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.
Part II of the Kentucky Open Government Coalition’s Top Ten Open Government Stories for 2022 begins with reports that underscore the fact, long recognized in Kentucky law, that illegal public records destruction and mismanagement is the greatest enemy of the public’s right to know.
Here is Part Il of the Coalition’s Top Ten Open Government Stories of 2022.
➡️6. A "teachable moment" at the state and national level for those who underestimate the importance of records management and retention.
The "dry as dust" topic of records management and retention took center stage this year.
The issue surfaced at the national level in extensive reporting on illegal records destruction and mismanagement associated with the Trump administration and the January 6 insurrection.
In late December, we learned that former Trump White House aide Cassidy Hutchinson testified by deposition to the House January 6 committee that “Mark Meadows, the White House chief of staff, burned documents in his fireplace roughly a dozen times in the final weeks of the administration.”
Although it is unlikely that Kentucky officials flushed, burned, or removed public records to private resorts, the 490 Project focused attention on the issue at the local level by suing the Louisville Metro Police Department for prematurely and illegally destroying public records — in this case, complaints leveled against police officer that LMPD designates “informal” — in contravention of state law governing the minimum retention of those records.
That case is pending in the Jefferson Circuit Court.
Records management and retention is central to the Kentucky Open Government Coalition’s case in which we seek judicial recognition that communications about public business — exchanged by public officials and employees on private devices and accounts — are public records subject to both records retention and open records laws.
For more on this story, see https://kyopengov.org/blog/illegal-records-destruction-takes-center-rec…
➡️7. The Kentucky Court of Appeals repudiates Shively Police Department’s argument that state law authorizes nondisclosure of all public records in an open investigation.
In Courier Journal, Inc. v Shively Police Department — an opinion issued on November 10 — a unanimous Court of Appeals panel declared:
“[G]eneral allegations of potential harm which would seem to apply in any criminal investigation” are not sufficient to justify wholesale denial of an open records request for records relating to an open investigation.
The case began in 2020 when The Courier Journal sued the Shively Police Department for failing to provide records relating to a high speed chase that ended in the deaths of a woman, her son, and a baby, and whether officers complied with department policies on pursuits.
The Court of Appeals’ rejected Shively’s claim that the entire investigative file is exempt from public inspection under the open records exceptions for personal privacy and investigative records where proof of harm from premature disclosure is presented — KRS 61.878(1)(a), KRS 61.878(1)(h). But it was the court’s repudiation of Shively’s argument that KRS 17.150(2) authorized blanket denial of the Courier’s request that was, and is, singularly important.
That statute had become the default position for law enforcement agencies determined, for whatever reason, to withhold all records in an open investigation regardless of the existence of any proof of harm from disclosure.
The court has since denied Shively’s motion for rehearing, but a petition for discretionary review to the Kentucky Supreme Court seems likely.
For more on this case, see https://kyopengov.org/blog/kentucky-court-appeals-opinion-rejects-law-e…
➡️8. Lawmakers leave open government bruised but not broken in the 2022 Regular Session.
No Top Ten would be complete without a nod to those architects of opacity who hold seats in the Kentucky General Assembly.
Having secured maximum secrecy for themselves and their records in the 2021 Regular Session, lawmakers turned their attention to open meetings.
• The temporary modifications to both the open meetings and open records laws — necessitated by the state of emergency declared in 2020 — came to an end on March 22, 2022, when the General Assembly adopted a resolution immediately ending the state of emergency.
This meant that public agencies must respond to open records requests within five business days (rather than the temporary ten day deadline for public agency response) and that public agencies can no longer postpone public inspection of agency records in the agency’s office.
• The General Assembly made permanent the 2020 temporary modification to the open meetings law authorizing video-teleconferenced meetings.
Public agencies now have a choice, and discretion rest entirely with them. They may choose to conduct their public meetings in person — as required before COVID (with few exceptions). Alternatively, they may choose to conduct their public meetings by “video-teleconference.”
A “hybrid” meeting — in which the public agency conducts an in person meeting that is also live-streamed to a remote audience — remains an option, but Kentucky lawmakers refused to consider it, and hybrid meetings are not required by law (as in some other states).
A missed opportunity if ever there was one.
Some welcomed the change. Others, including the Coalition, opposed it. We lamented the missed opportunity for mandatory hybrid meetings, questioned the prudence of vesting absolute discretion in agency hands to avoid face-to-face interaction with constituents, and objected to the lack of adequate safeguards for the public’s right to know.
• Lawmaker also added an exceptions to the open meetings law for procurement discussions because, of course, more secrecy in public purchasing is always better than less!
On the plus side, lawmakers enacted a robust Kentucky anti-SLAPP (Strategic Lawsuit Against Public Participation) in a rare bipartisan effort led by Reps. Nima Kulkarni and Jason Nemes.
Kentucky has witnessed more than one meritless lawsuit filed by a public agency against a citizen for exercising First Amendment rights — notably in the area of open records requesters.
At least there was one ray of sunshine in an otherwise bleak legislative session.
For more on the 2022 Regular Session, see https://kyopengov.org/blog/new-laws-leave-open-government-kentucky-brui…
➡️9. Retiring appellate court judges leave an open government legacy of which they can be proud.
Three respected appellate court judges — recognized for their enforcement of Kentucky's open government laws and the policies that support them — retired from the bench.
In October, Kentucky Supreme Court Chief Justice John Minton reflected on his achievements in his final State of the Judiciary Address. He focused, in part, on improvements in judicial branch transparency and accountability under his leadership.
Chief Justice Minton ensured the participation of the Judicial Branch in Kentucky’s Open Door or Transparency Portal — a “bipartisan, multi-agency effort to provide a more transparent, accountable state government” launched in 2009 by former Governor Steve Beshear.
In 2010, Minton “ordered a change that will assure public access to the names of the parties and docket numbers of sealed cases, except those required by law to be confidential, such as some involving juveniles.
“Minton also sent out a reminder that the existence of court cases and records should never be made secret and that court records should be closed ‘only for compelling reasons.’”
Following embarrassing revelations of court employee-only surplus property sales, Minton joined other judicial officials in requesting that Kentucky Auditor of Public Accounts, Mike Harmon, conduct an audit of the Administrative Office of the Court and in adopting a first ever open records policy for the Administrative Office of the Courts that was limited in its scope but intended to “‘set the tone’ for other courts and court agencies.”
In March 2022, Minton announced that the Supreme Court had unanimously agreed to amend its rules to open the secretive lawyer disciplinary process once a lawyer is formally charged with misconduct and given a chance to respond.
“In an interview, Minton said the change brings Kentucky into conformity with the majority of states and ‘strikes the appropriate balance’ between protecting lawyers and the public.”
These measures, along with a substantial body of caselaw advancing the public's right to know, secure Minton's open government legacy.
An op-ed that appeared in The Courier Journal in December celebrated retiring Court of Appeals Judge Irv Maze’s contributions to Kentucky’s laws.
Maze cited as his proudest achievement the Todd County Standard, Courier Journal, and Lexington Herald-Leader “cases where he wrote the opinions upholding the state’s Open Records laws and the public’s right to know about atrocities [documented in child fatality records relating to children who died or were murdered while under the supervision of the Cabinet for Health and Family Services] that were covered up by malfeasant state employees.”
Retiring Deputy Chief Justice Lisabeth T. Hughes is equally worthy of praise for her uncompromising enforcement of Kentucky's open records laws.
It was to Justice Hughes that responsibility for writing the majority opinion in open records cases often fell. She rigorously enforced strict construction of open records exceptions -- particularly those relating to open criminal and administrative investigations -- as required by law.
Hughes also emphasized the statutory duties imposed on public agencies, pointedly admonishing agencies for abdicating those duties.
Proponents of open government owe an equal debt of gratitude to Justice Hughes' as the debt they owe to Justice Minton and Judge Maze. Their judicial robes will be difficult to fill.
➡️10. Judge Phillip Shepherd survives a challenge in a highly politicized “nonpartisan” judicial race.
The preceding nine open government stories confirm the importance of the judiciary in preserving Kentucky’s open government laws.
Because so many open government cases are litigated in the Franklin Circuit Court, it is critical that the judges who occupy the circuit’s two divisions master the complexities of the open records and open meetings laws and understand their importance.
Judge Phillip Shepherd has demonstrated that mastery of the laws, and that understanding of their importance, since he was elected to the bench in 2006.
As the Coalition noted in an op-ed published shortly after his victory:
“It was Shepherd who, in litigation concluded at the trial court level in 2014, exposed a ‘culture of secrecy’ within the Cabinet for Health and Family Services that rendered it ‘institutionally incapable of recognizing and implementing the clear requirement of the law,’ mandating disclosure of child fatality and near fatality records.
“It was Shepherd who rejected the Bevin administration’s attempt to illegally conceal the actuarial analysis of the former governor’s later discredited 2017 pension reform plan.
“And it was Shepherd who, in a 2022 open records trifecta:
• rejected the Kentucky Public Pension Authority’s denial of Louisville attorneys Jordan White’s and Glenn Cohen’s open records requests for the Calcaterra Pollack investigative report into improper and illegal investment activities by the Kentucky Retirement Systems;
• rejected the Kentucky Attorney General misplaced reliance on the preliminary documents and law enforcement exceptions to the open records law, ruling that Daniel Cameron violated the law in denying American Oversight access to records related to his election integrity task force; and
• rejected Kentucky State University Foundation’s argument that it is not a public agency and therefore not subject to the open records law.
“Simply put, Shepherd has a firm grasp of the open records law, the policies that support it, and the inclination of some public agencies to expend enormous energy (and taxpayer dollars) to circumvent it.
“His victory was and is, in no small part, a victory for open government.”
To see the full op-ed, see: https://www.nkytribune.com/2022/11/amye-bensenhaver-shepherds-victory-i…