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Lawmakers politicize open records laws

From States Newsroom affiliate, Indiana Capitol Chronicle: 

"Indiana senators on Monday declined to excise language allowing a governor to remove the state’s public access chief at any time and limiting what the appointee can use in producing non-binding advisory opinions.

"The new provisions could neuter the public access counselor position and were inserted into an unrelated bill with little warning or public testimony.

[Governor Frank O'Bannon created the advisory office of Indiana Public Access Counselor in 1998 "after a statewide collaboration of seven newspapers found great obstacles in obtaining government information in Indiana." ]

“'He’s issued some opinions I vehemently disagree with,' Sen. Aaron Freeman, R-Indianapolis, said last week of Public Access Counselor Luke Britt. 

"Zach Stock, of the Indiana Public Defender Council, testified that the changes would make the counselor’s job 'very difficult, if not impossible.'

"Current law gives the counselor four-year terms, and says the governor can only fire the appointee 'for cause.' The amended legislation would strike those provisions, and have the counselor serve 'at the pleasure of the governor.'

"That would strip the counselor’s insulation from political processes, leaving the appointee vulnerable to being dismissed after issuing opinions that powerful state leaders dislike."…

One of the past virtues of Kentucky's open records law was the merit status, and relative "independence," of the Kentucky Attorney General's open records staff. At least we could respectfully disagree with, and decline to affix our signatures to, legally unprincipled open records decisions pushed by a politically motivated nonmerit staff -- like the open records decision, issued on Jack Conway's last day in office in 2015 (bearing the signature of a nonmerit employee), declaring that public officials' and employees' electronic communications about public business on private devices or accounts are not subject to the open records law. And at least there was a commitment to continuity in interpretation based on statute, caselaw, and internal precedent 

Sadly, that dramatically changed in the Daniel Cameron administration as a nonmerit staffer assumed management of the open records staff and process -- resurrecting the discredited and poorly reasoned 2015 Conway open records decision that Andy Beshear's open records staff reversed and radically departing from decades of open records interpretation without so much as a legal explanation. 

This led the Oldham Circuit Court to strongly admonish Cameron -- in an appeal of one such Attorney General's decisions-- for "“overturn[ing] decades of decisions by both the Attorney General and the Kentucky Courts. What is most troubling is this opinion offers no rationale for this departure especially in light of the fact that no changes were made by the legislature to these provisions of the Open Meetings Act."……

The inevitable outcome was, for example, the Kentucky Public Pension Authority reliance on the attorney general’s “recent opinion” as the basis for taking final action in closed session.…

It also led Lexington-Fayette Urban County Government to deny a request for ""[e]mails sent and received by Stephanie Raglin, in her capacity as Chair of the Lexington-Fayette Opioid Abatement Commission . . . to include solicitations from businesses and the responses, if any, sent by Chair Raglin [and] . . . messages from the public . . . whether or not Chair Raglin responded" based on the judicially repudiated open records decisions:

"Dr. Raglin does not have a government e-mail address. Moreover, the Opioid Abatement Commission does not have a separate government e-mail address. To the extent that your request seeks to inspect emails from Dr. Raglin's personal email account, your request is denied. See 21-ORD-127; 15-ORD-226."…

With no apparent change on the horizon for Russell Coleman's non-merit led open records staff -- not to mention state lawmakers who annually chip away at the open records law -- it is painful to predict what lies ahead. A process that should be "walled off" from  the political side of the Office of the Attorney General -- and as independent and objective as possible -- continues down this dangerous path. 

For Kentucky and Indiana, the politicization of state public records laws shows no signs of abating.


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