"Secrecy, deceit, and blind abuse of power."

It's a phrase that describes far too many open records disputes.

In particular, it describes virtually every dispute involving public agency denial based on the "preliminary documents" exceptions to the open records law.

Internal federal government emails, such as those used in writing the Associated Press report, linked below, about the "decision to shelve detailed advice from the nation's top disease control experts for reopening communities during the coronavirus pandemic came from the highest levels of the White House," provide a window into the hows and whys. These internal records often refute public officials' claims

Kentucky law permits state and local agencies to deny the public access to "preliminary drafts, notes, [and] correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency."

By separate statute, it permits agencies to withhold preliminary recommendations and memoranda in which opinions are expressed or policies formulated or recommended.

The two "preliminary documents" exceptions are unquestionably the most overused and abused exceptions to our open records law.

Consider, for example, the actuarial analysis of Matt Bevin's 2017 "Keeping the Promise" pension reform plan.

When voluntarily disclosed by then newly elected Governor Andy Beshear upon taking office, the analysis — which Bevin's legal team characterized as "preliminary" because it was not (thankfully) enacted into law — revealed greater long term cost and delay in fully funding the ailing state pension.

That *is* embarrassing!

https://www.google.com/amp/s/amp.kentucky.com/news/politics-government/…

Or consider Louisville's $2.5 billion/20 year Amazon bid package, the details of which remain shrouded in secrecy.

Notwithstanding a 2019 Court of Appeals opinion affirming the public's right of access, and the fact that numerous cities across the country voluntarily released their failed bids, even posting the bids online, Louisville officials continue to rant that disclosure would constitute "business malpractice" They are exhausting all available avenues of judicial relief.

The case is currently in the Kentucky Supreme Court on discretionary review.

https://amp.courier-journal.com/amp/1965071001

Open government advocates agree, and the public understands, that the preliminary documents exception(s) — generically referred to as the "deliberative process" exemption — have become a catch-all for any record that contains embarrassing or inconvenient truths and therefore *must be withheld*.

University of Florida's Brechner Center Director, Frank LoMonte recently observed, the exception(s) "should not exist, anywhere, period. If you ask 100 people with common sense 'why do we have FOI laws,' 99 will tell you: 'So we can see what went into government decisions.' It's literally the reason the law exists."

At the federal level, FOIA's Exemption 5 shields communications within or between government agencies from disclosure as a way to "encourage open, frank discussions on matters of policy."

Abuse of the exception at the federal level is extreme. In 2019, it was cited as the basis for denial in 74,000 cases.

Lest anyone think this is a partisan issue, or that it is unique to one political party or the other, the "high water mark" for federal agency reliance on the exception occurred in 2013. The exception was cited 81,000 times in that year.

Aware that the exception threatened to swallow the rule of openness, Congress undertook an examination of the problem in 2014, issued a report entitled "FOIA is Broken" in 2016, and later that year enacted the FOIA Improvement Act of 2016.

The FOIA Improvement Act, the Reporters Committee for Freedom of the Press recently observed in an analysis of the deliberative process exemption, heightened the agency's burden in relying on the exception in two ways.

"First, it created what is known as the 'foreseeable harm' standard. This provision states that an agency can withhold information under the deliberative process privilege, as well as the other discretionary exemptions, only if the agency can 'reasonably foresee that disclosure would harm an interest protected by the exemption.' Moreover, the agency must consider if partial documents could be released without causing harm, and take reasonable steps to do so.

Second, the FOIA Improvement Act contains "a 25-year sunset on use of the privilege, meaning that records created 25 years or more before the date requested are not protected by the deliberative process privilege."

The issue of proper use of the preliminary documents/deliberative process exception under the FOIA Improvement Act is currently under review by the U.S. Court of Appeals for the District of Columbia Circuit.

Machado Amaris v. Department of Justice, a case involving access to visa application records, "is one of the first opportunities for a federal appellate court to interpret [the 2016 amendments to FOIA]."

"The court's ruling," the RCFP observed, "could set a precedent for how much FOIA is actually strengthened by the amendments passed in 2016."

Unfortunately, Kentucky is swimming against the tide.

Although our courts regularly — and with few exceptions — demonstrate a clear understanding that Kentucky's law favors openness, some lawmakers and public officials in the executive branch are clearly intent on making it easier on state and local agencies to deny access to public records using these exemptions.

In 2019, for example, a Western Kentucky lawmaker sponsored HB 387. One of many enormously offensive provisions of that bill would have expanded the preliminary documents exception by authorizing agencies to deny access to preliminary recommendations and memoranda *which are not incorporated in the final findings, order, or record*.

https://apps.legislature.ky.gov/record/19rs/hb387.html#HCS1

Had the bill become law, a "preliminary" record that was not expressly incorporated or physically attached to the "final finding, order, or record" would have been forever excluded from public inspection.

The actuarial analysis would have never seen the light of day; nor would Louisville's Amazon bid package.

The bill passed out of committee by unanimous vote and was moving quickly toward passage. Mercifully, it stalled on the House floor.

There is no reason to think that opponents of open government won't make future attempts to amend the law — or simply reject decades of legal authority and "revise" interpretation of the preliminary documents exceptions to achieve the same goal:

Secrecy, deceit, and blind abuse of power.

Our law should, instead, mirror the federal effort to amend FOIA to curb abuse of the preliminary documents exceptions. It was, perhaps, those amendments that enabled the AP to access internal emails concerning the critical but "buried" CDC report.

The amendments "'build on what our Founding Fathers recognized hundreds of years ago: that a truly democratic system depends on an informed citizenry to hold their leaders accountable,'" Reporters Committee attorneys wrote in their friend-of-the-court brief in Amaris v Department of Justice.

If only Kentucky's blindly authoritarian officials would give more than lip service to this fundamental principle.