The Kentucky Open Government Coalition has once again compiled its list of the Top Ten Open Government Stories of the year, Parts I and II.
In 2022, we were reminded of the critical role of the courts in securing the rights guaranteed under Kentucky’s open government laws as public officials in the legislative and executive branches of government continued to expose their contempt for those rights.
Here is Part I of the Coalition’s Top Ten Open Government Stories of 2022.
➡️1. University abuse of the open records laws reaches new heights.
Kentucky made national headlines with the news that Murray State University officials had invoked the First Amendment to deny an open records request submitted by WPSD-6 news director, Perry Boxx. Boxx requested communications confirming that MSU President Robert Jackson was contacted by Marshall-Calloway County Circuit Court Judge Jamie Jameson — not all judges grasp the importance of open government laws — in an attempt to bury university public radio affiliate WKMS’s story about the judge’s courthouse stroll in his underwear.
https://www.thedailybeast.com/suspended-kentucky-judge-james-t-jameson-…
https://www.techdirt.com/2022/10/14/kentucky-judge-streisands-story-abo…
Jameson has since been removed from office by the Judicial Conduct Commission for this and other ethical breaches. Boxx has since appealed the university’s first of its kind First Amendment denial of his records request to the Kentucky Attorney General where it awaits resolution.
In other news:
• Eastern Kentucky University disciplined an associate professor for purported violations of the Family Educational Rights and Privacy Act predicated on her open records appeal of EKU’s denial of her request for student evaluations.
• Western Kentucky University unsuccessfully invoked the exception to the open records law for “confidential or proprietary” information — the disclosure of which would “permit an unfair commercial advantage to competitors of the entity that disclosed” it — to partially deny WKUHerald.com’s request for the university’s $130,000 contract with NBA Hall-of-Famer Shaquille O’Neal for DJ services at an October 21 pregame concert.
• The Attorney General’s office determined that the University of Kentucky violated the open records law by ignoring part of an open records request for "e-mails and text messages exchanged by the head coach or associate head coach of the university’s football program and two individuals identified by name and believed to be Joe and Kelly Craft" and tweets/retweets on official accounts “that identified a named person believed to be Kelly Craft."
In the same open records decision, the attorney general determined that UK subverted the intent of the open records law by conditioning it’s response on a demand that the requester narrow her request.
Less than two years after the Kentucky Supreme Court issued a stinging rebuke to UK for its defiance of the open records law, the state’s flagship university again proved that — when it comes to the open records laws — it is a slow learner.
• The Kentucky State University Foundation continued to wage a costly and time-consuming battle in the courts — against The State Journal — to establish that it is a public agency subject to the open records law.
The foundation’s position ignores a 1992 Supreme Court opinion holding that the KSU Foundation is a public agency, subsequent appellate court analysis confirming that it remains a public agency for open records purposes, and a 2021 Attorney General’s open records decision reenforcing this line of authority.
The Franklin Circuit Court resolved the issue against the KSU Foundation, but the parties continue to dispute whether all requested records were disclosed.
For more on these stories, see https://kyopengov.org/blog/kentucky-open-government-coalitions-2022-gib…
➡️2. The Franklin Circuit Court orders the Kentucky Public Pension Authority to disclose the $1.2M taxpayer funded Calcaterra report.
In August, Franklin Circuit Court Judge Phillip Shepherd twice ruled that because “[t]he public paid $1.2 million” for the Calcaterra report, “[t]he public has a right to know its contents and decide if it got what it paid for.”
Against the backdrop of Mayberry v KKR — a lawsuit alleging breach of trust and fiduciary duty filed in December 2017 by public employees who are members of the Kentucky Retirement Systems against former hedge fund managers, advisors, and KRS trustees and officers — the retirement systems contracted in 2020 with Calcaterra-Pollack, a New York law firm, to conduct an investigation into “specific investment activities conducted by the Kentucky Retirement Systems to determine if there are any improper or illegal activities on the part of the parties involved.”
Calcaterra Pollack delivered its report to KPPA in May 2021, but KPPA denied multiple open records requests for the report.
Two Louisville attorneys — Glenn Cohen and Jordan White — appealed the denials in separate lawsuits.
In his opinions, Shepherd rejected the agency’s invocation of the attorney-client privilege, declaring that “KPPA can neither shield mere facts from disclosure nor convert them into materials that can be shielded from disclosure by engaging a law firm, at significant taxpayer expense, to gather and summarize such facts.”
He noted that the underlying records in the case suggest bid-rigging in the selection of Calcaterra Pollack to conduct the investigation. He also expressed concern about “whether the purpose and intent of the Report was to fully expose all the relevant facts (and to determine if the KPPA and its employees made mistakes), or if the Report was commissioned to cover up or minimize those mistakes in an effort to convince the OAG to not pursue claims that could prove embarrassing to the current or former management of KPPA.”
KPPA did not appeal the court’s opinion and disclosed the report.
A bid-rigging lawsuit is currently pending in the Franklin Circuit Court. The court will hear oral arguments on KPPA’s motion to dismiss the case in January.
https://www.courier-journal.com/story/news/politics/2022/09/20/lawsuit-…
In a separate matter, KPPA’s former chief investment officer filed a whistleblower lawsuit in December, “alleging he was fired for bringing up concerns about improper oversight of pension funds and the possible theft of millions of dollars.”
https://www.courier-journal.com/story/news/politics/2022/12/16/kentucky…
KPPA has denied all claims against it.
For more on the Franklin Circuit Court’s open records opinions, see https://kyopengov.org/blog/franklin-circuit-court-provides-keys-may-unl…
➡️3. Election officials in Kentucky, and elsewhere, are targeted by abusive public records requests aimed at exposing disproven “election fraud.”
In early September, the Kentucky Open Government Coalition posted about unwieldy and nonsensical open records requests submitted to all 120 Kentucky county clerks by Kentucky residents believed to be acting at the urging of election conspiracy theorist Mike Lindell — aka, the “My Pillow Guy” — and others.
https://kyopengov.org/blog/dont-blame-open-records-law-blame-user-law-w…
We soon learned that Lindell’s effort were not just local. Multiple news sources reported on the deluge of public records requests submitted to election officials across the country.
https://www.cnn.com/2022/09/09/politics/general-election-voting-begins-…
CNN quoted David Becker, of the nonpartisan Center for Election Innovation & Research:
"’Public records requests are a good thing, in general, when they are used to obtain real information that you otherwise might not be able to get to understand how government works.’ But Becker said election officials are dealing with duplicative requests that seem designed to ‘bully’ and ‘overwhelm’ staffers.”
https://www.cnn.com/2022/09/21/politics/public-records-requests-trump-s…
No known open records challenges resulted from this misguided effort in Kentucky — suggesting, perhaps, the requesters’ lack of genuine interest and/or the extent to which Kentucky residents were exploited by Lindell and others to disrupt the November elections.
For more on this story, see https://kyopengov.org/blog/weaponization-public-records-requests
➡️4. Louisville Metro’s continued violation of the open records law makes headlines and a new mayor pledges to correct the problem.
In August, The Courier Journal reported that the Office of the Attorney General “ruled in favor of The Courier Journal in its appeal that argued Louisville Metro Government violated the Kentucky Open Records Act by failing to respond in the legally required timeframe to several journalists' requests and making other errors through the city’s ‘NextRequest’ system.”
That system, Courier Journal attorney Michael Abate observed, was intended “to streamline things, [but] has made it much worse.”
"[I]t is Metro itself that decided to centralize all its responsibilities for complying with the act on behalf of all its departments,” the Attorney General observed. “This office will not judge the wisdom of that policy choice. But, having made that choice, Metro is not excused from having to comply with the act in all its particulars.”
https://www.courier-journal.com/story/news/politics/metro-government/20…
In October, a Louisville advocacy group — the 490 Project — sued Louisville Metro Police “over concerns about its record-keeping practices and ability to provide access to public information in a timely manner” related to complaints against police officers.
"’There is a big trust deficit between the public and LMPD, and LMPD’s refusal to abide by the Open Records Act doesn’t help that deficit,’ said Rick Adams, the attorney representing the 490 Project in the suit.”
https://www.courier-journal.com/story/news/local/2022/10/06/louisville-…
Retiring Metro Council member Bill Hollander in December refocused public attention on Louisville’s failed open records track record in an op-ed that appeared in The Courier Journal.
https://www.courier-journal.com/story/opinion/2022/12/08/move-louisvill…
On December 15, LEO Weekly staff writer Josh Wood obtained a favorable ruling from the Attorney General in his appeal of Louisville Metro’s standard six months delay for production of video. The Attorney General determined that the practice violated the open records law and its five working day statutory deadline for records production.
https://www.ag.ky.gov/Resources/orom/2022/22-ORD-268.pdf
As the Greg Fischer mayoral administration came to a close, LEO examined Louisville Metro open records noncompliance and asked Louisville Mayor-elect Craig Greenberg how he would address the challenge.
https://www.leoweekly.com/2022/12/can-the-greenberg-administration-fix-…
In a written statement, Greenberg responded to Wood's questions about plans for improving compliance:
“Responding to open records requests in a reasonable amount of time is key to an open and transparent government and there needs to be significant improvement in this area. Some of the delays in turnaround time are unacceptable and we plan to budget additional staff in this area.”
Greenberg's commitment to additional staff is an important step forward -- along with a more efficient open records request portal system, for example, GovQA --but an enterprise-wide change in culture may prove a greater challenge than the new mayor appreciates.
For more on this story, see https://kyopengov.org/blog/strike-two-louisville-metro-major-open-recor…
➡️5. The Kentucky Open Government Coalition scores a major legal victory on the issue of access to communications about public business exchanged by public official and employees on private devices and accounts.
In January, Franklin Circuit Court Judge Thomas Wingate "ruled that state officials cannot withhold emails about public business under the Kentucky Open Records Act simply by sending them through their personal accounts on private devices."
https://www.kentucky.com/news/politics-government/article257710593.html
The court left the door ajar for both parties -- the Coalition and the Department of Fish and Wildlife Resources Commission -- to appeal its opinion, expressing confidence that "its brethren at the Kentucky Supreme Court will ultimately resolve this decisive issue."
The Coalition has appealed, the Commission has cross-appealed, and the case has been briefed in the Court of Appeals.
In his January opinion, Judge Wingate flatly rejected the Commission's "possession only" interpretation of the term "public record". It's attorneys unsuccessfully argued that this exceedingly narrow definition excluded communications exchanged by public officials and employees about public agency business (generally emails and texts) on private devices and personal accounts.
Wingate emphasized that “state employees, officials, volunteers, etc. should not be allowed to circumvent the Open Records Act by using a private email account to conduct state business.”
But Wingate concluded that the commission must produce responsive emails only, determining -- notwithstanding the absence of clear and convincing evidence of an undue burden required by statute -- that production of texts would unduly burden the Commission.
The Coalition is represented in the case by Kaplan, Johnson, Abate, & Bird attorneys Jon Fleischaker, Michael Abate, and Rick Adams. They describe the case as one of "vital importance" to the Kentucky open records law.
For the most recent review of the case, see https://kyopengov.org/blog/fish-and-wildlife-commission-files-brief-ope…
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In Part Il, the Coalition examines — among other things — 2022 legislative changes to Kentucky’s open records and meetings laws; the court’s rejection of law enforcement agencies’ argument that all records in an open investigation are shielded from disclosure; and the contributions of Kentucky’s retiring and returning judges in shaping our open government laws.
