. The full Court rejected that request without explanation. 

Trageser thereafter submitted a request to AOC for copies of:

“All appeals filed to the Chief Justice of the Kentucky Supreme Court, involving open records requests denied by AOC. [and] the decisions rendered by the Chief Justice of the Supreme Court on those appeals.

 

“All appeals filed to the full body of the Kentucky Supreme Court, involving open records requests denied by AOC and the Chief Justice of the Kentucky Supreme Court [and] the  decision rendered by the Kentucky Supreme Court on those appeals.”

AOC honored this request, producing records responsive to an August, 2022, request relating to kycourts.gov; Faulkner’s April, 2022, request for the video footage referenced above; and a January, 2022, request for “copies of bonds for Judge John David Simcoe and Judge Kimberly W. Shumate.”

Aside from Trageser’s failed July, 2022, requests for reconsideration of AOC’s denial of his request for Spencer County Courthouse video footage, these were the only responsive records AOC produced.

From this we can deduce that the mechanism for a legal challenge to AOC’s denials of records requests has rarely been employed, and never successfully. We can further deduce that when it is employed, the Court provides limited explanation for its affirmation of AOC’s denial. 

In an open records appeal, the public agency must prove that its denial was proper — “[t]he burden of proof in sustaining the action shall rest with the agency” — and the attorney general or court typically analyzes the arguments advanced by the parties  at some length.

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

The absence of legal analysis is disappointing, but credit is due the Court for at least observing the Rule it established for itself in 2017. 

As noted, the General Assembly adopted an absurdly narrow records access statute in 2021. The statute includes a mechanism for appeal to the Legislative Research Commission — the 16 member statutory committee made up of majority and minority Senate and House leadership that meets on an irregular basis. 

The Kentucky Open Government Coalition appealed the denial of a request for legislative records in 2021 that died due to Commission inaction. Because the statute precludes judicial review of that denial, we had no recourse. 

https://kyopengov.org/blog/if-youve-wondered-what-chance-success-appeal…

This prompted us to observe:

“[T]he General Assembly is not only loath to observe the records access laws it enacts for all other state and local public agencies, it is also loath to observe the records access laws it enacted for itself earlier this year.”

All the more reason to vigorously defend the public’s surviving right of access to state and local public agency records.