For the second time in recent weeks, the Kentucky Attorney General has determined that the Fayette County Public Schools violated Kentucky's open government law -- on this occasion, the open records law -- when officials failed to respond within five business days to a request about costs related to the school district’s rebranding.

https://www.kentucky.com/news/local/education/article290299549.html

https://www.ag.ky.gov/Resources/orom/2024-OROM/2024/24-ORD-163.pdf

Earlier this month, Coleman ruled that FCPS's Cassidy Elementary School-Based Decision-Making Council violated the open meetings law by conducting anonymous votes on the elimination of art courses at the school, ignoring the law's requirement that "minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23051

https://www.ag.ky.gov/Resources/orom/2024-OROM/2024/24-OMD-160.pdf

On June 4, Jerry Grooms submitted an open records request to FCPS for “all documents related to rebranding costs” and its new slogan.

Although the open records law mandated a final written response to  Grooms' request from FCPS, he had received no response as of June 18 prompting him to initiate an appeal to the Attorney General. FCPS thereafter released the requested records.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51394

In an open records decision we applaud, the Attorney General flatly rejected FCPS's argument that because the records were belatedly released, the issue on appeal was "moot" and the Attorney General must decline to issue an open records decision.

The Attorney General concluded, "FCPS violated the Act."

Although both decisions reflect a shocking disrespect for Kentucky's open government laws -- in what world do elected or appointed members of a public agency conduct votes on final agency action by secret ballot -- it is the Grooms open records decision that demands a closer look.

Why? Because public agency refusal to comply with the five day statutory deadline for response to an open records request, or to responsibly observe statutory alternatives, is an open records violation of epidemic proportions.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51391

This new direction in open records interpretation -- supported by a 2021 amendment to KRS 61.880(4) declaring that "delay past the five day period" and "excessive extensions of time" subvert the law -- is the only hope we have for eradicating this increasingly widespread -- and singularly frustrating violation.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51394

Last year, the Jefferson Circuit Court affirmed an Attorney General's open records decision that reached the same conclusion.

https://www.ag.ky.gov/Resources/orom/2023-OROM/2023/23-ORD-007.pdf

Following lengthy delays in responding to an open records request submitted to Louisville Metro, requester Lawrence Trageser appealed to the Attorney General. The Attorney General rejected Louisville Metro's claim that post-appeal disclosure of the records Trageser sought "mooted" the appeal and precluded the Attorney General from issuing an open records decision as otherwise required by law.

Compounding its error, Louisville Metro appealed the Attorney General's adverse ruling, suing Trageser in Jefferson Circuit Court.

In Louisville County Metro Government v Lawrence Trageser, Judge Eric Haner declared:

"Louisville Metro’s position [that the Attorney General is required to 'moot' an appeal if all records are provided after the appeal is filed] is unreasonable because it would allow any public agency to extend the five-day requirement under KRS 61.880(1) unilaterally by forcing a requester to file a complaint with the Attorney General before responding to his request for records."

https://kyopengov.org/blog/defending-its-right-violate-open-records-law…

Make no mistake. This ostensibly mundane ruling -- and the Attorney General's consistent position on this issue -- may finally light a fire under public agencies that take the unlawful position that they can "extend the five-day requirement under KRS 61.880(1) unilaterally by forcing a requester to file a complaint with the Attorney General before responding to his request for records." Persistent failure to comply with the five day deadline for responding to open records requests -- as has been the case with Louisville Metro -- may result in the imposition of penalties and attorneys fees on the agency.

If the value of information is indeed a function of time, there may be no more critical recognition by the courts, and the Attorney General, in preventing public agencies from rewriting the open records law to suit their convenience -- at the expense of the public's right to know.

https://casetext.com/case/fiduccia-v-us-dept-of-justice

Meanwhile, we strongly urge Fayette County Public Schools -- which has its own hitherto unnoticed pattern of noncompliance -- to return to the open government classroom to improve its open records and open meetings skills -- or risk an embarrassing and expensive outcome.