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The Kentucky Open Government Coalition has once again compiled its list of the Top Ten Open Government Stories of the year. In 2021, lawmakers, public officials, public agencies, and a few individuals planted hundreds of seeds, and shoveled on copious amounts of hollow "commitments" to transparency as fertilizer, providing undeniably fertile ground for our selections.

1. New laws impede the public's right to know

Stalled by COVID in 2020, state lawmakers seized the opportunity to erect statutory barriers to public access in 2021. In spite of organized media and stakeholder opposition, new laws were enacted that resulted in:

• A new exception to the open records law for inspection of photographs or videos (excluding body cam video) that depict the death, killing, rape, or sexual assault of a person – ignoring the value of bystander and surveillance videos in holding police and corrections officials, among others, accountable and ignoring the existence of the decades old privacy exception that protects these photos and videos if no public interest is advanced by their disclosure.

Questions have been raised about the intended scope of the exception. Is it meant to apply to the moment of death only or, more broadly, the period before and after. The exception has already been invoked to deny the public access to jail surveillance video depicting corrections employees' responses to inmates' medical crises and deaths.

• A bill package quietly introduced in committee as a substitute for a bill "to introduce gender neutral language to statutes relating to financial institutions," and passed out of the House of Representatives in less than 48 hours that:

1. restricted the use of the Kentucky open records law to Kentucky residents, narrowly defining that term "resident" until lawmakers were persuaded to broaden it;

2. mandated – later amended to "permitted" – the use of a standardized open records request form;

3. extended the deadline for agency response to an open records request from three business days to five business days;

4. introduced two new exceptions to the open records law, one so vaguely worded ("all public records or information the disclosure of which is prohibited . . . by state law") -- when juxtaposed with an existing exception for records made confidential "by enactment of the General Assembly" -- that its purpose remains a mystery; and

5. removed the General Assembly and the Legislative Research Commission from the open records law, insulated the legislature's denial of records requests made under KRS 7.119 – lawmakers' "equivalent" of the open records law – from judicial review, and created an exclusive mechanism for internal review of those denials.

As expected, the residency requirement has created impediments to requesters inside and outside the Commonwealth. Nonresidents needing Kentucky records – and, yes lawmakers, that need legitimately exists -- have been forced to locate willing residents to file their requests, and some public agencies have improperly demanded proof of residency as a condition of fulfilling requests.

The "permissive" standardized form has, in some places, been treated as mandatory. Requesters have been forced to accept (and pay for) hardcopies of electronic records at their physical addresses (rather than receiving electronic copies at their email addresses).

And that KRS 7.119 mechanism for review of LRC's denial of requests for General Assembly or LRC records? In what is believed to be one of the first tests of the review mechanism, lawmakers ignored the appeal. Months after the appeal was filed, LRC's denial was deemed affirmed with no consideration.

2. Redistricting behind closed doors

Ignoring requests from the Kentucky League of Women Voters for the appointment of an advisory commission to conduct open meetings and receive public input on the redistricting process -- like those commissions with a primary or advisory role in 21 states -- Republican lawmakers shuttered the process in Kentucky. Although lawmakers pointed to "a few open committee meetings about redistricting" and receipt of "some comment," public objections to the lack of transparency in the redistricting process fell on mostly deaf ears.

Lawmakers released House district maps on December 30 -- five days before the start of the 2022 legislative session -- and expect to release state Senate and U.S. congressional district maps during the first week of the session. Critics, including minority lawmakers, characterize the limited disclosure and lack of detail as "an attempt at fake transparency" and express continuing concern that "it wasn't an open and transparent process."

3. Legislative impeachment proceedings

The 2021 Kentucky Impeachment Committee – which met from January 11 to February 23 --touted a "major change" in its proceedings from impeachment proceedings of the past. Despite claims that it would not consider impeachment petitions filed against Governor Beshear, Attorney General Cameron, and Rep. Goforth "behind closed doors," the committee conducted more than 16 hours of impeachment business in closed session and virtually no business in open session. Having already dismissed the petition to impeach Goforth – based on expert testimony that a legislator cannot be impeached -- the proceedings culminated in a 4.5 hour closed session and a recommendation that no further action be taken on the petitions.

The committee released a summary report of its recommendations, but the verbal "give and take" that yielded those recommendations remains a mystery.

4. University secrecy

Financial mismanagement on a grand scale brought Kentucky State University to the brink of ruin -- resulting in a state takeover, the hasty departure of President Christopher P. Brown, and a request for a $23M bailout. This emerged as a major story in 2021. While regents declared they were wholly unaware of the "liquidity crisis," the university took action to silence the single regent who blew the whistle on the Brown administration, a staff member who was fired soon after a State Journal article appeared in which she discussed the crisis. Meanwhile, the university and its foundation continued to stonewall media open records requests. To avoid disclosure of records relating to Brown and his expenditures, the KSU Foundation sued The State Journal. The foundation challenged a favorable attorney general ruling -- obtained by the newspaper -- that mirrored a 1992 Kentucky Supreme Court opinion declaring the KSU Foundation a public agency for open records purposes. That case is pending in the Franklin Circuit Court.

Western Kentucky University continued to resist the Heights Herald's efforts to access sexual harassment investigative records following a 4½ year legal battle that the university naively expected to conclude with the production of "seriously over-redacted" records. Attorneys for the newspaper indicate that the legal battle will continue.

The secrecy surrounding WKU's Name and Symbols Task Force generated additional concern. Formed in 2020 – and comprised of nine faculty members, one regent, and one student – the task force was charged with recommending changes to "problematic names" on the WKU campus. It conducted no public meetings and made no effort to comply with the open meetings law. Members agreed (or were required) to sign nondisclosure agreements which a university spokesperson later described as "extremely common" at universities for matters that "could be devisive or controversial." Subsequent reporting confirmed that the practice was widespread at WKU.

In December, veteran WKU administrator and 25 year general counsel Deborah Wilkins – who was described as "a force for transparency at WKU" -- was "relieved or her duties" and "scrubbed from the university's website." University administrators were described as "tight lipped" about the reasons for Wilkins' dismissal. They were similarly tight lipped a few days later when WKU's Board of Regents "quietly" (without public discussion) approved 25% to 50% pay raises for many administrators against the backdrop of staff and faculty raises of 1.5% and tuition hikes.

We won't address recent affronts to open government at the University of Louisville and the University of Kentucky, but would be remiss in failing to note that in November, the Kernel reported a major backlog of open records requests at UK (the public agency censured in March by the Kentucky Supreme Court for its handling of open records requests). The university attributed the backlog to the absence of the records custodian and the loss of her assistant – an excuse to which past attorneys general have been largely unsympathetic.

5. The Kernel case concludes in victory – the Heights Herald case picks up steam

In March, 2021, the Kentucky Supreme Court issued a decisive victory to The Kernel Press in its protracted legal battle with the University of Kentucky for access to records relating to the university's investigation into student allegations of sexual harassment leveled against tenured entomology professor James Harwood. The Supreme Court excoriated the university for its handling of the request and rejected the university's preliminary documents and Family Educational Rights and Privacy (FERPA) arguments. The Court returned the case to the Fayette Circuit Court for review of the university's "specific privacy interest exemption claims as to the specific redacted documents and proposed redactions."

Negotiation ensued and the Kernel received heavily redacted copies of the disputed records in May. UK continued to resist the newspapers demands for fuller disclosure about Harwood (to assess the seriousness of the professor's conduct, the thoroughness of UK's investigation, and the appropriateness of UK's response).

In August, the Kernel announced that it would not take UK back to court over continuing university recalcitrance and risk undermining the "progress made in the Kentucky Supreme Court win."

In an August editorial, the Kernel summarized the six year legal juggernaut:

"UK tried to play the long game. In reality, UK has shown its willing to put the safety of its students at risk in order to maintain an appealing image. But in the end, after six long years of fighting Kernel journalists, advisors, and attorneys, UK has reached the same outcome it would have by following the law and turning investigative documents over to the Kernel. Thanks for playing, UK. But when we lose sight of the truth, no one wins."

Not long after the Court issued its opinion favoring access to university sexual harassment investigative records, WKU agreed to release its own long-disputed investigative records to the Heights Herald. The university subsequently disclosed 1,896 pages of heavily redacted records, signaling – in Heights Herald attorney Michael Abate's view – that the university was acting in "bad faith" and a "continuation of a culture that is totally averse to transparency." Abate has indicated that the Heights Herald is prepared to continue the battle in court.

6. The secret report that cost taxpayers $1.2 million

The Kentucky Public Pension Authority resisted multiple demands that it release a report – for which Kentucky taxpayers bore the cost of $1.2M -- purportedly documenting a New York law firm's investigation and findings into "specific investment activities conducted by the Kentucky Retirement Systems to determine if there are any improper or illegal activities on the part of the parties involved" that are the subject of litigation involving major hedge fund firms.

KPPA contracted with the New York law firm, Calcaterra Pollack, in late 2020, and Calcaterra Pollack delivered the final report – which was shared with the Kentucky Attorney General – in May 2021.

KPPA denied open records requests submitted by the Courier Journal, the Herald-Leader, Kentucky Government Retirees – a labor organization with 15,500 supporters that advocates on pension issues for retired public employees – and the Kentucky Open Government Coalition, among others. KPPA characterized Calcaterra Pollack as its "legal representative" and invoked the attorney-client privilege and work product doctrine in support of its denial of multiple requests. The Attorney General also denied open records requests for the report.

Public interest in KPPA's disdain for the public's right to know seems to have waned, but the issue remains an urgent one. Can a public agency evade accountability, and the open records law, by contracting with a private law firm – at taxpayers' expense -- to conduct an investigation into the public's business and possible abuse of the public trust, then avoid accountability by invoking the attorney-client privilege? In at least one unrelated case involving a private attorney's investigative report produced under contract with a public agency, the Franklin Circuit Court in 2020 said no, "The taxpayers paid for this report. They have a right to review it in full."

7. The ongoing COVID crisis, coupled with disruptions at public meetings, result in modifications in meetings practice

Problems surrounding the Kentucky General Assembly's intent and methodology in extending 2020's Senate Bill 150 temporary modifications to the open meetings law into 2021 – including a provision for video teleconferencing of public meetings and "virtual" public participation – were eclipsed by the controversy surrounding public comment. Agencies explored various options to preserve public comment, including email comment, generating concerns about meaningful public input.

Kentucky's open meetings law establishes the public's right to attend public meetings, and to see and hear the meeting, but does not establish the right to participate by comment.

As agencies returned to in-person meetings and resumed in-person comment in 2021, new challenges arose. Controversial topics ignited heated debate and threats of violence. These disruptions prompted public agencies like the Jefferson County Board of Education to suspend in person comment and return to email comment.

In November, an attorney filed suit in Campbell Circuit Court challenging the Campbell County Board of Education's requirement that attendees at board meetings wear masks. The plaintiffs allege that the requirement violates that section of the open meetings law which provides that "[n]o conditions other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency." The case resulted in the board's decision to cease in-person, and returned to video teleconferenced, meetings. It is pending.

8. Police accountability still in the news

In January, Louisville Metro released the $190,000 taxpayer funded Hillard Heintze audit of the Louisville Metro Police Department – an agency plagued by public mistrust born, in part, of secrecy and defiance of the open records law. The report, awkwardly designated "confidential and proprietary" on every one of its 155 pages, contained no reference to open records compliance or the public's right to know.

Not surprisingly, the consultant's recommendations did little to stem the tide of open records disputes/litigation involving access to LMPD's use of force investigations and police disciplinary records.

A new wrinkle emerged in July when the Courier Journal reported that LMPD may have "intentionally dodged a paper trail" to evade open records disclosures relating to its decision to demote Maj. Aubrey Gregory. Attorneys for the Courier worried that this signaled "a new era" where agencies avoid accountability "simply by not creating records in the first place." In November, the Courier reported on a new police contract that included provision for the hasty destruction of "informal" complaints of police misconduct. Governing state records management law does not recognize a distinction between "formal" and "informal" complaints.

Governor Beshear's announcement in mid-November that his 2022 budget request for the Kentucky State Police would include $12.2M to equip Kentucky State Police troopers with body cameras for the first time followed an in depth investigation into police shootings in rural areas by the Kentucky Center for Investigative Reporting, WDRB's September Sunday Edition, "Lack of trooper cameras clouds Kentucky State Police cases," and a Lexington Herald-Leader editorial that concluded:

"Those who vow to protect and serve should be more interested in telling the public about their faults and those of other police departments. The thin blue line of silence serves no one, particularly not police themselves. Its time for them to do better and develop a 'standard operating procedure' on transparency and accountability. Being accountable to no one serves no one."

9. The battle for public access to public official and employee communications about public business on private devices and accounts

In July, Attorney General Daniel Cameron issued the first of a series of open records decisions resurrecting a widely repudiated 2015 decision by former Attorney General Jack Conway. Both ignored caselaw, and years of internal agency authority, recognizing that "it is the nature and purpose of the record, not the place where it is kept" that determines its status as a public record. Both ignored the plain text of the open records law and the definition of the term public record which includes documentation, regardless of physical form or characteristics, that is "prepared, owned, used, in the possession of, or retained by a public agency." Conway, and later Cameron, determined that because public official/employee communication about public business conducted on private devices or accounts was not "possessed" by the public agency the official or employee served, it was not a public record.

Following the Kentucky Department of Fish and Wildlife Commission's denial of the Kentucky Open Government Coalition's open records request for emails and texts relating to Commission business sent and received on commissioners' private devices and accounts, the Coalition filed suit in Franklin Circuit Court against the Commission on September 3. The Coalition is represented in the case by First Amendment and open records law experts Michael Abate, Jon Fleischaker, and Rick Adams of the Louisville law firm Kaplan, Johnson, Abate, and Bird.

Abate asserts that the case presents "one of the most important Open Records issues ever to arise under the Act," and one that, if not decided in favor of the Coalition and the public, "will gut the Open Records Law."

The parties have filed cross-motions for summary judgment. Judge Thomas Wingate heard oral arguments in the case on December 6, and the parties await an opinion.

10. Kentucky Attorney General finds new and creative ways to undermine the public's right to know

In September, Courier Journal reporter Andy Wolfson explored "How Attorney General Daniel Cameron has eroded Kentuckians' access to public records." Wolfson concluded, "The fact is, Cameron and the lawyers under him have done more in his first two years in office to dramatically curtail the public's right to know than any attorney general in recent memory."

Wolfson analyzed the numbers, determining that "Cameron's staff affirmed government agencies rulings in full 54% of the time compared with 44% under Beshear." Cameron's office, Wolfson found, "tended to give the benefit of the doubt to law enforcement and government officials with rulings in several areas, expanding their ability to keep information secret." Kentucky Open Government Coalition director Amye Bensenhaver stated it more succinctly, asserting that Cameron regularly "rubber stamped" agency denials. Kentucky's most widely recognized champion of open government, attorney Jon Fleischacker, declared that Cameron "misstated the law" to give public agencies "a free pass."

That "free pass" has manifested itself in other ways. Cameron has sparingly utilized his statutory authority to review disputed records to independently confirm or refute an agency's reliance on an exception to the law. He has rarely employed the same statute to solicit additional documentation from the agency to expand his understanding of the legal issue before him. This is consistent with Cameron's 2020 request to the Warren Circuit Court that the court dismiss former Attorney General Beshear's intervening complaint -- in WKU's lawsuit against the Heights Herald -- to clarify the scope of that statutory authority to review disputed records or solicit additional documentation.

In a more subtle move, Cameron "demoted" "Government Transparency" from an agency "Priority" -- with a direct link on the homepage of his website -- to a "Resource," requiring the user to dig deeper into the website for information about open records and meetings.

Finally, Cameron made abundantly clear that he does not believe he is constrained by the body of internal agency authority issued by past attorneys general in resolving open records and open meetings appeals. He has, as Wolfson notes, deviated from past decisions without legal justification (such as a change in the law or an appellate opinion repudiating past attorneys general decisions). He has demonstrated an obsession with brevity in those decisions that frequently does violence to their value to the public.

Facts and arguments, it appears, are cherry picked to advance a predetermined agenda driven outcome.

Cameron's office declares that its open records and open meetings decisions are guided by "the rule of law." The "rule of law" in Cameron's case is the office playbook for eliminating those pesky decisions issued by his predecessors that have "caused inconvenience or embarrassment to public officials or others."

So there you have it. Let's hope 2022 is less unkind to the public's right to know.


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