Politicization of the open records law is a serious problem.

On May 10, the Kentucky Attorney General issued an open records decision involving ProPublica and the State Board of Elections that confirms politicization of the rankest kind, not by the board but by the Office of the Secretary of State.

This time, the attorney general got it 100% right.

On February 1, ProPublica requested the same 1,090 records that the board released to Kent Wicker, an attorney representing Secretary of State Grimes, on two dates — the latest, February 1 — in response to Wicker's December 3 open records request.

ProPublica asked for electronic copies of the records and provided an email address.

On February 13, the board responded to ProPublica's request for the same records already compiled for, and released to, Grimes's attorney. This was well beyond the three day deadline for agency response.

The board notified ProPublica that it was "reviewing the files" and would make all nonexempt responsive records — consisting of 545 pages and not the 1,090 records released to Grimes's attorney — available on February 28.

The board subsequently attempted to extend its deadline for production of the records an additional 30 days.

ProPublica appealed to the attorney general, whose open records staff requested — pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3 — copies of the 1,090 pages of records for confidential inspection. The board responded by sharing 607 pages of responsive records with the AG's open records staff.

The board attempted to justify its earlier actions by explaining that the ProPublica request in dispute was one of ten requests ProPublica submitted; that the upcoming primary election and then current legislative session created a strain on its resources; and that ProPublica was not entitled to the same records Grimes's attorney received because some were shielded by attorney-client privilege and Grimes's attorney received them in his representative capacity.

Further, the board argued, "Secretary Grimes is the duly elected Secretary of State" and therefore "has the right under the Kentucky Constitution and state and federal law to access records of the agency."

ProPublica disputed each of these claims as well as the fact that, unlike the records Grimes's attorney received, the records finally released to ProPublica were "watermarked" in various places, thereby altering them and rendering them less suitable for publication.

(This reminded me of a 2013 appeal involving a request from a reporter for The Atlantic for photos of a staged murder/actual suicide crime scene that were intentionally distorted by the Kentucky State Police to make them unusable in the magazine. There, as here, the AG found that the agency's actions were illegal).

In the open records decision issued last week, the attorney general's staff found the following violations:

1. The board violated the law by improperly postponing ProPublica's access to the records previously compiled for and released to Grimes's attorney without a detailed explanation or legally recognized cause.

2. The board improperly charged ProPublica for paper copies of records that existed, and were requested, in electronic format.

3. The board did not prove that the 362 pages of records it withheld from ProPublica — and the attorney general — but released to Grimes's attorney, were protected from inspection by the attorney-client privilege.

4. The board violated the law by placing watermarks on the records released to ProPublica, thereby altering them.

5. The board violated the law by affording Grimes's attorney greater access to the same public records requested by ProPublica.

6. The board did not prove that the other five exceptions to the open records law on which the board relied in denying ProPublica's request permitted the board to withhold 121 additional records.

7. The board improperly denied access to records containing some personal information in their entirety rather than masking the personal information and releasing the remainder of the records.

8. The actions of the Office of the Secretary of State caused the board to subvert the intent of the open records law.

This last determination is, perhaps, the most damning.

The board defended its actions in a response to ProPublica's appeal:

"Upon the direction of Assistant Secretary of State Erica Galyon, the Board was directed to have all open records requests approved by the Secretary of State's office. In the case of Kent Wicker's open records request and [ProPublica's] open records requests, the responses were drafted under the supervision of Erica Galyon. Once drafted, they were presented to [the board's records custodian] to sign and reply with the responsive documents as assessed by the Secretary of State's office."

In sum, "the determination of the records redacted and released . . . was entirely handled at the direction of the Secretary of State's Office."

This is the second example of a constitutional officer abusing his or her authority to insinuate himself or herself into what should be a process devoid of political influence or interference in order to obstruct the public's right to know.

The first example is, of course, the influence and interference exerted on the Kentucky Retirement Systems by high ranking officials in the executive branch that resulted in the wrongful denial of a request for the actuarial analysis of the governor's plan to address the pension crisis prepared after the plan was publicly released in 2017.

This type of politicization of the open records process is a fairly recent and largely unprecedented abuse of power aimed at perverting the law.

Thankfully, the attorney general's open records staff twice exposed these shocking violations in well reasoned and persuasive analysis that should be affirmed if appealed to the circuit court.

The governor's staff has indicated that he will appeal the AG's open records decision relating to the actuarial analysis.

It seems unlikely, however, that the Board of Elections will appeal the open records decision since the Secretary of State's Office presumably no longer calls the shots.

With the enactment of 2019 HB 114, which contained an emergency clause and therefore took immediate effect, Grimes is now an ex-officio, non-presiding, and non-voting member of the board. She should be divested of her authority to control the flow of records and information out of the Board of Elections.

Whatever the pros and cons of this new statute, it represents an important check on the Secretary of State's abuse of her power to thwart the open records law.