Stability in interpretation of the law is foundational.

By this we mean the recognition that, absent exceptional circumstances, a judicial or quasi-judicial body must follow precedent — the reasoning in its prior decisions, or decisions of a higher judicial body — when deciding a dispute with similar facts. The Latin term for this doctrine, "stare decisis," means "to stand by things decided."

Attorney General Daniel Cameron, it seems, was absent the day his law school instructor explained this doctrine.

In a recent open meetings decision — resulting from a dispute between the Fish and Wildlife Commission and Larry Richards — Cameron abandoned 27 years of interpretation of the "personnel exception" to the open meetings law, expanding "the intended scope of the exception and improperly conceal[ing] matters otherwise appropriate to the view of the public."

https://ag.ky.gov/Priorities/Government-Transparency/orom/2021/21-OMD-0…

https://www.casemine.com/judgement/us/5914bc01add7b04934799fd6/amp

Richards challenged the commission's closed session discussions that resulted in the 2020 reappointment of Department of Fish and Wildlife executive director Rich Storm and Storm's 2021 "re-reappointment." The latter followed closely on the heels of emergency legislation aimed at securing Storm's reappointment in the face of a legal challenge pitting Governor Andy Beshear's Finance Cabinet against the Department of Fish and Wildlife and — you guessed it — Attorney General Daniel Cameron.

Richards prevailed in part. The Attorney General concluded that the commission failed to observe the requirements for entering closed session on three occasions — requirements found at KRS 61.815 — but quickly dismissed these violations as merely "technical."

The commission seized on this characterization, notwithstanding the fact that the open meetings law declares that "any . . . formal action of a public agency without substantial compliance with the requirements of KRS . . . 61.815 . . . shall be voidable by a court of competent jurisdiction." All indications are that it intends to do nothing to remedy these violations.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23055

But the Attorney General reserved his greatest insult to the open meetings law in what came next. He rejected his predecessors' "extra-textual" interpretation of the open meetings exception for "discussions or hearings that might lead to the appointment, discipline, or dismissal of an individual employee . . . ." That longstanding interpretation excluded reappointment as a permissible closed session topic.

https://ag.ky.gov/Priorities/Government-Transparency/orom/1994/94OMD063…

The Attorney General did so in spite of the fact that the Kentucky Supreme Court has emphatically stated:

"A public agency's authority to go into a closed session relative to personnel matters is severely restricted. Under the personnel exception, a public agency may enter closed session only for 'discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.' KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussions of any other matters are expressly precluded."

https://caselaw.findlaw.com/ky-supreme-court/1607534.html

For twenty seven years. the Attorney General "stood by the thing decided" in determining that reappointment is not synonymous with appointment. In what might cynically be described as a "result driven" open meetings decision, twenty-seven years of caselaw, open meetings decisions, and "standing by the thing decided," was erased at the expense of the public's right to know.

Have past attorneys general departed from precedent? Some have — on those occasions where the open government laws were amended or a longstanding interpretation was repudiated by the appellate courts in published opinions.

By way of example, in 2001 the Attorney General faced the issue of access to personally identifying information in initial crime reports of rape and sexual offenses. For years, the office treated victims of rape and sexual offenses no differently than any other crime victim, assigning no greater privacy interest to these victims than the victim of any other crime.

Attorney General Ben Chandler asked the open records/meetings staff to re-examine the issue. Drawing from a line of recent Sixth Circuit opinions recognizing a privacy right of constitutional dimensions in identifying information in public records, the office carved out a narrow exception to the general rule of disclosure of incident reports.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2002/02ORD036…

Quoting the Attorney General's open records decision at length, the Court of Appeals affirmed, adopting the Attorney General's legal reasoning — although it represented a departure from the reasoning in past open records decisions.

https://caselaw.findlaw.com/ky-court-of-appeals/1244250.html

The emergence of a new body of law recognizing a heightened privacy interest in the case of rape victims and victims of sexual offenses — not political alliances — drove the outcome.

If Richards appeals that part of Cameron's open meetings decision favoring the commission, and if the courts "stand by things decided," there is virtually no chance that Cameron's decision will be affirmed.

More instability; more confusion; and more affronts to the public's right to know.

Again and again, the Coalition has warned: Attorneys General, who are nearly all, at heart, politicians with ambitions to higher office, must scrupulously resist the temptation to politicize Kentucky's open government laws in discharging their statutory duty to decide open records and open meetings disputes.

Absent exceptional circumstances — primarily, amendments to the law or repudiated legal reasoning — open government laws are not Daniel Cameron's to "make over" or "leave his mark on." He should, like his predecessors, "stand by things decided."