From today’s Courier Journal.
To hold officials accountable, statutory deadlines for public records must be upheld:
Opinion
Amye Bensenhaver
“The Courier Journal’s recent story, ‘Louisville Metro falls further behind in releasing public records as Kentucky law requires’ suggests the following lede:
“‘The value of information is partly a function of time.’
“What does this quotation from Fiduccia vs. U.S. Department of Justice — a 1999 federal case in which the Department of Justice kept a public records requester waiting for 15 years instead of the 20 days required by the Freedom of Information Act — mean?
“It means that in enacting laws aimed at securing the public’s right to know, lawmakers recognized that as time passes interest fades, demands for change are blunted, and the news cycle moves on to the next local, state or national controversy or crisis.
“Urgency yields to bureaucratic inertia.
“It means that the public learned about the death of yet another Louisville Metro Department of Corrections inmate as we awaited the release of records by local officials about the circumstances of the death of the last inmate... or the inmate before him, or the inmate before her...
“It means that children under the supervision of the Cabinet for Health and Family Services continued to suffer abuse and die as state officials obfuscated and consciously delayed the release of records exposing inadequate staffing.
“It means that records were unavailable to a community deeply fractured and enraged by — and desperately in need of answers about — the murder of a young Black woman on whom Louisville Metro Police Department officers were serving a no-knock warrant.
“Whether the issue was corruption at the highest level of the University of Louisville’s or Kentucky State University’s past administrations or a local school district; whether Metro government officials acted irresponsibly in offering an ultra-generous bid package to Amazon in exchange for locating its headquarters in Louisville or small-town officials bent procurement laws to give an unfair edge to a local towing company on a city towing contract, it means that needed remedial action might be indefinitely forestalled — or never taken — and officials might never be held to account when public agencies ignore statutory deadlines for production of public records.
“Public records laws, like Kentucky’s Open Records Act, ‘doubtless pose practical difficulties for federal, state and local agencies, ‘ but ignoring statutory deadlines for agency responses — often with impunity — ‘vitiates any practical utility the laws may have.’
“In Fiduccia, the federal court was unwilling to abandon the principle of timely access to public records as an accommodation to the agency’s burden — real or imagined — and suggested that DOJ presents its concerns to Congress.
“Nearly a decade after Fiduccia was decided, the Kentucky Supreme Court offered the same guidance to the Kentucky Department of Corrections in a case involving an inmate’s request for the nonexempt records in his inmate file.
“Rejecting DOC’s claim of an unreasonable burden, the Court in Commonwealth vs. Chestnut admonished:
‘Any relief here must come from the General Assembly in the form of restricting access to public records, extending the time period for state agencies to respond to open records requests, or providing necessary additional funds to allow state agencies to comply timely and fully with open records requests.’
“The Kentucky General Assembly has, in recent years, acted on the first two recommendations, dramatically restricting access to public records by creating a ‘residents only’ requirement for use of the open records law and enacting multiple new exceptions. Just last year, it permanently extended the three business day deadline for agency response to records requests to five business days.
“The time has come for the General Assembly — and local officials — to abandon the ‘misguided belief that the Open Records Act is merely an ideal – a suggestion to be taken when it is convenient and flagrantly disregarded when it is not’ and to provide ‘necessary additional funds to allow public agencies to comply timely and fully with open records request.’
“The Open Records Act is not, the Kentucky Supreme Court admonished in Cabinet for Health and Family Services vs Courier Journal, an ideal or a suggestion —much less the nuisance many agencies consider it — ‘It is the law.’
As the court observed in Fiduccia, lawmakers — both state and federal — ‘gave agencies days, not [weeks, months or] years, to decide whether to comply with requests’ in no small part because ‘the value of information is partly a function of time.’”
