The facts surrounding The State Journal's battle to obtain communications between Frankfort officials and the president/CEO of Kentucky Capital Development Corporation on matters ostensibly related to public business—that have apparently resulted in threats of legal action against the city—raise multiple open government red flags. The more secretive these officials remain, the more the public's interest is aroused.

1. Was the threat of legal action against the city conditioned on the occurrence or nonoccurence of a particular event, thus justifying the July 12 closed session under the open meetings exception for proposed or pending litigation? The meeting agenda describes the legal basis for the closed session as "EXECUTIVE SESSION PER KRS 61.810 (1)(C)LITIGATION ­ POTENTIAL LITIGATION REGARDING PAST PERSONNEL ACTIONS AND CLAIMS OF DISCRIMINATION AGAINST THE CITY OF FRANKFORT."

2. On what legal basis can a private law firm representing an undisclosed client issue threats of legal action against the newspaper for publication of public records?

3. How can the President/CEO reasonably expect to communicate with city officials on ostensibly public business relating to the agency she serves as a "private citizen?"

4. Why did the city agree to this characterization of the "private" communication in the wake of a closed session that resulted in its decision to officially respond?

5. What final action does the city anticipate taking that justifies its invocation of the preliminary documents exceptions?

6. Given the burden of proof to justify denial of an open records request that is statutorily assigned to the public agency, how can either KCDC, or its President/CEO, or the city successfully defend denials of records access that are so shrouded in secrecy?

Form the July 30 Frankfort State Journal:

"At the Frankfort City Commission's July 12 meeting, after spending an hour and a half in closed session,* the board voted unanimously to send a letter to Kentucky Capital Development Corp. President/CEO Terri Bradshaw.

*[The basis for this closed session, according to the meeting agenda, was identified as follows: "EXECUTIVE SESSION PER KRS 61.810 (1)(C)LITIGATION ­ POTENTIAL LITIGATION REGARDING PAST PERSONNEL ACTIONS AND CLAIMS OF DISCRIMINATION AGAINST THE CITY OF FRANKFORT."]

"Neither the letter nor Bradshaw's message to which it responded has been made public despite State Journal open records requests to the city and KCDC.

"It is unclear what the letters contain.

"The State Journal plans to appeal both organizations' decisions to withhold the records to the state attorney general.

"Further, an attorney representing an unnamed person who claims to be considering legal action against Bradshaw sent a letter to The State Journal acknowledging the newspaper's open records request four days after the request was filed. The letter, from Dennis Murrell of Middleton Reutlinger law firm in Louisville, claims that publication of those records would be defamatory to the client.

"'Any publication and/or release of any nature related to these false allegations would be defamatory and cause significant harm to our client,' Murrell wrote. 'Our client is strongly considering legal action against Ms. Bradshaw and would consider any attempts to disseminate her false allegations as part and parcel to her effort to defame our client.'

"Though KCDC's attorney has yet to officially respond to the newspaper's open records request, Bradshaw has denied disclosure of her letter because she says she sent it in her capacity as a private citizen.

"In City Clerk Chermie Maxwell's response to the newspaper, she echoed that point and added that it's the city's position that the material contained in either the Bradshaw letter or the city's response constitutes information of a 'personal nature' that would be an invasion of privacy and that the correspondence is 'preliminary.'

"Amye Bensenhaver, a retired assistant attorney general who wrote open records and open meetings opinions for 25 years, doesdn't believe the records are exempt from disclosure requirements.

"'Neither the city nor Bradshaw can evade the open records law by simply asserting that the communications were made by Bradshaw — and received by the city — in her private capacity,' Bensenhaver said. '… Regardless of how 'inconvenient or embarrassing' those communications are, they do not qualify under the exception for 'correspondence with a private individual' simply because Bradshaw claims to be communicating privately.

"'Were it otherwise, every public official would do so, and the open records law would be a nullity.'

"She also said that she thinks the city's communications don't qualify as preliminary documents because it gives no indication as to what final action they are preliminary. She called the city's response, and Murrell's letter, 'vague.'"