“Former Frankfort commissioner's federal lawsuit remanded back to state court”
The Frankfort State Journal reports on this singularly convoluted case in which plaintiff’s argument turns on the status of an email sent by a city commissioner from a private device — concerning one of the applicants for chief of police — during a closed session of the Frankfort City Commission to discuss applicants’ qualifications for appointment as new chief.
The plaintiff argues that Frankfort officials violated the city’s ethics ordinance by disclosing the contents of the email in bringing charges against him, asserting that the text — which was transmitted to the city by a third party — is not a public record under the Kentucky Attorney General’s recent decisions and/or was exempt under one or more open records exceptions.
https://ag.ky.gov/Resources/orom/2021/21-ORD-127.pdf
[The Attorney General’s legally unsupportable interpretation of “public record” is on appeal — a motion to transfer to the Kentucky Supreme Court is currently pending.
https://forwardky.com/ky-open-govt-coalition-sues/amp/ ]
Frankfort’s ethics ordinance prohibits officials/employees from disseminating confidential information and attempting to assist the financial interest of an employee (in the complaint, the police chief candidate who, as it happens, was •not• selected).
The Defendant, City of Frankfort, argues, among other things, that the email is not “confidential information.”
This much is clear. The concepts of a confidential record/information and an exempt record/information are not synonymous. A public agency may waive an open records exemption and release an “exempt”public record (other than records made •confidential• by state or federal law pursuant to KRS 61.878(1)(k) and (l)).
https://caselaw.findlaw.com/ky-supreme-court/1653243.html
Disclosure of confidential information, as delineated by state or federal law, carries serious legal consequences.
Even under the strained interpretation of “public record” advanced by the OAG — requiring a public agency’s physical possession of the communication — the email at issue was possessed by the city when it was transmitted by a third party to the city.
But this case in the Franklin Circuit Court demonstrates the great danger of the Attorney General’s absurdly narrow definition of public record — requiring the agency’s physical possession of a record related to public business transmitted by an agency official or employee on a private device to qualify as a public record — inspire of the fact that the statutory definition of “public record” expressly extends to records “prepared, owned, used, in the possession of •or• retained by a public agency."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390
Among other things, it opens the door to legal actions postulated on an interpretation of “public record” that deviates from a lone line of attorney general decisions recognizing that “it is the nature and purpose of the record, not the place where it is kept, that determines its status as a public record.”
City of Louisville v. Brian Cullinan, No. 1998-CA-001237-MR and Cross Appeal No. 1998-CA-001305-MR (Ky. App. 1999)
In truth, the current Attorney General’s interpretation does far worse, undermining the foundational principles on which the Kentucky Open Records Act is based.
