Not long after Matt Bevin took office in 2016 we learned that two high profile open records cases had been settled.
The cases involved public access to records maintained by the Cabinet for Health and Family Services relating to fatalities or near fatalities of children under its supervision and three newspapers, the Todd County Standard, the Courier Journal, and the Lexington Herald-Leader.
The cases made headlines for several years. They ended in a series of rulings against the Cabinet and the imposition of penalties and attorneys' fees in an amount exceeding $1 million. The cases also resulted in the creation of an independent review board to examine the circumstances giving rise to child fatalities or near fatalities and to recommend needed change.
CHFS had refused to accept defeat. It had petitioned the Kentucky Supreme Court for discretionary review of the Court of Appeals' opinions in the cases which affirmed the public's right of access to the records.
In 2016, the newspapers settled for substantially reduced penalties — saving taxpayers over $500,000. But, above all else, the child fatality and near fatality records were made public and continue to be made public. Systemic problems in child protection are no longer shielded from public scrutiny.
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On November 7, Jim Carroll, president of Kentucky Government Retirees, tweeted that his group will ask Governor-elect Andy Beshear to release the actuarial analysis commissioned by the Kentucky Retirement Systems of departing Governor Matt Bevin's 2017 "Keeping the Promise" pension reform plan.
The State Budget Director, who answers directly to the governor, and who somehow managed to secure exclusive "custody" of the actuarial analysis bought and paid for by Kentucky's taxpayers, has resisted disclosure of the record in the face of well-reasoned and legally unassailable rulings against him by the Kentucky Attorney General and the Franklin Circuit Court. He appealed the circuit court ruling to the Kentucky Court of Appeals on July 1. Briefs were filed in October and November.
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Each stage in these appellate proceedings unnecessarily drives up the expense to the taxpayer (as attorneys' fees continue to accumulate) and strains judicial resources.
If the cases involving the Cabinet for Health and Family Services' child fatality and near fatality records are precedential, there is no impediment to Governor Andy Beshear, once sworn in, settling the case and releasing the actuarial analysis.
The actuarial analysis belongs to the office of budget director, not the office holder, John Chilton — assuming he was *ever* the rightful custodian of the actuarial analysis. The case will pass to Governor Beshear to pursue (or not to pursue). Since it was his office that first declared the actuarial analysis a nonexempt open record, it seems unlikely that he will be inclined to pursue litigation.
And while he is at it, Governor Beshear might also review the other open records cases involving executive branch agencies that continue to clog the courts.
A quick glance confirms at least seven other cases now in the Court of Appeals, four involving the Kentucky State Police, and one each involving the Finance Cabinet, the Labor Cabinet, and CHFS. These cases can and should be settled without further litigation.
The majority of these cases involve allegations of public employee misconduct/sexual harassment. Although open records advocates welcome strong judicial reaffirmation of existing caselaw, the legal analysis in such cases is well-established. Another case involves the Courier Journal's right of access to KSP's uniform citation database. Two appeals, both involving the Kentucky Center for Investigative Reporting, Finance, and Labor, focus exclusively on the award of attorneys' fees against the agencies.
https://www.courier-journal.com/story/news/2019/03/12/kentucky-state-po…
https://kycir.org/2019/09/10/kycir-state-cabinets-appeal-order-to-pay-k…
https://www.wdrb.com/in-depth/kentucky-state-police-sues-wdrb-in-effort…
At least two cases remain in the Franklin Circuit Court. These cases involve the Poor Peoples' Campaign and the KSP's and the Governor's denial of the PPC's request for records relating to the "two in and two out policy" that was relied upon as the basis for limiting member access to the Capitol. The policy itself has never been produced â although KSP described it in a letter to Reps. Attica Scott and George Brown as "promulgated" and "enacted." Governor-elect Beshear opined that the policy was illegal. Why, then, would he pursue litigation aimed at secreting away records supporting its formulation?
https://www.courier-journal.com/story/news/politics/2019/02/07/kentucky…
Given the current administration's propensity for litigation in matters pertaining to adverse open records rulings, there are almost certainly other cases involving executive branch agencies that are pending. Like the CHFS case, which might have dragged on indefinitely, these cases can be resolved by settlement and the release of the disputed records.
The judicial system will be relieved of an unnecessary burden, the taxpayers will be relieved of the monetary burden of further litigation, and the public's right to know will, at long last, be vindicated.
A final thought. Governor Beshear may also want to consider removing the LobbyGuard system installed in the Capitol and in the Annex in 2019. This highly invasive "security" system raises significant open meetings issues and exposes the state to yet another potentially successful legal challenge.
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