The Lexington Herald Leader today announced the welcomed resolution of a an open records lawsuit involving the newspaper’s right of access to records relating to a past member of the General Assembly. The  Legislative Research Commission — the GA’s administrative arm — denied the Herald Leader’s request in 2018.

https://www.kentucky.com/news/politics-government/article258056688.html

http://opinions.kycourts.net/COA/2021-CA-000634.PDF

The newspaper reports that the Kentucky Court of Appeals issued a published opinion on February 4 declaring that the “Kentucky General Assembly cannot withhold records related to a sexual harassment complaint filed against a state lawmaker.

“The appeals court said the Open Records Act entitles the Herald-Leader to view state records related to the complaint that a legislative staffer made in 2015 against former state Rep. Jim Stewart III, R-Flat Lick, and any investigations that resulted. The Herald-Leader agreed for the staffer’s name to be redacted.”

The court emphatically rejected multiple arguments advanced by Legislative Research Director Jay Hartz in support of the LRC’s denial of the newspaper’s — and public’s — right to know about a complaint of sexual harassment leveled against Stewart, the nature of the allegations, how egregious the allegations were, how thorough and impartial the investigation into the allegations was, and whether appropriate action was taken in response to the allegations.

Specifically, the Court of Appeals held:

“The General Assembly records policy does not present a nonjusticiable political question, as the General Assembly enacted KRS 7.119 for the express purpose of disclosing such records. [The newspaper’s] request to have the judiciary compel disclosure of legislative records is not barred by the Separation of Powers doctrine. Neither Section 39 nor Section 43 of the Kentucky Constitution shield disclosure of the documents, and the amended version of KRS 7.119 does not have retroactive application. The General Assembly’s policy of nondisclosure does not supplant its enactment of KRS 7.119, and the facts do not implicate the attorney-client privilege nor the attorney work-product doctrine. And finally, the award of attorney fees and costs pursuant to KRS 61.882(5) was not clearly erroneous. For these reasons, we affirm the summary judgment and award of attorney fees of the Franklin Circuit Court.”

It is a significant win for the Herald Leader after its four year battle for access to these public records. 

Unfortunately, the newspaper’s victory is partly overshadowed by the sad reality that the General Assembly has since excluded itself from the open records law in all records access disputes arising after June 29, 2021. 

https://apps.legislature.ky.gov/record/21rs/hb312.html

In enacting 2021 RS HB 312, the General Assembly declared itself — and the Legislative Research Commission — above the laws it enacted for itself and every other public agency across the state in 1976. In place of the open records law, the GA amended KRS 7.119 which affords the public limited access to legislative records — a term very narrowly defined — and deprives the public of the right to appeal the GA’s denial of records request to the courts.

In today’s opinion, the Court of Appeals made clear that the 2021 amendment of KRS 7.119 is not retroactive. “No statute shall be construed to be retroactive, unless expressly so declared,” the court affirmed. “‘Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application.’ The amended version of KRS 7.119 does not expressly provide for retroactive application; therefore, it cannot be applied to [LRC director Hartz] claim.”

The court also affirmed the newspaper’s right to recover attorney fees and costs. 

The question now becomes: Will the General Assembly exhaust it’s only remaining hope by petitioning the Kentucky Supreme Court for “discretionary review,” — driving up the cost born by taxpayers for the newspaper’s attorney fees — or will it take its lumps. 

Never underestimate the blindness and arrogance of Kentucky’s lawmakers.